Semester III Sanskriti

Meena

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW,

PUNJAB

Case Comment:

Vishakha & Ors. v State of Rajasthan

Submitted by: Submitted to:

Sanskriti Meena Dr. Lakhwinder Singh

Roll No. 22161 (Assistant Professor of law)

Section ‘B’

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BONAFIDE CERTIFICATE

This case comment on “Vishakha & Ors. v State of Rajasthan” is an original work done by
Sanskriti Meena and is a student at the Rajiv Gandhi National University of Law, Punjab.
Further, she was under the supervision of Dr. Lakhwinder Singh for this project.

Dr. Lakhwinder Singh

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ACKNOWLEDGEMENT

It is an honour to mention and let people know the chief support of a project. Firstly, I would
like to convey my recognition to my university for encouraging research-based academic
projects that permitted me to inspect and understand the concepts in a better way. Further, I
would be delighted to show my gratitude towards the Vice-Chancellor of RGNUL for
guiding the faculty and the students as well, he has encouraged us with new ways of research
methodology for working on various projects. Great teachers focus not just on teaching but
also on correctly instructing their students; In the same way, I found my mentor in Dr.
Lakhwinder Singh. He has always been encouraging and was always reachable while I was
working on this project. He led me, made me understand, and closely observed the progress
of this project. I would be delighted to show gratitude towards my friends and family; without
them, this project would have always been a thought in my mind. They pushed me to enter
the shoes of my true potential and ability and have been constantly supportive of me.

Sanskriti Meena

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Table of Content

1. Introduction..........................................................................................................................5

2. Case Law Analysis................................................................................................................6

2.1 Facts.....................................................................................................................................6

2.2 Issues....................................................................................................................................7

2.3 Proceedings.........................................................................................................................7

ARGUMENT OF APPELLANT.........................................................................................7

ARGUMENT OF RESPONDENT.....................................................................................7

3. Held........................................................................................................................................7

3.1 Facts of Judgement.........................................................................................................7

3.2 Related Provision............................................................................................................9

4. Relevant Cases......................................................................................................................9

5. Vishakha Guidelines..........................................................................................................10

6. The Sexual Harassment of Women at Workplace (Prevention,. Prohibition and

Redressal) Act,........................................................................................................................11

7. Critical overview:...............................................................................................................11

8.Conclusion............................................................................................................................12

9. References...........................................................................................................................13

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1. Introduction

Justice Arjit Pasayat beholder from his beautiful thought that- “while a murderer destroys the
physical frame of the victim, on the other hand the rapist defiles the soul of a helpless
female”. In our society social evils directly indirectly affects the members of society one of
the prevailing social evils in society is sexual harassment. Sexual harassment means sexual
1
favours from one gender to other which are not welcomed. In India, sexual harassment is
referred to as "Eve Teasing" and is characterised by the following behaviours: making
sexually suggestive remarks or jokes, touching someone without permission, requesting sex,
sending explicit or suggestive photos, texts, or emails, and disparaging someone based solely
on their sexual orientation. As a result, sexual harassment infringes against women's
fundamental rights to gender equality, as stated in Article 14 of the Indian Constitution, as
well as their fundamental rights to life and a dignified existence, as stated in Article 21 of the
Indian Constitution. even though the Indian Constitution makes no mention of sexual
harassment at work.2

Both men and women can be victims of sexual harassment and when it happens at
workplaces, schools, or universities it amounts to sex discrimination. Sexual harassment
includes:

 Making physical contact without consent.

 Passing sexual comments or to insult with sexual comment.
 To ask for sexual favour
 Leering or making sexual gestures towards you
 Showing offensive material
 To question you about sex life
 Performing a criminal act against you, such as calling you indecently, exposing them
indecently, or abusing you sexually.

Gender inequality and sexual harassment is one of the common problems faced by
women everywhere but the condition in India is deteriorating. In 1997 the honourable

1
Juris Centre, ‘Case Comment: Vishakha v. State of Rajasthan’ (Juris Centre9 May 2021)
<https://juriscentre.com/2021/05/10/case-comment-vishakha-v-state-of-rajasthan/> accessed 28 October 2023.
2
Simran, ‘Case Analysis- Vishaka and Others V/S State of Rajasthan’ (legalserviceindia.com2021)
<https://www.legalserviceindia.com/legal/article-374-case-analysis-vishaka-and-others-v-s-state-of-
rajasthan.html#google_vignette> accessed 28 October 2023.

