CENTRAL UNIVERSITY OF SOUTH

BIHAR
GAYA

SCHOOL OF LAW & GOVERNANCE

Assignment
Human Rights Law and Practice
TOPIC: CASE STUDY ON VISHAKA AND ORS. V.
STATE OF RAJASTHAN

Submitted to: Submitted By- Anand Shukla

Mrs. Poonam Kumari Course: B.A. LL.B(Hons)
Enrollment no.:CUSB1512135010
 ACKNOWLEDGEMENT

It gives me immense pleasure to express my gratitude to all who supported and helped me in

completing this project. I extend my heartfelt gratitude to Mrs. Poonam Kumari for being the

guiding light and a source of inspiration throughout the course of this project. I also thank her for

allowing me to work on such an insightful case.

I would also like to thank all the library and support staff for helping me in procuring the

materials required to complete this project. Lastly I would like to thank the almighty under

whose benevolent presence this project could be completed.

ANAND SHUKLA

2
VISHAKA AND ORS. V. STATE OF
RAJASTHAN

Equivalent Citation - (1997) 6 SCC 241

Petitioner: Vishaka & Ors.

Respondent: State of Rajasthan & Ors.

Date of Judgment: 13/08/1997

Bench: J.S. Verma C.J., Sujata V. Manohar & B.N. Kirpal JJ.

Court : Supreme Court of India

Cases Referred:
1. Nilabati Behra v. State of Orissa

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 TABLE OF CONTENTS

SYNOPSIS......................................................................................................................................5

INTRODUCTION...........................................................................................................................6

IMPORTANCE OF THE CASE FOR LEGAL EDUCATION......................................................8

FACTS OF THE CASE...................................................................................................................9

LEGAL ISSUES INVOLVED......................................................................................................10

CONTENTIONS OF THE PARTIES...........................................................................................11

DECISION OF THE COURT.......................................................................................................12

MAIN REASONS FOR REACHING THE DECISION...............................................................15

CONCLUSION..............................................................................................................................17

BIBLIOGRAPHY………………………………..………………………………………………18

4
 SYNOPSIS
The case of Vishaka v State of Rajasthan is a landmark judgement in the sense that it paved the

way for Sexual Harassment guidelines and accepted International Conventions and norms in the

absence of a specific legislation. The case analysis vividly brings out the essence of this case. To

provide a clear picture of the case, the case has been divided into six main heads.

The aforesaid topics include: 1. “Importance of the case for Legal Education” which throws light

on the relevance of this case, 2. “Facts of the case” which briefly summarizes the pertinent facts

of the case, 3. “Contentions of the parties”, 4. “Legal Issues involved”, 5. “Judgement of the

Court” and lastly “The main reasons which led to this judgement”. The split of topics has been

done wisely and with utmost precision to bring out the intricacies involved in this case.

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 INTRODUCTION

Vishaka & ors. v/s state of Rajasthan 1is a case which deals with the evil of Sexual Harassment

of a women at her workplace. It is a landmark judgment case in the history of sexual harassment

which as being decided by Supreme Court. Sexual Harassment means an uninvited/unwelcome

sexual favor or sexual gestures from one gender towards the other gender. It makes the person

feel humiliated, offended and insulted to whom it is been done. 2 In many of the cases, it has been

observed that homosexual labor harass an employee belonging to the same sex to which he

belongs.

Sexual harassment is also termed as “Eve Teasing” in India, and it can be determined from the

following acts like- passing of indicative or typical comments or jokes, uninvited touching,

making appeals for sex, sexually blunt pictures or text messages or emails, discredit person

because of sex3. Accordingly, Sexual Harassment violates the fundamental right of the women of

gender equality which is codified under Article 14 of Indian Constitution and also the

fundamental right to life and to live a dignified life is violated /infringed under Article 21 of

constitution of India. Even though there has been no provision for sexual harassment at

workplace under Indian Constitution.

Sexual harassment is one of the social evil faced by the fragile portion of the society. Now at this

point of time the high society people or the people who commits sexual harassment should

become aware about the vital needs or rights of women or either when this tranquil volcano of

1
AIR 1997 SC 3011
2
Crouch, M. A. Thinking about Sexual Harassment: A Guide for the Perplexed. New York: Oxford University
Press, 2001.
3
MacKinnon, C. A. Sexual Harassment of Working Women: A Case of Sex Discrimination. New Haven,CT:Yale
University Press, 1979.

6
anger will erupt will cause immense danger and shattering which would have equal

consequences which is cause from the burst or eruption of an inactive volcano.4

The Supreme Court in the case of Vishaka v. the State of Rajasthan laid down for the first time

strictures that aimed at protecting a woman employee by giving her right to a safe/healthy

working environment. In the decision, the Court also defined sexual harassment and recognized

it to be a paramount violation of human rights. The court thereby laid down certain mandatory

and binding guidelines to be followed by all workplaces, belonging to the public and private

sectors and made it imperative for every employer to ensure a safe, harassment free working

environment for the women. These strictures can be applied to educational institutions as well.

