Vishakha Vs. State of Rajasthan - Case Summary - Law Times Journal http://lawtimesjournal.

in/vishakha-vs-state-of-rajasthan/

Equivalent Citation - (1997) 6 SCC 241

Petitioner:
Vishaka & Ors.
Respondent:
State of Rajasthan & Ors.
Date of Judgement: 13/08/1997
Bench: J.S. Verma C.J., Sujata V. Manohar & B.N. Kirpal JJ.
Cases Referred:
1. Nilabati Behra v. State of Orrisa [1]

Facts:

Bhanwari Devi was a social worker in a programme initiated by the state government of
Rajasthan aiming to curb the evil of Child Marriage. Amidst, the protest to stop a child marriage
in one Ramakant Gujjar’s family Bhanwari Devi tried her best to stop that marriage. However,
the marriage was successful in its completion even though widespread protest. In 1992, to seek
vengeance upon her, Ramakant Gujjar along with his 5 men gang raped her in front of her
husband. The police department at first tried to dissuade them on filing the case on one pretext or
other but to her determination; she lodged a complaint against the accused. 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 husband’s
blood – stained dhoti. Adding to their misery, their request to spend the night in the police station
was also refused.

The trial court acquitted the accused but she didn’t lose hope and seeing her determination all
female social workers gave their support. They all filed a writ petition in Supreme Court of India
under the name ‘Vishakha’. The apex court was called upon to frame guidelines for preventing
Sexual Harassment at Workplace.

The hon’ble court did come up with such guidelines as Vishakha Guidelines which formed the
x

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It has been laid down in the judgment above-mentioned that it is the duty of the employer or
other responsible persons in work places or other institutions to

1. Prevent the happening of such event

2. To furnish the employees with effective mechanism for the process of resolving & trying of
such indecent acts of sexual harassment

3. For this purpose “Sexual harassment” means disagreeable sexually determined behavior
direct or indirect as:

physical contact and advances;

a demand or request for sexual favours;

sexually coloured remarks;

showing pornography;

any other unwelcome physical, verbal or non-verbal conduct of sexual nature

Judgment:

Gender Equality finds place in Fundamental Rights enshrined under Article 14, 19 & 21. Sexual
Harassment at Workplace is a clear violation of gender Equality which in turn violates these
integral rights of the female class. Such harassment also results in the freedom provided under
Article 19(1)(g). The protection of females has become a basic minimum in nation across the
globe. In the absence of domestic law to curb the evil, assistance could be rendered from
International Conventions and Statues to the extent that it does not contravenes with any
domestic law or the do not violates the spirit of Constitution. The Judiciary derived this authority
from Article 51(c) and 253 r/w Entry 14 of the Union List of Seventh schedule of the
Constitution. The court held that such violation therefore attracts the remedy u/a 32.

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The Indian Judiciary has time and again reiterated upon the fact that Right to life under Art. 21
also comprise Right to live with dignity. Such aforesaid dignity could and should be protected
with suitable guidelines. It is of utmost importance to frame some guidelines to fill the legislative
vacuum and curb the evil.

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.

The judiciary found the following as source of the guidelines which would act as law of the land:

Convention on the Elimination of all forms of Discrimination against Women (Article 11 &
24)

General recommendations of CEDAW in this context (Article 11,22,23,24)

At the 4th World Conference on Women in Beijing, Govt. of India made an official
commitment to set up a National Commission at every level and in every sector that will look
after Women’s Rights.

The Supreme Court inter alia, clearly mentioned that the guidelines were to be treated as law
declared u/a 141.

Vishakha Guidelines

1. Employer or other answerable persons are bound to preclude such incidents from happening.
In the event of happening of such incidents the organization must consist of mechanism to
provide conciliatory and prosecutionary facilities.

2. Definition – For this purpose “Sexual harassment” means disagreeable sexually determined
behavior direct or indirect as:

a) Physical contact and advances;

b) A demand or request for sexual favours;

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d) Showing pornography;

e) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature

3. Every employer other than providing services under (1) is under an obligation to

i. Expressly notify the prohibition of sexual harassment

ii. The rules/regulations of govt. & public – sector bodies must include rules/regulations
prohibiting sexual harassment.

iii. The Standing Orders of the private employer made under Industrial Employment
(Standing Orders) Act, 1946 should include such provisions to prohibit sexual harassment.

iv. The working conditions must be appropriate and not hostile to the woman employees of
the organization. Further, the female employees should feel a sense of equality in the
atmosphere.

4. 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.
Further, the employee must provide the victim all sort of protection while dealing with the
complaints.

