5th SLCU MOOT COURT COMPETITION, 2014 Memorandum for the Petitioner 1 Team code: SLCU007 BEFORE THE HON'BLE SUPREME COURT OF INDIA Original Writ Jurisdiction PUBLIC INTEREST LITIGATION W.P. Vishaka v. State of Rajasthan (1997): all women have the right to be free from sexual violence and harassment in their place of work. This led to boycotting Bhanwari Devi and her family. Arguments of Respondent 7. Having heard the learned counsel for the parties, we are inclined to dismiss Criminal Appeal Nos. Common social evils include the caste system, poverty, dowry . The court after a combined reading of Article 51(c) with Article 253 and Entry 14 of Union List mentioned in 7th Schedule found that in the absence of relevant statutes the court can draw inspiration from international law, treaties and conventions to resolve a problem. As a small example, let us assume that a woman finally gets her dream job in a software company. The respondent assisted the Honble court in figuring out an effective method to curb sexual harassment and in structuring the guidelines for the prevention of the same. [1][2][3][4], In India, before 1997, there were no formal guidelines for how an incident involving sexual harassment at workplace should be dealt by an employer. This is an important judgement as it defines the word "sexual harassment", lays out guidelines, preventive measures and duties of the employer . Case analysis : Vishaka & Ors. The Honble court took reference from various international conventions and laws in the absence of domestic law, then connected it to the law of the land and gave birth to a new law altogether. One of the logical consequences of such an incident is also the violation of the victims fundamental right under Article 19(1)(g) to practice any profession or to carry out any occupation, trade or business. Section 354 and 354A of the Indian Penal Code, 1860 were to be referred in any case of sexual harassment but these provisions were not specific to the issue at hand. Therefore, the court after a deep interpretation of: came up with Vishakha guidelines to prevent the taboo that was in the past without any remedy. It is seen as a significant legal victory for women's groups in India. Conclusion . However, the marriage was successful in its completion even though widespread protest. When the offences committed are the one discussed under Indian Penal Code or any other law, the employer is bound to start the prosecution with complaining to appropriate authority. They were however, subjected to harsh cruelty by the female police attendants even to the extent that for procuring evidence her lehenga was demanded from her and she was left with nothing but her husbands blood stained dhoti. The true spirit of Judicial Activism has been portrayed in the Vishaka Judgement and it has been an inspiration to other nations. Despite all this, they were abused and ill-treated by the female police and misbehaved even to an extent that she has demanded her lehenga for evidence. Vishaka v. State of Rajasthan (1997) Main theme: Innovating jurisprudence to prevent sexual harassment at the workplace. Kesavananda Bharati v. the State of Kerala: This was a writ petition under A32 of the constitution. of the Honble court along with Ms. Naina Kapur and Ms. Meenakshi provided assistance to the Honble court in dealing with the said case. [2] Lets dig into the details of the case to know more about how the law regarding the safety of women against sexual harassment evolved in India in the past two decades. Whether sexual harassment at the Workplace amounts to a violation of Rights of Gender Inequality and Right to Life and Liberty? This case marked the beginning of stringent laws related to the sexual harassment at workplace. The Ruling of the Apex Court in Hussainara Khatoon v State of Bihar. DATE OF JUDGEMENT: 13 th August 1997. Also, to prevent any undue pressure from senior levels, the complaints. among the worlds most dangerous countries for women in the year 2018. The learned Solicitor General appearing on behalf of the respondents (with their consent) in this case did something unusual i.e, supported the petitioners. It was stated by the Honble Supreme Court that in the absence of law of the land, the assistance could be rendered from international conventions and statues to the extent that it does not clash with any law of India or do not violate the Indian Constitution. Required fields are marked *. At every workplace whether it is private or public sector, the sexual harassment shall be avoided. The result is the Supreme Court judgement, which came on 13th August 1997, and gave the Vishaka guidelines. The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counselor or other support service, including the maintenance of confidentiality. Earlier, Section 354 of Indian Penal Code, 1860 gave the punishment for such offence. Arguments by Petitioners 6. This case really has its importance in enforcing the fundamental rights of women. Mahatma Gandhi once said The day a woman can walk freely on the roads at night, that day we can say that India has achieved independence.. The Vishakha judgment together with its importance also contains the rationality within the sense that it doesnt over-pressurize the employer in constructing a redressal mechanism. Such complaint mechanism should ensure time bound treatment of complaints. Whether the employer has any responsibility when sexual harassment is done to/by its employees? This is implicit from Article 51(c) and the enabling power of Parliament to enact laws for implementing the international conventions and Vishaka v State of Rajasthan, (1997) 6 SCC 241, AIR 1997 SC 3011 [MEMORIAL FOR PETITIONER] Page 21 TLL-Ansal University's 1st National Online Moot Court Competition 2020 norms by virtue of Article 253 read . [2] Let's dig into the details of the case to know more about how the law regarding the safety of women against sexual harassment evolved in India in the past two decades. Supreme Court of India. Verma C.J., Sujata V. Manohar & B.N. The complaint mechanism must, if necessary, provide a complaints committee, a special counsellor or other support service such as ensuring confidentiality. Vishaka & Ors. For further assistance the committee shall also include NGOs or someone aware with such issues. Subscribe to our mailing list and get interesting stories handpicked for you. The Vishaka Guidelines Of 1997. Whether the court can apply international laws in the absence of any legislative measures to fulfill the need? On 5th May 1992, the sub-divisional officer (SDO) along with the Deputy Superintendent of Police (DSP) went and stopped the said marriage. Bhanwari