These strictures were based on conventions of which our country is a signatory and human right

which are inalienable for any human being.5

Importance of the Case for Legal Education

4
Pina, A., T. A. Gannon, and B. Saunders. “An overview of the literature on sexual harassment: Perpetrator, theory,
and treatment issues.” Aggression and Violent Behavior 14:2 (2009): 126–138.
5
www.wikipedia.com/HR_act.

7
If we go by the definition of legal education “Legal education is a human science which

furnishes beyond techniques, skills and competences the basic philosophies, ideologies, critiques,

and instrumentalities all addressed to the creation and maintenance of a just society”. A just

society in a layman’s language would be the society in which everyone is treated in a fair manner

and no discrimination is done on the basis of religion, race, caste, sex, place of birth, economic

standard etc.6

Law schools’ function is not only to manufacture every year thousands of legal brains which will

be used to make money either for themselves or for the firms whom they would be working with

but to help a great extent in creation of just society. Law students in future will turn into lawyers

those who will educate the masses about what is wrong, what is right, what are their duties, what

is state’s duties, what constitutes crime and enlighten their minds in toto.7

In this case for the first time a comprehensive definition was given as to what constitutes sexual

harassment at workplace and certain guidelines were issued for the rights of working women at

workplace and same can be claimed. If we don’t include this case in legal education, there will

be an ambiguity as to what kind of acts constitute sexual harassment at workplace and what are

the rights of working women at workplace. In a country like India some women are subjected to

sexual harassment but they also don’t know that they are victims of the same as illiteracy

remains a major problem, women are still not aware of their rights and are not treated at par with

man and unless they don’t know their rights it is and will be a very grim situation for them. Law

students can help in creating awareness about the same by enlightening the minds of woman

around them and can help in creation as well as maintenance of a just society

6
www.shoneekapoor.com
7
http:/legaldesire.in

8
 Facts of the case

Bhanwari Devi was a social worker (Saathin) at rural level in a development programme initiated

by State Government of Rajasthan, aiming to curb the evil of child marriages in villages. As part

of her work, Bhanwari Devi, tried to stop Ramkaran Gujjar’s infant daughter’s marriage.

Nevertheless, marriage took place but Bhanwari Devi was not forgiven for her efforts to stop

marriage. She was subjected to social boycott, and in September 1992 was gang raped by five

men including Ramkaran Gujjar in front of her husband. The only male doctor in the Primary

Health Centre refused to examine Bhanwari and the doctor at Jaipur only confirmed her age

without making any reference to rape in his medical report. At the police station too, the women

constables taunted her throughout the night. It was past midnight when the policemen asked

Bhanwari to leave her lehenga behind as evidence and return to her village. She was left with

only her husband’s bloodstained dhoti to wear. Their pleas to let them sleep in the police station

at night, were turned down.8

The trial court acquitted the accused, but Bhanwari was determined to fight further and get

justice. She said that she had nothing to be ashamed of and that the men should be ashamed due

to what they had done. Her fighting spirit inspired fellow saathins and women’s groups

countrywide. In the months that followed they launched a concerted campaign for justice for

Bhanwari. On December 1993, the High Court said, “It is a case of gang-rape which was

committed out of vengeance”. This provoked women’s groups and NGOs to file a petition in the

Supreme Court of India. As part of this campaign, the groups had filed a petition in the Supreme

Court of India, under the name ‘Vishaka’, asking the court to give certain directions regarding

8
http://indiankanoon.org/

9
the sexual harassment that women face at the workplace. The result is the Supreme Court

judgement, which came on 13th August 1997, and gave the Vishaka guidelines.9

LEGAL ISSUES INVOLVED

The case involved multiple legal issues. In the absence of a detailed law regarding Sexual

Harassment of Women at Workplace, a lot of emphasis and deliberation was assigned to the

legal issues involved on this case. Those legal issues are as follows:

1. What were the existing laws that spoke about the status of women at the workplace?

2. Is a special enactment really needed to prevent Sexual Harassment of Women at the

Workplace?

3. Can International Conventions and norms be used to provide justice in the absence of a

specific legislation in a particular area of law?

There was no particular law made in this regard ever before. Although the Government had

entered into certain treaties and conventions which called for making such a law, but the

requirement had never been fulfilled. A special enactment was definitely required to do away

with the increasing rates of crimes against women at the workplace. The afore-mentioned legal

issues were addressed by the court in the most elaborate and clear manner. It relied on

International agreements and made provisions after considering them.

