CASE ANALYSIS: VISHAKA & ORS.

V STATE OF

RAJASTHAN & ORS.

Petitioner: Vishaka and others

Respondent: The State of Rajasthan and others

Facts of the case:

Before 1997, there were no specific guidelines in India for how an employer should handle a
sexual harassment event at work. Women who were subjected to sexual harassment at work
were required to file a complaint under Section 354 of the Indian Penal Code, which deals wit
h women’s modesty, and Section 509, which punishes an individual or individuals who use a
"word, gesture, or act intended to insult the modesty of a woman". The interpretation was left
to the police officers on whether the cases filed were legitimate or not.
• In the year 1985, Bhanwari Devi, a Dalit woman from Bhateri, Rajasthan, started
working for the Rajasthan Government's Women's Development Project (WDP). This
project helps in educating and empowering women in the rural areas of the state.
• Devi's job as a "saathin" as the program's workers was known, was to raise awareness
about cleanliness, family planning, and the importance of educating females, as well as
to campaign against infanticide, female foeticide, dowry, and child marriages.
• In 1987, as part of her employment, Bhanwari investigated a case of attempted rape
involving a woman from a nearby village. She received complete approval from the
people of her village for this gesture.
• Bhanwari took on another subject in 1992, this time based on the government's anti-
child marriage campaign. Even though they were aware that child marriage is
forbidden, all inhabitants of the hamlet expressed their disdain and ignorance towards
the development program because of their opinion that it was disturbing the traditions
and culture of the communities of the state.
• She was known to be continually involved in social causes to the disappointment and
anger of the locals of the village.
• The family of Ram Gurjar, an influential family of upper caste, was planning to
organize a wedding for their 9-month-old underage daughter. Once it came to the notice
 of Bhanwari Devi, she tried to persuade the family to not go further with their plans and
tried to educate them with regards to the campaign. But her efforts were not fruitful and
the family decided to go ahead with the wedding.
• On May 5th, 1992 the said marriage was prevented by the Sub-divisional officer (SDO)
and the Deputy Superintendent of Police(DSP) of that time. But that didn’t let the
marriage stop the very next day. No police action was taken after.
• The locals upon discovery that the police visits were caused by Bhanwari Devi's acts,
she and her family were boycotted and it eventually led to her losing her job.
• Due to the continuous efforts of Bhanwari Devi to prevent child marriage and other
atrocities against women she was continuously threatened by high level and ranking
families of the village.
• On September 22nd, 1992, four members of the Gujjar family - Ram Sukh Gujjar,
Gyarsa Gujjar, Ram Karan Gujjar, and Badri Gujjar along with one Shravan Sharma
violently gang-raped Bhanwari Devi and injured her husband to exact vengeance.
• The police delayed the investigation and avoided filing the complaint about many days.
Despite the harsh criticism and threats, the victim was able to file the case against the
preparators to get justice.
• The medical examination of the victim was delayed for fifty-two hours and the fact that
she was raped was not mentioned in the report.
• Judges were replaced five times throughout the trial, and the accused were cleared of
rape in November 1995; instead, they were found guilty of lesser offenses like assault
and conspiracy, and they were all sentenced to just nine months in prison with the
support of the local MLA Dhanraj Meena.
• The judge gave some "bizarre reasons" for clearing the accused of rape like the village
head cannot rape, men of different castes cannot participate in gang rape, elder men of
60-70 years cannot rape, a man cannot rape in front of a relative - this was about two
of the men, an uncle, and nephew, a member of the higher caste cannot rape a lower
caste woman because of reasons of purity, etc. This judgment caused an uproar in the
country.
• Many women organizations, activists, leaders and, projects who were supporting the
victim were not happy with the acquittal. To get the justice needed and to make an
example of the incident these organizations banded together and filed a Public Interest
Litigation or PIL. A women's rights organization known as 'Vishaka' filed the PIL and
 is the petitioner on this landmark case on sexual harassment. This was done in the
Supreme Court since the decision made by the Rajasthan High Court didn’t do the
victim any justice and the preparators got away scot-free.
• The use of the law to advance human rights and equality, or to raise matters of broad
public concern, is known as public interest litigation. It aids minority or disadvantaged
groups or individuals in their cause. Both public legal issues and private legal issues
can lead to high-profile public interest cases.
• This petition helped in focusing on the fundamental rights of women in the workplace
under Articles 14,15,19 and 21 of the Indian Constitution and the protection of women
from workplace sexual harassment.