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Supreme court of India set guidelines based on fundamental rights given in our
constitution to deal with sexual harassment faced by women in their workplace. 3

2. Case Law Analysis

2.1 Facts

1. Bhawari Devi was a social worker who lived in village Bhateri in state Rajasthan
located 55 km from Jaipur.
2. In 1985 government started a project to stop child marriage called ‘Women
Development Project’. Many women were appointed in the program Bhawari Devi
was one of them appointed as sathini for the purpose of communication in villages.
3. While at work she was working to stop marriage of a nine-months-old girl in
Ramkaran Gujjar’s family. However, marriage took place the next day.
4. On 22 September 1992 Bhawari Devi along with her husband was working in a field.
Five men out which four were from Ramkaran Gujjar’s family
(Ram Sukh Gujjar, Gyarsa Gujjar, Ram Karan Gujjar and Badri Gujjar) and Shravan
Sharma planned to take revenge and attacked her husband while they were in a field
and gang raped her in front of her husband.
5. They went to the police station, but they didn’t help her and she was told to leave her
Ghaghara/lehnga at the police station for medical evidence. She only had blood-
stained dhoti of her husband to wrap herself in it. However, she managed to file a
complaint.
6. The medical examination delayed for 52 hours, and the results didn’t mention any
signs of rape.
7. The Jaipur district and session court dismissed the case on November 15, 1995,
finding all five defendants not guilty. After five judges were replaced, the sixth judge
declared that the defendants were not guilty, arguing that Bhawari's husband could not
have stand by while his wife was sexually assaulted by a gang.
8. The matter caught the attention of public when published in newspaper called
Rajasthan Patrika and went viral and then, under pressure from non-governmental
organisations and women's groups, the State government opted to appeal the verdict.

3
Abhijit Bansal and Tarun Ghai, ‘CASE COMMENTARY on VISHAKA v. STATE of RAJASTHAN 1’
(2023) <https://jcil.lsyndicate.com/wp-content/uploads/2023/06/Case-Commentary-On-Vishaka-v.-State-of-
Rajasthan-3.pdf> accessed 28 October 2023.

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The matter was heard only once by the high court. At the time of the high court
proceedings, two of the five accused had passed away.
9. This droves four organisations, a non-governmental organisation, and a women's
rights group called "Vishakha" to get together and file a petition concerning this
horrific gang rape.
10. These organisations filed a Public Interest Litigation (PIL) against this heinous act of
gang rape. The PIL focused on the enforcement of women's fundamental rights at
work under Articles 14, 15, 19, and 21 of the Indian Constitution. It also brought up
the need to shield women from sexual harassment in the workplace.4

2.2 Issues

o Whether to handle cases of sexual harassment in the workplace, written guidelines

were necessary?
o Do workplace sexual harassment incidents constitute a breach of a woman's
fundamental rights?

2.3 Proceedings

ARGUMENT OF APPELLANT

 In her writ petition, Vishaka argued that, in the lack of sufficient legislation, sexual
harassment at work is a widespread occurrence and that employers frequently get
away with it. These actions are against the fundamental rights of women as stated in
Articles 14, 15, 19(1)(g), and 21 of the Indian Constitution.
 A request to establish rules for stopping sexual harassment in workplaces was
presented at the Hon'ble Court.

ARGUMENT OF RESPONDENT

 The solicitor general made an unusual move in this case. with the respondent's
assistance, the state supported the petitioners. The respondent helped the honourable
court devise a practical strategy for preventing sexual harassment and develop the
legislation meant to stop it.

4
Admin, ‘VISHAKHA v. STATE of RAJASTHAN AIR 1997 SC 3011 - Legal Vidhiya’ (Legal Vidhiya27
March 2023) <https://legalvidhiya.com/vishakha-v-state-of-rajasthan-air-1997-sc-3011/> accessed 26 October
2023.