5. Appropriate Disciplinary Action shall be taken in case there is a violation of service rules.

6. Irrespective of the fact that the particular act constitutes an offence under IPC or any other law,
the organization must have a redressal mechanism to deal with it.

7. The Complaint Committee must be headed by a woman and not less than half of the members
must be woman. For further assistance the committee shall also include NGO’s or someone
aware with such issues.

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8. An employee-employer meet shall be arranged where the workers shall be allowed to raise
issues of sexual harassment.

9. The employer shall take adequate steps in order to spread awareness about the social evil.

Critical Analysis

The court in Vishakha was called upon for the enforcement of the fundamental rights mentioned
under article 14, 19 & 21. The country had after 1991 seen rise in gender equality in terms of
employment. Since, 1991 more women were employed in establishments than pre 1991 period.
This rise also was a crucial factor in the rise of incidents of sexual harassment and related
offences. At that point of time there was no law to prevent & punish commission of such
offences therefore, majority of the incidents went unreported and hence unpunished. This was a
black stain on the Indian criminal justice system. Due to this absence of law, there were many
gross violations of rights & the victims had no remedy. The legislature was still silent on making
any law in such regard even after multiple incidents of similar nature where there was sexual
harassment. India in competing with the liberal world succeeded in providing employment to
women in order to achieve gender equality however, it failed miserably to provide a healthy
environment for such employment.

Therefore, in a class action, brought by various NGO’s and social workers, finally the apex court
brought this silence to an end. The court without hesitating in breaking its constitutional
boundaries (only to interpret law) formulated guidelines for the prevention of such incidents.
These guidelines are known as Vishakha guidelines. This was a welcome step by the SC where it
finally provided the victims of such incidents a law through which they can seek remedy.

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. The court therefore felt the need
to find an alternative mechanism to deal with such incidents. These guidelines had the effect of
protecting female liberty in the employment establishment so that they could feel an atmosphere
of equality. The court ruled that violation of gender equality is violation of Right to life & liberty
mentioned under Article 21. Along with the violation of Art. 21, the court also found gross
violation of Article 14 & 15.

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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.

Therefore, the court after a deep interpretation of:

Convention on the Elimination of all forms of Discrimination against Women (Article 11 &
24)

General recommendations of CEDAW in this context (Article 11, 22, 23, 24)

At the 4th World Conference on Women in Beijing, Govt. of India made an official
commitment to set up a National Commission at every level and in every sector that will look
after Women’s Rights.

came up with Vishakha guidelines to prevent the taboo that was in the past without any remedy.

The court ruled that Gender equality & right to work with dignity is injured whenever there is a
any incident of Sexual Harassment. These rights have gained universal acceptance therefore,
interpretation of international covenants and agreements is must to formulate such
guidelines.

Conclusion

Vishakha judgment is one of the most gifted pieces of law the court has ever enacted in its
history since its inception. The court seeing the importance of the matter, came directly into the
ground by breaking all the restrictions upon it by the constitution and laid down such guidelines
which would ensure that no such act of harassment goes unpunished.

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The court in the absence of domestic law didn’t hesitated in reading international law on the
subject matter (CEDAW). The SC found authority for such reference in combined reading of art.
253 read with entry 14 of Union List in Seventh Schedule.

The Vishakha judgment along with its importance also contains the rationality in the sense that it
does not over-pressurize the employer in constructing redressal mechanism. The judgment has
only directed what seems appropriate for employer in order to maintain the constitutional
principles of equality and liberty. The judgment can never be termed as one where judiciary
encroaches its boundaries irrationallyi.e. Judicial Overreach instead it is the best example of
judicial activism.

Edited by Chiranjeeb Prateek Mohanty

[References]

[1](1993) 2 SCC 746.

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Hello Readers, I am Hemant Varshney student of B.A.LLB.(Hons.) at Dr. Ram Manohar

Lohia National Law University, Lucknow (Uttar Pradesh). Since the beginning of my life as
a law student I had a great liking in the Constitutional Laws of various nations. However,
apart from Constitutional Law I am also interested in Criminal laws, Human Rights Law
and Arbitration laws. I also have great liking in novels both fiction (especially
philosophical) and non-fiction. In my free time I often watch Netflix series, Hollywood
movies, Web series etc. I love to listen songs almost all the time of the day. I am also a
fitness enthusiast and try to keep myself fit. The motto of my life is “Hard work is the
key to success” therefore, I try to not to give up in any circumstance and fulfill my
obligations no matter how worse the situation is.

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