Need For Broadening The Scope Of Sexual Harassment At Workplace

10th October, 2023 - 6:18 am Categories: Posh Act 0 Comments

Introduction

The case of Visaka v. state of Rajasthan (hereinafter also referred to as the “Vishaka case”) unfolded in the year 1997 at the time where no specific legislation pertaining to protection of women from sexual harassment at workplaces existed. The Vishaka case reached the Apex Court by way of a Public Interest Litigation filed by numerous NGOs and social activists shortly after the gruesome gang rape of Bhanwari Devi in a small village in Rajasthan.

In addition to safeguarding women’s rights and dignity at work, the Apex Court directed the Legislature to fill the lacuna and stipulated the Vishaka Guidelines in the meantime. The decision rendered in the Vishaka case was a turning point in the struggle against the evil of sexual harassment at workplace.

Analysis And Way Forward

The Vishaka[1] judgment came into being as a result of a Public Interest Litigation filed by a multitude of social activists and NGOs subsequent to the brutal gang rape of Bhanwari Devi in a small village in Rajasthan.

In the year 1992, Bhanwari Devi, a social activist in Rajasthan was grotesquely gang raped by five men of the Gujjar community, out of spite,because she took an active part in protesting to stop the child marriage of an infant at one Ramakant Gujjar’s family. The Vishaka case is one of the landmark judgments that served as a precedent for the implementation of the POSH Act.

[Image Sources : Shutterstock]

Sexual Harassment at Workplace was first recognised in the case of Vishaka v. State of Rajasthan. The Vishaka guidelines were stipulated by the Apex Court in this case and the legislative authorities were directed by the Apex Court to pass an adequate legal framework to address the peril of sexual harassment in the workplace. Before the Vishaka guidelines were formulated, complaints for sexual harassment at the workplace were filed under Section 354 and Section 509 of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”). Section 354 and Section 509 of the IPC relate to outraging a woman’s modesty. These provisions do not specifically deal with the peril of sexual harassment at the workplace. In fact, prior to the Criminal Law Amendment Act, 2013, no particular provision pertaining to sexual harassment existed in the IPC. In absence of any law dealing with sexual harassment against women in the workplace, the Vishaka Guidelines were stipulated by the Apex Court in the interim in the Vishaka case. The Apex Court laid down the Vishaka Guidelines with anticipation of enactment of legislation soon after but it took more than fifteen years since the stipulation of the Vishaka Guidelines for the POSH Act to come into force. Justice J.S. Verma who delivered the judgment in the Vishaka case held that the incident pertaining to sexual harassment in the workplace are violative of the fundamental rights under Articles 14, 15, 19 and 21 of the Indian Constitution. The Apex Court was of a view that right to freely profess any profession or carry out any business, trade, occupation etc. is dependent on a safe working environment. In order to safeguard this right in absence of any specific legislation dealing with it, the Apex Court relied on international conventions so as to protect the right to safety and dignity of women in the workplaces as implicit under Articles 14, 15, 19 and 21 of the Indian Constitution.

Even though the judgment rendered in the Vishaka case filled a lacuna that earlier existed and led to the enactment of the POSH Act, it failed to cover sexual harassment of persons other than women in the workplace. The scope of the POSH Act is limited to safeguarding only the rights of women at workplaces. It specifically caters to the gender-based discrimination faced by women. However, in the present times, where society has become more progressive, laws that have a wider scope are needed to grant protection against the peril of sexual harassment against individuals of any gender. The LGBTQ+ community, for instance, faces workplace harassment and discrimination. It is understandable that more than twenty-five years ago, in 1997 when the judgment in the Vishaka case was delivered, the society was not as woke and progressive as it is in the present times. However, with the changing perceptions of the society and increased gender sensitisation, it is imperative that an evil as gory as sexual harassment at workplace ought not be restricted to a single gender but include sexual harassment against each and every victim in the workplace irrespective of their gender.

Conclusion

To summarize, the ladmark decision of Vishaka v. State of Rajasthan represented a turning point in the fight against sexual harassment in the workplace in India. Despite the fact that the said case was an important step in combating sexual harassment there is a need to widen the scope of sexual harassment in India and include within its meaning sexual harassment against any individual of any gender given the changing nature of society. This would help in the construction of a safe and equal society for all who are victims of sexual harassment at workplaces.

Author: Sonakshi Pandey, Symbiosis Law School, NOIDA, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

References

1. Pathak, N and Vyas, A ‘Case Comment on Vishaka vs State of Rajasthan’ [2018] Supremo Amicus 3, 320
2. Sharma, A, ‘Construction of Statute; with Reference to Case of Vishaka&Ors. vs. State of Rajasthan (1997) 6 SCC 241’ Supremo Amicus, 24, 446
3. Vishaka v. State of Rajasthan, (1997) 6 SCC 241

[1]Vishaka v. State of Rajasthan, (1997) 6 SCC 241