CASE LAW -3

VISHAKHA & OTHERS VS STATE OF RAJASTHAN & OTHERS

SUBMITTED BY –
ARJUN R PAIGWAR
ROLL NO – 13
COURSE – LLB 3YEARS
SEM-2
CITATION – (1997) 6 SCC 241

CASE TYPE – Public Interest Litigation & Criminal Writ

PETITIONER – Vishakha & Others

RESPONDENT – State of Rajasthan & Others

CASE STATUS/ DECIDED ON – 13 August 1997

STATUES REFERRED - Article 14, Article 19, and Article 21

BENCH – 3

JUDGES - Chief Justice J.S. Verma,

Justice Sujata V. Manohar

Justice B.N. Kirpal

FACTS - Bhanwari Devi, a lady from Bhateri, Rajasthan, started working under the Women’s
Development Project (WDP), run by the Government of Rajasthan, in 1985.

In 1992, Bhanwari took up an issue based on the government’s campaign against child marriage
as part of her job. The villagers were ignorant of the matter and supported child marriages despite
knowing that it was illegal.

In the meantime, the family of Ram Karan Gurjar decided to conduct such a marriage of his
infant daughter. Bhanwari attempted to convince the family not to perform the marriage.
However, her endeavours brought about being vain. The family chose to proceed with the
marriage.

On 5th May 1992, the sub-divisional officer, along with the Deputy Superintendent of Police
(DSP), went and stopped the said marriage. However, the marriage was performed the next day,
and no police action was taken against it. Later, it was established by the villagers that the police
visits were a result of Bhanwari Devi’s actions. This led to boycotting Bhanwari Devi and her
family, whereby she lost her job.

To seek revenge, on 22nd September 1992, five men, i.e., four from the above-mentioned Gurjar
family- Ram Sukh Gujjar, Gyarsa Gujjar, Ram Karan Gujjar, and Badri Gujjar along with one
Shravan Sharma, attacked Bhanwari Devi’s husband and brutally gang-raped her.
The police had attempted to play all dirty tricks to prevent her from filing any complaint due to
which there was a delay in the investigation as well as medical examination which was deferred
for 52 hours only to find that no reference of rape was mentioned in the report.

At the police station, she was continually and grossly taunted by the women countable for the
whole of midnight.

At past midnight she was asked by the policeman to leave her lehnga as the evidence of that
incident and go back to her village. She was just left with the bloodstained dhoti of her husband
to wrap her body, because of which they needed to go through their entire night in that police
station.

In the absence of adequate proof and with the help of the local MLA Dhanraj Meena, all the
accused managed to get an acquittal in the Trial Court. Women activists and organisations chose
not to be silent and raised strong protests and voices against the acquittal.

A PIL was filed by a women’s rights organisation known as ‘Vishaka’, which focused on the
enforcement of the fundamental rights of women at the workplace under the provisions of
Articles 14, 15, 19, and 21 of the Constitution of India and the need to protect their sexual
harassment at the workplace.

ISSUE - Whether its Violation of fundamental rights of Bhanwari Devi by the decision of trial
court guaranteed under article 14,15,19(g) and 21 of Constitution of India?

What is the role and responsibility of employer in sexual harassment cases?

Is it possible for the court to apply international laws in the absence of applicable measures under
existing law?

Court highlighted the problem of sexual harassment at work places and gender inequality,
violence against women, assault.

ARGUMENTS OF BOTH PARTY

PETITIONER - A writ petition, seeking the writ of mandamus was filed by the ‘Vishaka’
group which comprised of various women’s rights activists, NGOs, and other social activists.
They put forward their argument that the indecent acts of sexual harassment of women at
Workplace violate the fundamental rights enshrined under Article14, 15, 19(1)(g) and 21 of
the Constitution of India. The petitioners brought the attention of the Hon’ble court to the
loophole that the legislation has regarding the provision of a safe working environment for
women. They requested the Hon’ble Court to frame guidelines for preventing sexual
harassment at Workplace. 

RESPONDENT - The learned Solicitor General appearing on behalf of the respondents

(with their consent) in this case did something unusual i.e, supported the petitioners. The
respondent assisted the Hon’ble court in figuring out an effective method to curb sexual
harassment and in structuring the guidelines for the prevention of the same. Fali S. Nariman –
the amicus curiae of the Hon’ble court along with Ms. Naina Kapur and Ms. Meenakshi
provided assistance to the Hon’ble court in dealing with the said case. 

JUDGEMENT - Fundamental rights of working women are violated under article 14, 19 and
21 of the constitution of India. With the increasing awareness and emphasis on gender justice,
there is increase in the effort to guard such violations The incident reveals the hazards to
which a working woman may be exposed and the depravity to which sexual harassment can
degenerate.

It is clear violation of the rights under Articles 14, 15 and 21 of Constitution. One of the
logical consequences of such an incident is also the violation of the victim’s fundamental
right under Article 19(1)(g) ‘to practice any profession or to carry out any occupation, trade
or businesses. Such violations, therefore, attract the remedy under Article 32 for the
enforcement of these fundamental rights of women. Thus, the power of this Court under
Article 32 for enforcement of the fundamental rights and the executive power of the Union
have to meet the challenge to protect the working women from sexual harassment and to
make their fundamental rights meaningful. Apart from previous articles mentioned, few
articles which also have relevance are Article 15, Article 42, Article 51A and Article 253.The
progress made at each hearing culminated in the formulation of guidelines to which the
Union of India gave its consent through the learned Solicitor General, indicating that these
should be the guidelines and norms declared by this Court to govern the behavior of the
employers and all others at the work places to curb this social evil The Government of India
has also made an official commitment, inter alia, to formulate and operationalize a national
policy on women which will continuously guide and inform action at every level and in every
sector; to set up a Commission for Women’s Rights to act as a public defender of women’s
human rights; to institutionalize a national level mechanism to monitor the implementation of
the Platform for Action.