9
http:/casemine.org/

10
 Contentions of the Parties

A writ petition under Article 32 of the Indian Constitution was filed before the Supreme Court.

The major contentious issues between the parties included the following:

1. Whether Sexual Harassment is a violation of Fundamental Rights of Article 14, 15,

19(1) (g), Article 21 of the Constitution?

2. To provide safeguards against the hazards to which a working women may be

exposed to.

3. Whether International Conventions and norms could be applied to fulfill this urgent

social need in the absence of any appropriate legislation?

The case was filed by a Women’s Action Group under the name of “Vishaka”. They wanted

enactment of a specific law with regards to Sexual Harassment of women at workplace. The

Supreme Court accepted the petition and under the able advice of the counsel Mr. Soli Sorabjee

formulated the Vishaka Guidelines. There was no contention on the part of Supreme Court as it

was clear case of a void in legislations. The group specifically wanted the court to frame

guidelines related to Sexual Harassment of Women at workplace. The aim of the Supreme Court

was to find a suitable method for realization of the true concept of “gender equality”, and to

prevent sexual harassment of working women at all workplaces through judicial legislation, and

lastly to fill in the vacuum in the existing legislation.10

10
http:/legaldesire.in

11
 DECISION OF THE COURT

The court held that there was a clear violation of Articles 14, 15, 19(1) (g) and 21. It also focused

on issues regarding gender equality, asserting that gender equality includes protection from

sexual harassment and the right to work with dignity. In the absence of specific legislations in

this regard, international conventions and norms have to be considered. Those international

conventions not inconsistent with Fundamental Rights and in harmony with its spirit must be

read into these provisions to enlarge the meaning and content thereof. It was decided by the court

that the obligation of Supreme Court under Article 32 for the enforcement of Fundamental

Rights in the absence of legislation must be viewed along with the role of judiciary envisaged in

Beijing Statement of Principles of the Independence of Judiciary in LAWASIA Region.

The court laid down the following guideline termed under the name of Vishaka Guidelines:11

1. Duty of employer and other responsible persons in workplaces and other

institutions: People at the workplaces have a duty to be discharged towards their

counterparts and fellow workers. They must prevent or deter the acts of sexual

harassment and provide the procedure for resolution, settlement or prosecution of the acts

of sexual harassment by taking all the steps required.

2. Definition: Sexual Harassment includes

 Physical contact and advances.

 A demand or request for sexual favors

 Sexually colored remarks.

11
http://indiankanoon.org/

12
  Showing pornography.

 Any other unbecoming physical, verbal or non-verbal conduct of sexual nature.

3. Preventive Steps:

 Express prohibition of sexual harassment through notification, publication and

circulation in appropriate ways.

 Rules/regulations of government and public sector should include

rules/regulations prohibiting sexual harassment and provide for appropriate

penalties.

 The employers must include aforesaid rules in Industrial Employment (Standing

Orders) Act, 1946.

 Appropriate conditions with respect to work, leisure and hygiene to further ensure

that there is no hostile environment.12

4. Criminal Proceedings- If the conduct to any offence under the IPC/any law, the

employer shall take appropriate action.

5. Disciplinary Action: Actions must be taken with respect to relevant service rules

followed by the employer.

6. Complaint Mechanism: It should determine whether the conduct is an offence or not.

Appropriate complaint mechanism should be present for time-bound redressal.

7. Complaints Committee: It shall be headed by a woman, and not less than half of the

others should be women. The third party must be familiar with the issue of sexual abuse.

There shall also be a special counsellor, and confidentiality must be maintained.

8. Worker’s Initiative: The workers must be allowed to raise issues of sexual harassment

in worker’s meetings and affirmatively discuss them in employer-employee meetings.

12
http:/casemine.org/

13
 9. Awareness of this right: The workers must be made aware of such rights. Guidelines

must be notified to the workers in case of any change in them.

10. Third Party Harassment: The employer and the person in charge should provide

support and preventive actions must be taken by them.

11. Central/State Government: They must make legislations with regard to sexual

harassment, so that the guidelines contained herein must be followed in private sector as

well.

12. The aforesaid guidelines will not prejudice any rights available under the Protection of

Human Rights Act, 1993.

The court ruled that these guidelines will remain in force unless a specific legislation is made.

They must be strictly observed at all workplaces.13

13
http://indiankanoon.org/

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 MAIN REASONS FOR REACHING THE DECISION

Prominent reasons for reaching the decision:

 Violation of Articles 14, 15, 19(1) (g), and 21 of the Constitution.

 Absence of an enacted law for Sexual Harassment of Women at workplaces.

 Due considerations to Article 42, 51A 51and 253 of the Constitution.

 Beijing Statement of Principles of the Independence of Judiciary in LAWASIA Region.

 CEDAW Regulations.

