vishakha and others case important notes (sexual harrasment case)

Visakha and Others

Vs.

State of Rajasthan and Others

(1997)6 SCC 241

C

ONSTITUTION OF INDIA-Arts. 14, 19 &21 and 15(1),(3),42,51-A(a),(e)&(f) and 32 and 141, 73,50, 51(c),253 & schedule VII List I Entry 14.

This case is for the enforcement of the fundamental rights of working women. In this the emphasis is given on the gender equality and to prevent sexual harassment of working women in all working places through judicial process.

The incident in this case effect the Gender equality and the Right to Life and Liberty. Arts 14, 15, 21, 19(1) (g) violation attracts remedy under Art32 for the enforcement of the fundamental rights of women.

·        Writ of mandamus was used in this case to be effective.

·        Respondents were Union of India and State of Rajasthan.

·        Shri Fali S. Nariman appeared as amicus curiae.

·        This case is judicial intervention for filling the vacuum in existing legislation. Relevant provisions are:

Article 15:

“15. Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.”

Article 42:

“42. Provision for just and humane conditions to work and maternity relief.”

Article 51-A:

“51-A. Fundamental duties. - It shall be the duty of every citizen of india-

a)    to abide to the Constitution and respect its ideals and institution,..

b)   – d)

e)    to promote harmony and the spirits of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women  ” 

Article 51:

“51. Promotion of international peace and security-

a)-b)

c) foster respect for international law and treaty obligations in the dealings of organised people  with one another”

And

Article253:

“253. Legislation for giving effect to international agreements.- Notwithstanding anything in the foregoing provisions of this chapter, parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.”

Seventh Schedule:

“List I –Union List

14. Entering into treaties and agreements with foreign countries and implementing of treaties, agreement and conventions with foreign countries.”

·        There was absence of domestic law for the sexual harassment of working women at all workplace therefore in this case help of  the contents of international conventions and norms were significant for the purpose of interpretation of the guarantee  of  gender equality at work

·        Article 51(c) enable parliament to enact laws for implementing the international conventions and norms by virtue of Article 253 read with entry 14 of the Union List in Seventh schedule of the Constitution of India. Therefore Parliament has the power to make law under executive power of Union.

·        Therefore it was concluded Article 32 gives power to the court for enforcement of fundamental right and the executive power of Union have to meet to protect the women at work.

·        Gender equality includes protection from sexual harassment and right to work with dignity, which is universally recognised basic human right.

·        In the absence of legislation create the role of judiciary envisage for the foreign law. Beijing statement of principles of Independence of the Judiciary in the LAW ASIA region. These principles were accepted by the Chief Justices of Asia and Pacific at Beijing in 1995.

Important provision of CEDAW was significant for the present context.

·        The Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) is an international convention adopted in 1979 by the United Nations General Assembly. Described as an international bill of rights for women, it came into force on 3 September 1981. The United States is the only developed nation that has not ratified the CEDAW. Several countries have ratified the Convention subject to certain declarations, reservations and objections.

Article 11:

“1. States parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:

(a) The right to work as an inalienable right of all human beings;

(f) The right to protection of health and to safety in working conditions including the safeguarding of the function of reproduction.

Article 24:

States parties undertake to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognized in the present convention.”

As per the convention sexual harassment includes:

Sexual harassment includes such unwelcome sexually determined behaviour as physical contacts and advances, sexually-colured marks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problems; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting and promotion, or when it creates a hostile working environment. Effective complains, procedure and remedies, including compensation, should be provided.

·        Now in this convention The Government of India has ratified the above resolution, in the last world conference on woman. Therefore Court having no hesitation  for the purpose of construing the nature and ambit of constitutional guarantee of gender equality in our constitution.

·        Principle of legitimate expectation is used by judiciary to fill the vacuum.

·        With the help of case of Nilabati Behra v.s State of Orissa. It was conclude that international convention and norms can be used for construing the fundamental rights.

·        Therefore the guidelines and norms were lay down until a legislation is construed for the above purpose. Article 32 with Article 141  for the law declared by the court.

The Guidelines and Norms prescribe herein above are:-

1.       Duty of the employer or other responsible persons in workplaces and other institutions.

2.     Definition:

For this , purpose, sexual harassment includes such unwelcome sexually determined behavior (whether direclt or by implication) as:

(a) Physical contact and advances;.

(b) a demand or request for sexual favours;

(c)  sexually-coloured remarks;

(d) showing pornography;

(e)  any other unwelcomed physical, verbal or non-verbal conduct of sexual nature.

Where any act give a reasonable apprehension  where she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health or safety problem. It is very discriminatory in nature to decide where its create hostile work enviornment.

3.   Preventive steps:

Private or public sector should take appropriate steps to prevent sexual harassment and should follow the steps:

(a)   Prohibition of sexual harassment by notified, published and circulated in appropriate ways.

(b)  Rules/regulation of government and public sector bodies should incorporate guidelines for prohibiting sexual harassment and incorporates appropriate penalties against offender.

(c)   For private employers the steps should be taken as is standing order under the Industrial Employment (standing orders) Act, 1946.