Issues that were raised during the case hearing:

• Whether workplace sexual harassment is a breach of gender inequity rights and right to
life and liberty
• Possibility of application of international laws regarding sexual harassment in the
absence of similar laws in the constitution
• If there is an obligation on the part of the employer when sexual harassment is
perpetrated against or by their employees

Petitioners Arguments:

• The 'Vishaka' group, which included diverse women's rights activists, NGOs, and
other social activists filed a writ petition seeking a writ of mandamus.
• They argue that indecent acts of sexual harassment of women at work violate
women’s fundamental rights as stated in Articles 14, 15, 19(1)(g), and 21 of the
Indian Constitution.
• The petitioners raised the Hon'ble court's attention to a flaw in the Act that prevents
women from working in a safe atmosphere. They asked the court to establish standards
to prevent harassment in the workplace.
Respondents Arguments:
The solicitor general on behalf of the respondent helped the court by siding with the petitioner,
which is unusual in a court case. The respondent aided the court in determining an appropriate
technique for preventing sexual harassment and formulating rules for doing so.
Judgment Analysis:
• The Supreme Court of India recognized the need for a law that would prevent sexual
harassment and provide women with a safe working environment. In any incidence of
sexual harassment, Sections 354 and 354A of the Indian Penal Code, 1860 were to be
referred to, although these laws were not particular to the situation at hand.
• To proceed with the matter, the Court referred to international norms. It referenced the
Beijing Statement of Principles on the Judiciary's Independence in the LAWASIA
Region, which stated that the judiciary should serve as a custodian of citizens' rights
and establish laws independently in the absence of any legislative framework.
• The court, therefore, turned to the articles of the Convention on the Elimination of All
Forms of Discrimination Against Women for guidance (CEDAW). They were:
o Article 11 (1) (a) and (f) of the Constitution, which provides that the
government will take all reasonable steps to eliminate discrimination
against women in the workplace.
o Article 24 declares that the state is responsible for taking all necessary
national measures to achieve full realization.
• The Supreme Court of India developed the Vishaka Guidelines, which were to be
recognized as the law declared under Article 141 of the Indian Constitution, to combat
sexual harassment at work. The Sexual Harassment of Women at Workplace
(Prevention, Prohibition, and Redressal) Act of 2013 was based on these
standards.

Vishaka Guidelines:
• Employer’s or other equivalent authority’s duty – Such disgusting occurrences of
sexual harassment must be avoided by the employer or other responsible persons. If
such an act occurs, the organization must have a process in place to give prosecutorial
and conciliatory remedies.
• Definition – "Sexual Harassment" is defined as any unwelcome physical, verbal, or
non-verbal conduct of a sexual nature, whether direct or indirect, such as:
o physical contact and advances;
o a demand or request for sexual favors;
o sexually colored remarks;
o showing pornography;
 o any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature
• Measures for prevention – Employers or those in control of the workplace must take
preventative steps such as explicit prohibitions of sexual harassment in the form of
notifications or circulars, government fines for offenders, and suitable work conditions
in terms of hygiene, health, and recreation.
• Proceedings in case of misconduct – If the offenses committed are covered by the
Indian Penal Code, 1860, the employer is obligated to take legal action by filing a
complaint with the competent authority.
• Appropriate disciplinary action – If a breach of service regulations occurs, disciplinary
action must be initiated as soon as possible.
• Redressal mechanism – To address complaints, an organization must have a redressal
procedure in place. This must be done regardless of whether the act is illegal under the
Indian Penal Code, 1860, or any other legislation.
• Redressal committee – Women must make up more than half of such a redress
mechanism, or more precisely, such a complaint committee, and its chair must be a
woman. A counseling facility must be included on the committee. Collaboration with
NGOs or other organizations that are aware of these issues is also allowed. A report on
the progress of the issues dealt with by the committee must be provided to the
government every year.
• Spreading awareness – Employer-employee meetings are required to address sexual
harassment issues. To raise awareness of the issue, the employer must take suitable
actions/measures.

Conclusion:
The Vishaka Guidelines created a strong legal platform for all women to courageously fight
against sexual harassment, thanks to the Supreme Court. The Vishaka vs State of Rajasthan
case revolutionized people's perceptions about sexual harassment charges, which were
previously dismissed as minor issues.
The Supreme Court of India affirmed the constitutional ideals of equality and liberty in the
Vishaka judgment. The Sexual Harassment of Women at Workplace (Prevention, Prohibition,
and Redressal) Act, 2013, was based on the Vishaka Guidelines. However, Bhanwari Devi, the
figure that sparked the need for suitable legislation to protect women from sexual harassment,
is still waiting for justice two decades later.
Sexual Harassment of women at work is a very dreadful yet sadly common occurrence in India
with a 46% rise seen in 2021 alone. If no strict action is taken against this crime, it will
immediately affect the working conditions of Indian women and, on the other side, India's
economic predicament. Because women make up a large portion of the working population in
our country, the government should enact tough regulations prohibiting sexual harassment in
the workplace. It should be abolished to protect women's dignity and respect. Institutions and
organizations must use a variety of innovative ways and abilities to protect their female
employees from such a societal blight. The fundamental goal of the stabilization of this right
is to promote gender equality at work without discrimination or discrimination among an
organization's employees.