Vishaka v. State of Rajasthan: Innovating Jurisprudence to Prevent Sexual Harassment

Aashka Vyas*

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Abstract

The malady of sexual harassment at the workplace has steered its ugly head in different fields as an increasing number of women have entered the workspace in a developing economy like India. From the navy, the army, and the police to potential startups, from big multinational companies to different professional sports- it is depressing that no sector has been left behind. It was high time that the Supreme Court stepped into and brought this issue into the public domain.

The judicial activism had reached its peak in Vishaka v. State of Rajasthan. This was the first time the Supreme Court relied on international treaties to a great extent; the Supreme Court provided the first attested definition of ‘sexual harassment’ in India; and was challenged with a statutory vacuum, it went out of the box and proposed ‘judicial legislation’.

Introduction- What is Sexual Harassment?

In Rajasthan, Bhanwari Devi's tale helped form a nationalist movement and invigorated rape victims to come forward and fight their rapists. The petition filed against the State of Rajasthan and India's Union by Vishaka and four other women's organizations in Rajasthan resulted in the landmark judgment, popularly known as the Vishaka Guidelines. The August 1997 judgment presented the veryconcept of sexual assault at the workplace. The Supreme Court presented the precise guidelines, making it compulsory for the employer to provide a composite process on gender equality. Sexual harassment is unconstitutional under Articles 14, 15, 19(1)(g) and 21 of the Constitution. It was in 1997 for the first time sexual harassment had been explicit- legally defined as an unwelcome sexual gesture or behavior whether directly or indirectly as: “(i) Sexually coloured remarks (ii) Physical contact and advances (iii) Showing pornography (iv) A demand or request for sexual favours (v) Any other unwelcome physical, verbal/non-verbal conduct being sexual in nature.”

Contemplating Globally, Performing Local: Comprehending International Treaties

The Constitution of India does not have a valid stand on the international treaties that have been signed or ratified by the government but not legislated upon. Since there was no legislation in India on sexual harassment at the workplace and to avoid long periods of legislative inactivity, the Court stated it was free to rely on international treaties.

Following Article 51 (c) of the Constitution that talks about depending upon international laws and treaty obligations, the Supreme Court sought ways and listed down the Vishaka guidelines through the Convention on the Elimination of All Forms of Discrimination against Women( CEDAW- signed in 1980). Based on CEDAW, the Supreme Court issued a series of directives to protect women against sexual harassment at the workplace, binding and enforceable until proper legislation is not enacted.

Can the Supreme Court be an Interim Parliament?

However, the real question was- whether the Judiciary (Supreme Court) has the power to encroach on the legislature’s jurisdiction or be an interim Parliament in the Vishaka case? If we look at it from one side, the Court essentially framed a set of guidelines that would be exercised until proper legislations are not enacted. Retired Supreme Court judge, Justice Ashok Kumar Ganguly said that: “judicial intervention is permissible in situations where there is a legislative void, that accomplished jurists share this opinion, and that the cases where the Supreme Court played such a proactive role were ‘applauded internationally’.”

Moreover, the Constitution makes a provision empowering the legislature to enlarge the Supreme Court's jurisdiction to pass any decree and orders necessary for doing 'complete justice'. It is a court of record to punish its contemnors. The Court has the constitutional power of intervention, which can be invoked to ameliorate their miseries from repression, governmental lawlessness, and administrative deviance.

On the other hand, a two-judge bench of the Supreme Court was opposed to whether judges can play parliamentarians in the University of Kerala v. Council, Principals’, Colleges, Kerala and Ors.(University of Kerala). Justice Markandey Katju opined that: “there were ‘hundreds of pressing social needs’, but it was not within the Court’s domain to address them just because there were no laws related to them. He also elucidated some striking points related to the Supreme Court’s role in Vishaka judgment, that while such stringent laws were needed against sexual harassment at the workplace and should be followed according to Article 141 of the Constitution, the question remains whether such guidelines or directives by the Court are constitutionally legitimate? The former Supreme Court Judge also questioned whether the Court could convert itself into an interim Parliament and make laws until the Parliament drafts fair laws. In the case of Vishaka v State of Rajasthan, reported in (1997) 6 SCC 241, the Supreme Court lamented that the legislature had not brought in comprehensive legislation to deal with sexual harassment of women in the workplace.