Vishakha Guidelines

Duty of the Employer or other responsible persons in work places and other institutions:

 It shall be the duty of the employer or other responsible persons in work places or other
institutions to prevent or deter the commission of acts of sexual harassment and to provide
the procedures for the resolution, settlement or prosecution of acts of sexual harassment by
taking all steps required.

Sexual Harassment Definition 

Sexual harassment includes unwanted sexually determined behavior (directly or indirectly)

such as:

 physical contact and advances

 a request or demand for sexual Favours
 remarks with a sexual connotation
 displaying pornography
  any other unwelcome sexual physical, verbal, or nonverbal conduct
Preventive Step

All employers or persons in charge of work place whether in the public or private sector
should take appropriate steps to prevent sexual harassment. Without prejudice to the
generality of this obligation they should take the following steps-

 Express prohibition of sexual harassment as described above at the work area ought to
be notified, posted and circulated in suitable ways
 The Rules/Regulations of Government and Public Sector bodies relating to conduct
and discipline should include rules/regulations prohibiting sexual harassment and
provide for appropriate penalties in such rules against the offender.
 As regards private employers' steps need to be taken to encompass the aforesaid
prohibitions in the standing orders under the Industrial Employment (Standing
Orders) Act, 1946.
 To ensure there is no hostile environment at work place Appropriate work conditions
should be provided in respect of work, health, hygiene and leisure and no women
employee should have realistic grounds to believe that she is deprived in connection
with her employment.
Criminal Proceedings

Where such conduct amounts to a specific offence under the Indian Penal Code or under any
other law, the employer shall initiate appropriate action in accordance with law by making a
complaint with the appropriate authority. In particular, it should ensure that victims, or
witnesses are not victimized or discriminated against while dealing with complaints of sexual
harassment. The victims of sexual harassment should have the option to seek transfer of the
perpetrator or their own transfer.

Disciplinary Action

Where such conduct amounts to misconduct in employment as defined by the relevant service
rules, appropriate disciplinary action should be initiated by the employer in accordance with
those rules. 

Complaint Mechanism

Whether or not such conduct constitutions an offence under law or a breach of the service
rules, an appropriate complaint mechanism should be created in the employers' organization
for redress of the complaint made by the victim. Such complaint mechanism should ensure
time bound treatment of complaints.

Complaints Committee

Sexual harassment Complaints Mechanism 

 All workplaces should have an appropriate complaints mechanism with a

complaints committee, special counsellor or other support services.
  A woman must head the complaints committee and no less than half its members
should be women.
 The committee should include an NGO/individual familiar with the issue of sexual
harassment.
 The complaints procedure must be time-bound.
 Confidentiality must be maintained.
 Complainants/witnesses should not experience victimization/discrimination during the
process.

Workers Initiative

Employees should be allowed to raise issues sexual harassment at workers meeting and in
other appropriate forum and it should be affirmatively discussed in Employer - Employee
Meetings. 

Awareness

Awareness of the rights of female employees in this regard should be created in particular by
prominently notifying the guidelines (and appropriate legislation when enacted on the
subject) in a suitable manner. 

Third Party Harassment

 Where sexual harassment occurs as a result of an act or omission by any third party or
outsider, the employer and person in charge will take all steps necessary and
reasonable to assist the affected person in terms of support and preventive action.
 The Central / State Governments are requested to consider adopting suitable measures
including legislation to ensure that the guidelines laid down by this order are also
observed by the employers in Private Sector. 
 These guidelines will not prejudice any rights available under the Protection of
Human Rights Act, 1993.

Related Provisions
Constitution of India

 Article 14 (the right to equality)

 Article 15 (the right to non-discrimination)
  Article 19(1)(g) (the right to practice one's profession)
   Article 21 (the right to life)
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW)

 Article 11(1) (a, f): This article gives the right to work and right to protection of
health, and also gives the right to safety in working conditions.
  Article 24: According to this article state parties should adopt all necessary
mechanisms or measures at the national level to achieve the aim and the full
realization of the rights which are recognized by the present convention.

RATIO DECEDENDI - It is a fundamental right to carry any occupation, trade, or profession

but the right highly depends on the availability of a safe working environment. The Right to life
embedded in the Constitution of India encompasses the right to life with dignity.

CONCLUSION - The constitutional principles of equality and liberty have been upheld by the
Hon’ble Supreme Court of India in the Vishaka Judgement. The Supreme Court of India’s
judgement only proposed guidelines to alleviate the problem of sexual harassment.
India finally enacted a law on the prevention of sexual harassment against female employees at
the workplace, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 (“Sexual Harassment Act”), which came into effect on 23 April 2013.
It is cardinal to note the fact that, though such comprehensive laws have been enacted to
safeguard women in India, it still ranks as the most dangerous country for women. Therefore, it’s
the responsibility of everyone to ensure women’s safety and dignity, even if legislation doesn’t
exist.