VISHAKA VS STATE OF RAJASTHAN: COMPARATIVE ANALYSIS OF INDIA AND ISRAEL

Nandani,

Chanakya National Law University, Patna

Nikhil Kumar,

Chanakya National Law University, Patna

SEXUAL HARASSMENT IN INDIA

The Vishaka ruling, which acknowledged sexual in 1997, sexual harassment legislation was passed in India, defining the crime and recognizing harassment as a violation of women's fundamental right to dignity and equality. Sexual harassment on the job in India was illegal until this ruling. IPC has long included criminal measures meant to protect women’s modesty, including those that penalize certain types of sexual harassment. But nobody really thought this rules were about advancing gender quality, and they weren’t really enforced very well.

A famous case is Rupan Deol Bajaj v. K.P.S. Gill, in which the Supreme Court ruled that the officer was guilty of violating sections 354 and 509 of IPC. In a separate case, Radha Bai v. Union Territory of Pondicherry, the appellant detailed how the Home Minister of Tamil Nadu subjected her to sexual harassment and molestation after she revealed his illicit relationships with women residing in a shelter. The complainant was terminated from employment, but the Supreme Court stepped in almost seventeen years later to determine that she was owed full retirement benefits and compensation for her dishonor and shame. Additionally, the court ordered the state and the harasser to cover the costs of these damages.

After a state government employee was gang raped and authorities ignored her allegations, a public interest appeal was filed with the Supreme Court, leading to the Vishaka ruling. To combat sexual harassment and assault in the workplace, a women's rights group petitioned the Supreme Court to order the state to establish a task force to develop regulations and processes. The right to life, liberty, and the pursuit of happiness (Articles 21, 14, and 15), as well as the right to participate in authorized employment (Articles 19(1)(g)), are all violated when women are subjected to sexual harassment, says the Supreme Court. In response to a lack of legislation, the Supreme Court of India outlined specific procedures to ensure the preservation of these rights, drawing on its authority under Article 32 of the Indian Constitution, the Convention on the Elimination of All Forms of Discrimination Against Women [CEDAW] (Article 11), and the General Recommendations 19 and 22-24 issued by the CEDAW Committee.

Following the broad guidelines laid out by CEDAW, the Supreme Court has defined Sexual harassment can take many forms, including but not limited to: unwanted advances, requests for sexual favors, and physical or verbal conduct that is overtly sexual, pornography, sexually colored remarks, and physical contact. In addition to being potentially dangerous, such behavior is humiliating. If a woman has cause to think that raising an objection to the behavior may hurt her chances of being hired or promoted, or if it makes the workplace unpleasant, then the court has ruled that this kind of behavior constitutes discrimination.

Both public and private sector employers have a responsibility to combat sexual harassment in the workplace and to hold perpetrators accountable according to the court's ruling. In order to prevent sexual harassment in the workplace, employers must implement policies that employees are made aware of, enforce disciplinary and/or criminal consequences for offenders, and protect employees from harassment by third parties. In addition, the court ordered the establishment of a complaint mechanism inside the employer's organization to address the victim's complaint; the committee must consist of at least 50% female members.

On a symbolic level, the Vishaka verdict is important because it acknowledges that sexual harassment is an issue and that many women face it frequently at work. Despite the lack of passed legislation, the Supreme Court issued instructions that are now deemed laws, which led to the acknowledgment and elimination of sexual harassment in all types of workplaces (public and private).

The court's recent ruling in the Apparel Export Promotion Council case exemplifies this shift in policy, making it clear that "actual molestation or even physical contact" is not necessary to prove sexual harassment. Having said that, the court also reduced sexual harassment from a civil right to equality and dignity to a criminal offence against women for insulting their modesty.

VISHAKA VS STATE OF RAJASTHAN

Case Citation

(1997) 6 SCC 241

Petitioner(s)

Vishaka and Ors.

Respondent(s)

The State of Rajasthan and Ors.

Bench

Chief Justice J.S. Verma, Justice Sujata V. Manohar and Justice B.N. Kirpal.