It declared the law as follows:

“Given that above, and the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at workplaces, guidelines and norms are at this moment laid down for strict observance. This is done in exercise of the power available under Article 32 for enforcement of the fundamental rights, and it is further emphasized that this would be treated as the law declared by the Supreme Court under Article 141 of the Constitution of India.”

In view of the conclusion that, when faced with a legislative vacuum, the Court can only apply international law rules, and not apply a separate definition as to what legislation should be, before appropriate laws are framed by the legislature on the subject in question, the Constitution Bench should demarcate the legislative domain and the judicial area.

Vishaka guidelines: A Precursor to Proper Legislation

The Supreme Court then released a series of ‘guidelines’ based on CEDAW against Sexual Harassment at the Workplace. These guidelines were strictly complied with in all places of work (private or public) and is legally binding and enforceable until sufficient laws on the subject have been made.Some authors have properly noted the institutionalization of judicial legislation by Vishaka. The court’s guidelines are as good as laws and the court intended that they would be operated in the same manner as statutes. That is strengthened by the fact that the judgments of the Supreme Court are 'law' in compliance with Article 141 of the Constitution and legally binding on all other Indian courts. This deduction is clearly not influenced by the fact that the rules were transitory; after all, the law passed by Parliament works before Parliament chooses not to. The Supreme Court, instead of temporarily filling a legislative void, redressed the democratic deficit.

Guidelines or Legislation: Developments after Vishaka

Vishaka was only supposed to be an interim option. Since the judgement, the National Commission for Women (NCW) compiled a Code of Conduct for Workplaces and drafted bills in 2000, 2003, 2004, 2006 and 2010; all fell through different stages. In 2010, the bill to prevent Sexual Harassment at Workplaces was tabled in Parliament. The bill featured many progressive measures: penalty for employers, compulsory reporting to the Internals Committee of the organizations and relief for victims and complainants. The bill, not only gives protection to the employees but also clients and customers. The bill was sharply criticized for not including the domestic workforce; it has now been amended to overcome the drawback. Although the bill addresses an extremely relevant issue, it fails to be inclusive because it does not consider harassment against men. Harassment against men is rare but not unheard of. On the whole, the bill was considered to be a huge step for women and it became an Act in 2013- The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Conclusion: Why is there a need of a more Comprehensive Legislation

Vishaka was a groundbreaking judgment as the Supreme Court’s guidelines elucidated that sexual harassment at the workplace was an actual problem that needed to be addressed and brought into public scrutiny. Although these guidelines had impacted and improved sexual harassment at workplaces, not much has changed at the ground source. A writ petition was filed in the Supreme Court for proper implementation of the Vishaka Guidelines by public and private sectors. Several cases still surface of women facing workplace sexual harassment, women being clueless in regards reporting complaints, of fear, of reporting because of being victimized, and of not being informed and sensitised about the policies of sexual harassment during the hiring process. Despite the provision made by Vishaka, more than half of the workplaces in the formal and informal sectors need to constitute an internal complaints committee. Unfortunately, these guidelines have proven to be remedial than a preventive step. The unawareness of such guidelines by most working women in the country proves that it is essential to enact laws based on such subjects as it would provide sequential, systematic, reformative, and preventive measures. Vishaka protected in some instances, and a law would be enforceable and binding in all cases. After analysing India’s jurisprudence after Vishaka, it is affirmed that the Judiciary had treated sexual harassment at workplaces as a severe issue but only when there is comprehensive legislation can make the workplace gender-responsive and provocation-free environment.

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[*] Aashka Vyas is an undergraduate student from Jindal Global Law School, Sonepat. For any discussion related to the article, she can be contacted via mail: vyasaashka@gmail.com

Preferred Citation – Aashka Vyas, “Vishaka v. State of Rajasthan: Innovating Jurisprudence to Prevent Sexual Harassment", Syin & Sern Law Review, Published on 6th March 2021.