 4th World Conference on Women in Beijing.

The main reason of the Supreme Court in reaching the judgement or formulation of guidelines

was the absence of an enacted law to provide for the enforcement of basic human rights of

gender equality and guarantee against sexual harassment and abuse, more particularly against

sexual harassment at workplaces. The case was also a violation of Fundamental Rights (Articles

14, 15, 19, 21). The judges also considered other articles from the constitution of India. Article

42 of the constitution provides for just and humane conditions of work and maternity relief,

while Article 15 includes prohibition of discrimination on grounds of religion, race, caste, sex, or

place of birth. Judges also considered international treaties and conventions. The Articles in the

constitution which gave effect to such considerations are Article 253 and Article 51. Article 253

talks about legislations for giving effect to international agreements. The enabling power of

Parliament to make laws for implementing International Conventions and norms is by virtue of

Article 253 read with Entry 14 of the Union List.14

14
M.P. JAIN, INDIAN CONSTITTIONAL LAW, 1365 (7th ed. 2014).

15
A very pertinent reason in reaching the decision was the role of judiciary envisaged in Beijing

Statement of Principles of the Independence of Judiciary in LAWASIA Region. This statement

talked about the Objectives of Judiciary which the court wanted to hold high through its

judgement. Another prominent reason is the norms laid down in “Convention on the Elimination

of all forms of Discrimination against Women (CEDAW)”. This convention had been ratified by

the Government of India, except with some reservations. The main Articles of this conventions

relevant in the present case were Articles 11 and 24. It pointed out that equality in employment

can be seriously impaired when women are subjected to gender specific violence, such as sexual

harassment at workplaces. According to the Supreme Court: “It is now an accepted rule of

judicial Construction that regard must be given to international conventions and norms for

constructing domestic law when there is no inconsistency between them and there is void in the

domestic law.”15

The judgement given by the judge also discussed certain commitments by India in the 4 th World

Conference on Women in Beijing. India officially committed to formulate and operationalize a

national policy on women which will continuously guide and inform action at every level and

sector. The strategy adopted by the Supreme Court with a view to expand the ambit of Article

21, and to imply certain rights therefrom, has been to interpret Art. 21 along with international

charters on Human Rights.16 India is a signatory to International Covenant on Civil and Political

Rights, 1966 and Universal Declaration on Human Rights. Both these agreements have been

signed by India and they do not go in contrary to the Indian Municipal Law. This kind of judicial

approach has been seen in a number of cases.17

15
L.I.C. of India v Consumer Education and Research Centre, AIR 1995 SC 1811, 1818 : (1995) 5 SCC 482.
16
M.P. JAIN, INDIAN CONSTITTIONAL LAW, 1167 (7th ed. 2014).
17
D.K. Basu v State of West Bengal, AIR 1997 SC 610 : (1997) 1 SCC 416.

16
 CONCLUSION

The decision of the Supreme Court in this landmark case had a vast impact on the Indian

Judiciary and upcoming laws in this regard. Use of International Covenants strong-footed India

in the International arena. The guidelines provided a complete solution to the problem of Sexual

Harassment of women at the workplace. The definition laid out in the guidelines also made

women aware of their rights and under the discussed laws. In a huge country like India, Sexual

Harassment had been increasing at a rampant rate. Moreover, the victims of such abuse were not

even aware that they were being sexually harassed.

The judgement was comprehensive in nature, although it had certain loopholes which must have

been taken care of. The judgement did lay much emphasis on implementation of such guidelines

at the national level. A commission should have been formed to ensure proper implementation of

the guidelines. If at all a commission already existed, reference should have been specifically

made to it for supervision of such guidelines. The most pertinent factor in the judgement was

that it was gender neutral. It treated both the sexes impartially and fairly. However, the

subsequent acts related to this matter have not been successful in achieving gender neutrality.

The judgement not only provided justice to women but also upheld the sanctity of the

Fundamental Rights enshrined in the Indian Constitution.

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BIBLIOGRAPHY

A. Books

1. M.P. Jain, Indian Constitutional Law, 1365 (7th ed. 2014).

B. Articles

1. Crouch, M. A. Thinking about Sexual Harassment: A Guide for the Perplexed. New York:

Oxford University Press, 2001.

2. MacKinnon, C. A. Sexual Harassment of Working Women: A Case of Sex Discrimination.

New Haven,CT:Yale University Press, 1979.

3. Pina, A., T. A. Gannon, and B. Saunders. “An overview of the literature on sexual harassment:

Perpetrator, theory, and treatment issues.” Aggression and Violent Behavior 14:2 (2009): 126–

138

C. Websites

1. http://indiankanoon.org/

2. www.wikipedia.com/HR_act.

3. http:/casemine.org/

4. www.shoneekapoor.com

5. http:/legaldesire.in

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