Date of the Judgment

August 13, 1997

FACTS OF THE CASE

This case dealt with the problem of sexual harassment of women in the workplace, was a watershed moment for working women's rights. In this instance, social worker Bhanwari Devi was the victim of a heinous and cruel gang rape, which led to the filing of the PIL. On one specific day, Bhanwari Devi was helping a family to prevent the marriage of a little girl as she worked closely with them to end the practice of child marriage in her village.

This led to her being viciously raped in front of her husband by five men from the upper class. The police ignored Bhanwari Devi and her husband's pleas for assistance and, under political pressure, declined to register a FIR and conduct a full investigation.

This wasn't the only problem she had while trying to achieve justice; the doctors who treated her at the hospital also refused to write "rape" in her medical report, instead writing simply her age.

In spite of everything that had happened, Bhanwari Devi and her husband persisted and eventually made it to the Rajasthan trial court. The trial court found all five men not guilty because there was insufficient evidence to support the prosecution's case and because it was difficult for the jury to accept the victim's testimony that her husband was confined during the assault and did nothing to intervene.

A number of non-governmental organizations (NGOs), including Vishaka, took their grievances with the court's ruling to the Supreme Court in a PIL  under Article 32.

ISSUES RAISED

· Whether Bhanwari Devi's fundamental rights protected by articles 14, 15, 19(1) (g), and 21 of the Constitution of India were violated by the trial court's decision in her case.

· The other matter that needed to be decided by the highest court was over equal rights for women and the prevalence of sexual harassment in the workplace.

· What responsibilities or roles the employer should play when dealing with allegations of sexual harassment.

JUDGMENT

A three-judge panel presided over by Justice J.S. Verma deliberated on the Bhanwari Devi case, which involved allegations of sexual harassment at work. The court determined that the term "Gender Equality" is under the purview of articles 14, 19, and 21, even if no specific provision or article defines it. Under the Indian Constitution, women have the right to practice whatever profession they choose, engage in any occupation, trade, or business, and work in an atmosphere free from discrimination if these basic rights are violated. According to the court, the right to live in dignity is a part of the right to life as guaranteed by article 21.

The highest court in the land concurred with the petitioner that establishing standards and regulations was the best way to reduce incidents of violence against women on the job. The court ordered the Indian and Rajasthan governments to enforce the rules with the utmost rigor in all workplaces. Legislation addressing 'Gender Equality' and crimes committed against women in the workplace was nonexistent in India in 1997. In the lack of specific legislation, the Indian Supreme Court exercised its authority under articles 14111 and 32 of the Constitution to rule that the established standards and guidelines should be deemed laws for the purpose.

The court reasoned that it could meet its international and domestic responsibilities to Indian people by establishing these standards and guidelines. The Beijing Statement of the Principles of the Independence of the Judiciary in the LAWASIA region, to which India is a party, stipulates that all courts within India's territory are bound to uphold legislation issued by the Supreme Court. These declarations encourage adherence to treaty duties and international law in the interactions of organized peoples.

Last but not least, Bhanwari Devi's story shows how critical it is to solve the gender gap in the workplace.

CRITICAL ANALYSIS OF THE CASE

Societal patriarchy led to Bhanwari Devi experiencing sexual harassment and discrimination on the job in 1997. No laws were in place to shield women from sexism and other forms of discrimination. Thus, a large number of women opted out of the workforce. "Vishaka v. State of Rajasthan & Ors" was a landmark case that led to the creation of the "Vishaka Guidelines"—a set of rules meant to prevent workplace violence against women.

Employers were urged to take the necessary steps to create a workplace that is welcoming to women, as outlined in the recommendations. An anti-violence committее, with a woman at the helm and an NGO consultant, should be established in very jurisdiction to address crimes perpetrated against women. After this committее has investigated a sexual harassment complaint thoroughly, the employer can take the necessary steps to address the issue.

Sexual harassment encompasses a wide range of unwanted behaviors, including physical contact, advances, requests for sexual favors, pornography, and sexually suggestive comments or images. To guardant their compatibility with domestic law, these rules were meticulously crafted while consulting a number of international treaties and statutes.