(d)   Appropriate work conditions should be provided in respect of work , leisure, health and hygiene and there should not be hostile environment.

4.     Criminal proceedings:

Where such conduct amounts to a specific offences under the Indian Penal Code or any other law, employer should do complaint before appropriate authority.

The victim of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

5.     Disciplinary action:

Where it amounts to misconduct provisions as per the rules should be done.

6.     Complaint mechanism:

Whether or not such conduct constitute an offence under law or a breach of service rules, an appropriate complaint mechanism should be created in the empl0yer’s organisation for redress of the complaint madeby the victims.

7.     Complaint Committee:

The above means should seen and special counselor or other support service should be provided including the maintenance of confidentiality.

It should be headed by woman, and not less than half of its members should be women. There should not be influence by any one of senior cadre.

8.     Workers initiative:

Employers should be allowed these issues in discussion.

9.     Awareness:

Rights of female employee should create.

10.   Third party harassment:

Where the sexual harassment by any third party or outsider, thier employer and person in charge take all necessary steps to assist affected persons.

·        These guidelines will not prejudice  with any right available under Protection of Human Rights Act, 1993.

freedom

Whether the freedom of press guaranteed by Art. 19(1) (a) entitles the press to publish such unauthorised account of a citizen's life and activities and if so to what extent and in what circumstances?

The question regarding the freedom of press vis-a-vis the right to privacy of the citizens of this country was tried to be solved by the Supreme Court. It also raises the question as to the parameters of the right of the press to criticise and comment on the acts and conduct of public officials.

It was observed by the Hon’ble bench that-

“ The first aspect of this right must be said to have been violated where, for example, a person's name or likeness is used, without his consent, for advertising or non-advertising purposes or for that matter, his life story is written whether laudatory or otherwise and published without his consent as explained hereinafter. In recent times, however, this right has acquired a constitutional status. We shall proceed to explain how? Right to privacy is not enumerated as a fundamental right in our Constitution but has been inferred from Art. 21.”

Further they stated-

The freedom of press is concerned it flows from the freedom of speech and expression guaranteed by Art. 19(1)(a). But the said right is subject to reasonable restrictions placed thereon by an existing law or a law made after the commencement of the Constitution in the interests of or in relation to the several matters set out therein. Decency and defamation are two of the grounds mentioned in clause (2). Law of Torts providing for damages for invasion of the right to privacy and defamation and Sections 499/500, I.P.C. are the existing laws saved under clause (2).

Lastly they concluded-

(1) the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Art. 21. It is a "right to be let alone." A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. None can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.

(2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including Court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency (Article 19(2)) an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being published in press/ media.

  

Thakur Dongar Singh Vs Krishna Kan AIR 1958 MP 216

It should also be borne in mind that in the matter of defamation the position of newspapers is not any way different from that of members of the public in general. The responsibility in either case is the same. The degree of care and attention is no way less in the case of newspapers publications than that required from ordinary men. This is clear from the observations of their Lordships of the Privy Council in Arnold V/s. King-Emperor, 41 Ind App 149: (AIR 1914 PC 116) (A)

SECTION 125, Criminal Procedure Code in India provides for the maintenance for the wife who are neglected by there husbands, also to there childs and parents. which follows in bare law as mentioned below-

125. Order for maintenance of wives, children and parents.

(1) If any person leaving sufficient means neglects or refuses to maintain-

(a) His wife, unable to maintain herself, or

(b) His legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) His legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) His father or mother, unable to maintain himself or herself,

A Magistrate of' the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate¹[***] as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct::

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of' sufficient means.
²[Provided further that the Magistrate may, during the pendency of the Proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person]

Explanation. For the purposes of this Chapter.

(a) Minor means a person who, under the provisions of the Indian Majority Act, 1975 (9 of 1875) is deemed not to have attained his majority;

(b) "Wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

³[(2) Any Such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.]

(3) If any Person so ordered fails without sufficient cause to company with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month's ⁴[ allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the day on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation. If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to just ground for his wife's refusal to live with him.

(4) No wife shall be entitled to receive an allowance from her husband under this section she is living in adultery, or if, without any sufficient reason, she refuses to live with her, husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to, live with her, husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

1. The words "not exceeding five hundred rupees in the whole" omitted by Act 50 of 2001, sec.2 (w.e.f. 24-9-2001).

2. Ins. by Act 50 of 2001, sec.2 (w.e.f. 24-9-2001).

3. Subs. By Act 50 of 2001, sec 2, for sub-section (2) (w.e.f. 24-9-2001).

4. Subs. By Act 50 of 2001, sec 2, for "allowance" (w.e.f. 24-9-2001).


The underline portion of the section are relevant to be noticed,this depicts that we have so strong jurisprudence law for the law of maintenance but where we lack-
i feel we lack in our pecuniary thinking,towards law, we think for so short term. The person who are facing this problem are either so educated or they are illiterate. To solve this problem first we have make changes in our mind sets, to be find solution of this problems.
Even the things should be noted that code of Criminal procedure is dealing with this problem, i feel the main objective behind this enactment is that, the fees to file this litigation for maintenance should be nominal which can be afforded by any one who can claim maintenance under this section.