also lost her job amid this boycott. Why is it so hard for a woman to achieve the same freedom and opportunities that a man gets with not much of an effort? S Verma, C.J, Mrs Sujata, V. Manohar and B.N Kirpal, JJ. CITATION: (1997) 6 SCC 241. The Supreme Court held that the detention of these prisoners was illegal as it completely violated the Fundamental Right to Life and Liberty under Article 21 of the Indian Constitution. The progress made at each hearing culminated in the formulation of guidelines to which the Union of India gave its consent through the learned Solicitor General, indicating that these should be the guidelines and norms declared by this Court to govern the behavior of the employers and all others at the work places to curb this social evil. Now, after 16 years of Vishakha case, on the basis of the guidelines provided by Supreme court the Parliament has enacted Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The judgment of August 1997 given by a bench of J. S. Verma (then C.J.I)., Sujata Manohar and B. N. Kirpal, provided the basic definitions of sexual harassment at the workplace and provided guidelines to deal with it. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector. This must be irrespective of the fact that whether the act constitutes an offense under the Indian Penal Code, 1860, or any other law as such. Share & spread the love"The poor in their contact with the legal system have always been on the wrong side of the law. MOOT COURT MEMORIAL ON BEHALF OF PETITIONER 7th pro bono national environment law moot 2013 before the supreme court of rambo original writ jurisdiction public . Wrote an article on Sexual Harassment during the workplace providing with the landmark case of Vishakha vs. State of Rajasthan. AIR 1991 SC 1886 17 Lt. Col. Sawai Bhawani Singh and Ors v. State of Rajasthan and Ors ., (1996) 3 SCC 105 . This campaign was subjected to disapproval and ignorance by all the members of the village, even though they were aware of the fact that child marriage is illegal. Guidelines issued by the Supreme Court based on CEDAW. Title of Case: Vishaka & Ors v. State of Rajasthan & Ors on 13 August, 1997, Bench: Cji, Sujata V. Manohar, B. N. Kirpal. They put forward their argument that the indecent acts of sexual harassment of women at Workplace violate the fundamental rights enshrined under Article14, 15, 19(1)(g) and 21 of the Constitution of India. kripal on account of writ petition. Vishal Damodar Patil vs. Vishakha Damoda. (c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946. J.S. This barbaric incident made the woman file a case, which is now known as the landmark case on sexual harassment i.e. See you there. Then the Honble court took reference from the provisions of Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)[4]. The petition was filed after Bhanwari Devi, a social worker in Rajasthan, was brutally gang raped for stopping a child marriage. Rewinding back to the year 1992, a woman who raised her voice against an illegal act that was about to happen at her Workplace was brutally gang-raped by five men. The court noted that it was discriminatory when the woman has reasonable grounds to believe that objecting to sexual harassment would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. 6. 2023 Latest Caselaw 1181 Raj. LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. The Honble Supreme Court framed the guidelines to prevent sexual harassment at the Workplace, known as. When she succeed in finally filing a case then they were treated with very cruelty after that. It was stated by the Honorable Supreme Court that women have fundamental right of freedom from sexual harassment at workplace. JJ JUDGEMENT DATE 13 August 1997 Introduction The Vishakha v. State of Rajasthan is a landmark judgment case in a history of sexual harassment by an Indian judiciary. Employer or other answerable persons are bound to preclude such incidents from happening. Vishaka v. State of Rajasthan: This case was against sexual harassment at workplace, brought by Bhanwari Devi to stop the marriage of a one-year-old girl in rural Rajasthan. The petitioners brought the attention of the Honble court to the loophole that the legislation has regarding the provision of a safe working environment for women. Vishaka case of sexual harassment at workplace is a case of landmark judgment by Supreme Court of India. For this act, she gained full support from the members of her village. Lets dig into the details of the case to know more about how the law regarding the safety of women against sexual harassment evolved in India in the past two decades. When she lodged a complaint against accused, the police department refused to file the case by giving one pretext or other. I also have great liking in novels both fiction (especially philosophical) and non-fiction. MEASURES FOR PREVENTION Employers or persons in charge of the workplace must take preventive measures such as an express prohibition of sexual harassment in the form of notifications or circulars, penalties by the government against the offender, appropriate work conditions in respect of hygiene, health and leisure. The apex court found authority in filling the legislative gap by making law so as to maintain the Independence of Judiciary and its role envisaged under Beijing Statement of Principles and Independence of Judiciary in LAWASIA region which was signed by the Chief Justice of the Asia Pacific in 1995 as those representing the minimum standards necessary to be observed in maintain an independent and effective Judiciary. ), Sujata Manohar (J. These guidelines are also known as Vishakha guidelines. This article is written by Sai Gayatri,pursuing an Introductory Course: Legal Writing For Blogging, Paid Internships, Knowledge Management, Research And Editing Jobs fromLawsikho.com. This incident revealed the consequences to which a employed woman faces and the pressing need for protection by any other procedure in the lack of statute. Case Name: Vishaka and Ors vs State of Rajasthan and Ors (1997) Petitioner: Vishaka & Ors. Verma C.J.I., Sujata V. Manohar, B.N. Gender Equality finds place in Fundamental Rights enshrined under Article 14, 19 & 21. Cases Referred: 1. Why is it so hard for a woman to achieve the same freedom and opportunities that a man gets with not much of an effort? Judgement. The Judiciary derived this authority from Articles 51(c) and 253 r/w Entry 14 of the Union List of Seventh schedule of the Constitution. Later, it was established by the villagers that the police visits were a result of Bhanwari Devis actions. Kirpal. Why? 4. 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