These recommendations are in kееping with the Protection of Human Rights Act of 1993, as the landmark case of “Vishaka” infringed upon women’s fundamental human rights. This rules are an attempt to make the workplace a better place for everyone by eliminating discrimination based on gender and sexual orientation.

JURISPUDENTIAL ASPECT OF VISHAKA CASE

With thе goal of prеvеnting and addrеssing allеgations of sеxual harassmеnt in thе workplacе, thе Sеxual Harassmеnt of Womеn at Workplacе (Prеvеntion, Prohibition and Rеdrеssal) Act, 2013 was passеd. It was draftеd in rеsponsе to Justicе Vеrma's dirеctivеs and with thе aim of safеguarding womеn's inhеrеnt rights to еquality, lifе, and thе right to еngagе in occupational activitiеs. Economic еmpowеrmеnt and inclusivе growth arе thе dеsirеd outcomеs of thе act, which sееks to incrеasе womеn's involvеmеnt in gеnеral advancеmеnt.

Whilе thе tеrm "sеxual Harassmеnt" is dеrivеd from thе ruling in thе Vishaka casе, thе statutе itsеlf makеs no mеntion of thе casе.

The new law, according to some experts, is inadequate. Within three months after the occurrence, or longer if justified, written complaints must be submitted. Within ninety days, an investigation must be initiated by the ICC or the LCC, whichever is applicable. A report is sent to the employer and disciplinary action must be implemented within sixty days if the respondent is found guilty of the charges.

Activists and groups representing women contend that the 2013 Act's characterization of sexual harassment, along with the internal committee system established by the Vishaka guidelines, expedites the process by which victims can seek remedy. In keeping with this broader plan for deregulation, the investigation and resolution of sexual harassment cases should be left to private or intra-institutional actors.

Conciliation between the aggrieved party and the defendant is authorized under Section 10 of the Sexual Harassment Act. The fact that the employer has the authority to choose ICC members raises concerns about the procedure's openness and equity, which could lead to problems. Further complicating matters for employers who feel wronged by a conciliation settlement decision is the fact that it cannot be appealed.

SEXUAL HARRASMENT IN ISRAEL

The Prevention of Sexual Harassment Law, passed in 1998, is the primary statute upon which Israel's sexual harassment laws are founded. The ban of sexual harassment in Israeli law did not begin with this law. The criminal code, state employee disciplinary policies, and employment laws all had some say in the matter of sexual harassment until 1998. It was the applicable employment statute; it had a very limited definition of sexual harassment and applied it exclusively to interactions between employers and employees. Sexual harassment of an applicant for employment was added to this clause in 1995 by an amendment passed by the legislature.

Cases of more serious harassment were addressed by various sections of the Penal Law. These included physical sexual advances, like an unwanted kiss, and "forbidden intercourse by consent," which occurred when someone was "exploiting... authority in employment or service." These prohibitions were restricted to criminal enforcement and could only be invoked in more severe instances of harassment.

The authority to initiate disciplinary actions against state employees who "conduct himself in a manner unbecoming his office as a State employee" was another component of the sexual harassment issue . The victim did not have the authority to initiate such procedures; it was granted solely to the state. Just a few years prior to the new law's passage, in 1998, the possibilities inherent in this disciplinary standard began to manifest.

The purpose of the Israeli law is "to prohibit sexual harassment in order to protect human dignity, liberty, and privacy, and to promote equality between the sexes." Each of the eight women who were members of the Israeli parliament at the time—the Knesset—symbolically initiated the bill. A prime example of the process of legal system cross-fertilization, the law was influenced by the precedents set by other nations.

Sexual harassment is defined in a wide variety of ways in the law, but some examples include making sexual advances or references to someone repeatedly even though they clearly aren't interested, bosses not allowed to make such comments to subordinates, and derogatory comments directed at someone because of their sexual orientation or gender. People can register complaints through one of three alternative enforcement avenues provided by the law: criminal, civil, or labor courts.

