Introduction
What happened in Manipur with the young lady is a product of imbalance and abuse of power in a society and on government’s inaction what CJI J. Chandrachud has commented which is worth it as courts are a part and parcel of the whole system of our democracy and one of the key elements of the system which has the power to have a check and balance on each and every part of the functioning of the State. He has said about Suo Moto which means any High Court or Supreme Court takes control over any case on its own and the rationale behind it is simply the delivery of justice to all whether one can afford it or not.
This incident reminds me of one of the landmark case in our legal history where in the absence of any law and in order to deliver justice Supreme court has given guidelines called Vishaka Guidelines regarding sexual harassment at workplace. Which will be in effect until any law by Parliament and post these guidelines it takes 16 years for the Parliament to Sexual Harassment at Workplace (Prevention, Prohibition, and Redressal) Act 2013. This is the exercise of power of the Supreme Court to deliver justice under Article 141 of Indian Constitution. This shows that where there is a deadlock in Parliament and in need to deliver complete justice, the Supreme Court of India can formulate guidelines and rules. When we have this much efficient Parliament the intervention of the judiciary becomes an important aspect of our nation’s well being for me.
Now the rest of this will deal with incidents of the case involved in Vishaka guidelines and various aspects to it. We have a recent in 2021 from International Institute for Population Sciences and Family Health Survey (NFHS-5 2019-21) reported that women outnumbered number of men in India, where it is clear that we are in a country of a perfect equal population demographic distribution not perfectly equal even women are more , but when we come to the question of the financial status and financial empowerment of women we are at the worst condition except Arab World as far as these factors are considered. Financial well being of a country can’t be improved by ignoring the
Sexual Harassment is an endemic to work places , not only this , they disheartened courage of women who are working but result in lacking of participation of women constituting half of our country not only in numbers but also in talent so as a result it can be derived from that only that we are ignoring at least fifty percent of our population’s talent.
Apart from various social and cultural impacts it certainly has serious financial impacts too.
Hostile Work Environment, Erosion of Trust among employees, Rise in employee turnout, Reduced Productivity, Impact on Mental Health, are some of the major negative impacts of that.
Its impact on society, work force , personal and the family as well as the economy of both the individual impacted by that and the Company where that happened. Be it absenteeism and less productive individual or administrative cost for ICC(Internal Complaint Committee to be established by the company in accordance with the guidelines of court and further by the act of parliament). It has some of the indirect costs involved in it be it the tarnishing of reputation of the company or difficulty in attracting new set of employees in the form of fresh talent, even sometimes when public come to know any new of sexual harassment in any company out of reaction they start boycotting the goods and services of that particular company. Although all these impacts are subsidiary the main gist to be highlighted is how parliament ignores some of the issues.
It is the result of elements of hostility, aggression, abuse of power in a power imbalanced society along with a toxic mix of power and patriarchy.
Bhanwari Devi and the Vishaka Guidelines
Although the act to replace Vishaka guidelines by the Supreme court of India is known as Sexual Harassment at workplace (Prevention, Prohibition and Redressal)Act 2013 indicates that the battle was of some corporate powerhouse in any metro city but contrary to that first mover was a humble social worker in the State of Rajasthan, faced with the issue of child marriages to tackle that government of Rajasthan has decided to hire female social workers to try to convince the families to refrain from this practice.
Bhanwari Devi, a potter from the village of Bhaterin in Rajasthan enrolled as a volunteer in the programme.
In the course of her employment she noticed that some families are involved in organizing the wedding of a nine month old infant. She has tried but to no avail the marriage even happened to a group of people livid with the view that Bhanwari devi has dared to interfere. So as a revenge firstly the panchayat has directed economic boycott of her. Not only this but one morning in September 1992, Bhanwari Devi and her husband were out in field, five men raped her in presence of her husband.
Then started the typical fuss of police inaction and the whole government machinery as a result she has been medically examined after some fifty hours of the incident.
As reported by Geeta Pandey a BBC News correspondent on 17th March 2017 court held that as the men are of upper caste men, the rape could not have taken place. The judge apparently gave other baffling reason for the decision in favour of accused that men above sixty could not rape, and men of different castes could not indulge in the crime of rape together. This kind of judgment by a lower court is really shameful.
Every instance of harassment violates the right to life and liberty granted under Article 21 of Constitution of India. Not only Article 21 but Article 14 and 19 are violated because of that harassment so to get remedy under Article 32 it has been challenged. The effect of harassment has a direct impact on the women’s ability to perform her work in a very effective way.
On 25th June 1993, India was a signatory of Convention on the Elimination of all Forms of Discrimination Against Women. The convention includes some resolution which says ‘Sexual harassment includes such unwelcome sexually determined behaviours as physical contacts and advances, sexually coloured remarks, showing pornography, sexual demands weather by words or by actions and such conduct can be humiliating and may constitute a health and safety problem.’ This wording of the convention is used by the court in order to deliver complete justice.
The right to work in a job of one's choice and the State's duty to protect it are recognized in Articles 23 and 6 of the Universal Declaration of Human Rights and the International Covenant on Economic, Social, and Cultural Rights, both of which India acceded to.
All because of the Supreme Court's expansive reading of Article 21 in the case of Olga Tellis v. Bombay Municipal Corporation & Others 1986. The 'right to life' and the 'right to work' were both established as Fundamental Rights under Article 21.
In the view of the above convention of which India is a part and the previous judgment, the court came to the conclusion that there is no such remedy available to the citizens to enforce that right. But one of the famous Latin legal maxim- ubi jus ibi remedium means where there is a right, there is a remedy. In light of that even the parties representing the NGO have exposed the center's concern in that matter.
After all that argument, the court has passed an order to formulate a law in parliament which takes 16 years to do so and in the judgment they have given full fledged guidelines to be followed in case of such incidents until there is an Act of parliament.
Gist of guidelines
Conclusion
The right conferred by the Supreme Court in order to deliver complete justice under Article141 of IC in this case gives a complete hint that the statement by CJI regarding Suo moto is how powerful to establish accountability of Government.
This also gives us a crystal clear idea of how effective Parliament works and is working on various issued which are under concern right now.
This gives us an idea of how much judges out of the collegium system are independent to take decisions. If selected by government then it may be not as we can see today.
Although the details and provisions of acts are subject to other blog.