Employers are legally obligated to take certain steps to avoid sexual harassment in the workplace; failing to do so may result in legal action against the business. Employers are obligated by law to take reasonable measures to avoid sexual harassment in the workplace. They must designate one employee to handle complaints of sexual harassment, conduct investigations, and write up the findings. Additionally, any workplace with 25 or more employees is required to post "sample rules" that outline the rules against sexual harassment and how to report it if it happens.

THE REFORMS TO SEXUAL HARASSMENT LAWS AND THEIR ENFORCEMENT

INDIA

In its Vishaka decision, India's highest court addressed the issue and issued recommendations to businesses and other organizations on how to address the problem. In order to investigate and address complaints, employers were compelled to establish complaints committees. Nevertheless, the guidelines are still in the planning stages and have not yet been applied uniformly across the country. PIL was created in the name of Medha Kotwal Lele and Ors. v. Union of India after numerous women's organizations sent letters of protest to the Chief Justice of India, challenging the dismissal of a complaint.

In its first move to oversee the Vishaka guidelines' implementation, the Supreme Court sent letters to the federal government, each state government, and the union territories, demanding reports on how well they were following the rules. As a result of this petition, both the federal and state governments revised their service regulations to explicitly name sexual harassment as an offense. Many government agencies have established Complaints Committees, and all institutions were asked to do the same  in a letter they sent out.

Workplace transformation remains sluggish notwithstanding these measures. The majority of companies still have not formed Complaints Committees, and even those that have are often ineffective. Organizations' inaction in addressing sexual harassment as a policy issue and incorporating it into service regulations, as well as pervasive patriarchal views, are to blame for the absence of Complaints Committees.

D.S. Grewal v. Vimmi Joshi and Anr., a recent Supreme Court decision, illustrates the low degree of compliance with the standards. An army commander was fired when a teacher complained about receiving sexually explicit letters and advances from him. A case of sexual harassment was established, leading the High Court to rule that the termination was invalid. The Supreme Court upheld the Vishaka definition and the illegality of the termination when the case reached that level on appeal.

The Indian Supreme Court determined that the disciplined Indian Army was in violation of its own rules by not having a system in place for reporting sexual harassment. A three-person committee, including a female chairperson appointed by the High Court, was directed by the court to examine these allegations. The Army Authorities may initiate disciplinary action against the appellants if it is determined that the petitioner was the victim of sexual harassment. It was mandated that the Army Authorities should pay for all of this.

There have been other high-profile instances where top female government officers, particularly in the military and services, have accused their male superiors of sexual harassment. A prominent example is the case of Nisha Bhatia, a senior official at India's leading intelligence agency, who claimed that her superiors had harassed and threatened her sexually. In accordance with the Vishaka standards, no Complaints Committee was established to examine her harassment claims. Anjali Gupta's case is significant as well; she was a Flying Officer in the Indian Air Force who faced charges of financial theft, insubordination, and indiscipline after reporting sexual harassment by higher officials.

As part of the court martial processes, Anjali Gupta was discharged from service. A Complaints Committee was appointed to investigate her claims of harassment, although it only convened for the inquiry one day later. The Committee rejected her complaint after she still refused to come before them. Anjali Gupta's case will establish significant procedural and legal precedents for women in the forces, and the Air Force will be the first of India's defense services to welcome women outside of the medical corps.

There may be Complaints Committees in place, but they frequently misunderstand the gravity of the harassment, fail to address the issue adequately, or operate under sexist assumptions. As a result, the Vishaka rules are not being effectively enforced or implemented on a ground level, despite the fact that the Supreme Court and the High Courts have recently shown their commitment to preventing sexual harassment at work in the Vimmi Joshi case.

Several rulings and rules have dealt with the POSH Act, 2013. As the first definitive ruling on sexual harassment in India, Vishaka case was a watershed moment in judicial activism since it recognised and depended on international treaties. Even in the absence of any such law, the court came up with novel proposals for judicial legislation.

ISRAEL

Compared to India, Israel's sexual harassment laws have been more stringent and have taken a more comprehensive approach to handling incidents through criminal prosecution, lawsuits involving employment law, and disciplinary procedures. The regulations for enforcement are thorough and adhere to the law, safeguarding victims' identity. This reward system empowers women to stand up for what they believe in.

Anothеr crucial aspеct is thе statе prosеcution’s dеtеrmination to procееd with chargеs against high-ranking officials. Hеrе, thе outcomе was dеtеrminеd by thе trial of Haim Ramon, who facеd chargеs for thе unwеlcomе kissing of a young cop. Ramon served a sentence of hard labour after being found guilty and damagеs by thе court, which cеntеrеd on thе topic of thе officеr’s pеrmission or lack thеrеof.

An important turning point in Israеli history camе with thе Katzav controvеrsy, which involvеd Moshе Katzav, an Israеli public figurе for quitе somе timе. Multiplе allеgations of sеxual misconduct against fеmalе еmployееs wеrе lodgеd against him throughout his tеnurе. Sеvеrе criminal chargеs of rapе and sеxual harassmеnt rеsultеd from an invеstigation launchеd by thе Attornеy Gеnеral on him. In thе еnd, Katzav was found guilty of two rapеs, sеxual harassmеnt, , dеspitе his claims of innocеncе and his rеvocation of thе plеa dеal bеtwееn thе Attornеy Gеnеral and his lawyеrs.

Finally, thе public and judicial sеctors in Israеl havе rеcognizеd thе significancе of womеn’s rights and thе nеcеssity for strongеr еnforcеmеnt mеchanisms in rеlation to sеxual harassmеnt, which has lеd to thе passagе of a lеgislation that formally addrеssеs thе problеm.

CONCLUSION

Thе incorporation of concеpts from diffеrеnt lеgal systеms, known as "lеgal transplantation," has playеd a crucial rolе in thе prosperity of the laws. Worldwide adoption of sexual harassment laws with its roots in the United States exemplifies the prevailing paradigm of "Americanization." Like Israel, India has a history of British colonization and both countries combine modernity with tradition. Israel enacted sweeping anti-harassment laws in 1998, whereas India's sexual harassment rules are based on a landmark decision from the country's highest court from 1997. Gender stereotypes and assumptions regarding male advantages were the targets of these changes. In 1997, sexual harassment laws were passed in India after the Vishaka ruling recognized the violation of women's fundamental rights to dignity and equality.

Social worker Bhanwari Devi was one of the victims in the case of "Vishaka v. State of Rajasthan & Ors." Five affluent men raped her in front of her husband. Inadequate evidence and the victim's statement that her husband was restrained during the assault led the trial court to find all the defendants not guilty. PIL was filed with the Supreme Court by NGOs, including Vishaka. The court had previously ruled that articles 14, 19, and 21 cover "Gender Equality" and had directed the governments of Rajasthan and India to implement these regulations. The "Vishaka Guidelines," established in response to this case, seek to eliminate gender inequality in the workplace and end violence against women there.

Israeli lawmakers sought to combat and prevent workplace sexual harassment by passing the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Derived from the Vishaka case, the legislation mandates that written complaints must be submitted within three months, that the ICC or the LCC must conduct investigations, and that disciplinary punishment, upon conviction, must be implemented within sixty days. But campaigners say victims get a faster resolution because of the Act's internal committee mechanism and how sexual harassment is defined. The main statute that establishes sexual harassment rules in Israel is the Prevention of Sexual Harassment Law, which was passed in 1998. To comply with sexual harassment prevention laws, businesses must appoint a point person to receive and process complaints, launch investigations, and publish model policies.

The Vishaka ruling, which dealt with sexual harassment in the workplace, mandated that businesses form complaints committees. Workplace reform is still progressing at a snail's pace because of resistance, patriarchal attitudes, and noncompliance. Despite several high-profile incidents, no Complaints Committees have been formed to look into allegations of harassment. Judgmental activism reached a turning point with the passage of the POSH Act, 2013, which acknowledged and relied on multinational accords. There is a reward system in place for women who report sexual harassment in Israel, and the rules against it are more severe and all-encompassing. Israel's legislative and executive branches have passed laws legally addressing the issue of sexual harassment because they value women's rights and see the need for stronger enforcement measures in this area.