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3. Held
3.1 Facts of Judgement

 A three-judge bench led by Justice J.S. Verma heard this matter. The judges
concluded that although "gender equality" is not specifically defined in any law or
article, it is covered by articles 14, 19, and 21.
 Any form of sexual harassment of a woman at work is against fundamental human
rights; in particular, it contradicts the idea of "gender equality," which in turn
breaches the fundamental rights of women as stated above and protected by the Indian
Constitution. Article 19(1)(g) of the Indian Constitution guarantees citizens the
freedom to practise whatever profession they choose, as well as to engage in any
trade, business, or occupation. These abuses of their fundamental rights are also
against this provision. Specifically, this right imposes a legal duty on employers to
guarantee a safe work environment for female employees and to prevent
discrimination against female employees. The court noted that the right to live with
dignity was a part of the right to life as guaranteed by article 21.
 The petitioner and the Supreme Court agreed that setting down rules and conventions
would be the only effective means of preventing crimes against women that might
take place in the workplace. The Indian government and the government of Rajasthan
were instructed by the court to make sure that the rules established by the court are
followed to the greatest extent feasible in all workplaces.
 When this case came before the Supreme Court in 1997, India had neither legislation
governing crimes against women at work nor legislation addressing concerns related
to "Gender Equality." The Supreme Court concluded in this case that, given the
absence of legislation, the established rules and norms should be regarded as law for
the purposes for which it exercised its authority under articles 141 and 32 of the
Indian Constitution.
 The Court further declared that until suitable legislation is passed, these rules would
be deemed to constitute the law. When establishing this court, the state exercised its
authority granted to it under Article 51(c) when read in conjunction with Article 253
regarding the Entry of the Union List of the 7th Schedule of the Constitution. The
state could then refer to international conventions to the extent that they do not
contravene any provisions under domestic law. The Supreme Court concluded that by

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creating these standards and guidelines, it would discharge its obligations both
domestically to Indian citizens and internationally.

3.2 Related Provision

※ Article 14 (the right to equality)- “No person within the territory of India shall be
denied equality before the law or equal protection of the laws by the State.”
※ Article 15(c) (The right to non-discrimination)- “This clause does not exclude the
State from implementing specific measures concerning women and children.”
※ Article 19(1) (g) (The right to practice one’s profession)- “to work in any field and to
conduct any kind of trade, business, or occupation.”
※ Article 21 (Right to life) – “Nobody may be deprived of their life or personal freedom
unless it is done in accordance with a legally prescribed process.”5

4. Relevant Cases

 Medha Kotwal Lele & Ors. V. Union of India & Ors. 6: In this case a group of
women's rights activists, among them Medha Kotwal Lele, filed a petition challenging
the validity of the Sexual Harassment of Women at the workplace (Prevention,
Prohibition, and Redressal) Act, 2013 (PoSH Act), which gave rise to the lawsuit.
Petitioners argued that the PoSH act is not enough to protect women from sexual
harassment at workplace. After dismissing the petitioners' arguments, the Supreme
Court ruled that the PoSH Act was lawful and adequately shielded women from
sexual harassment in the workplace. The Medha Kotwal Lele judgement is significant
because it upholds the PoSH Act's protection of women from sexual misconduct in
the workplace and offers helpful guidance on how to put it into practise. The case
seeks to establish a crucial precedent in India for the fight against sexual harassment
and other forms of gender-based violence.
 Tuka Ram And Anr vs State of Maharashtra, (Mathura Case)7: This case was a
criminal case that the Indian Supreme Court ruled in 1979. The case started with an
event that happened in 1972 at a Maharashtra police station where two police officials
were accused of raping a young woman named Mathura. Following a complaint from
Mathura's family, the police officers were accused of rape as well as other offences.
The trial court found the cops not guilty, citing Mathura's intention to cooperate in
5
The Constitution of India 1950.
6
Medha Kotwal Lele & Ors Vs UOI & Ors (Supreme Court).
7
Tuka Ram and Anr Vs State of Maharashtra, (Mathura Case) (Supreme Court).

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sexual relations with them. The High Court heard an appeal from Mathura's family
and upheld the acquittal. The Supreme Court heard an appeal of the case and decided
in Mathura's favour, ordering a new trial for the police officers, the court held that
Mathura had not consented to sexual intercourse with police officers. The Mathura
case holds significance since it established a fundamental principle: a woman's
consent to engage in sexual activity must be secured via voluntary and explicit
communication; consent is not always implied by a lack of physical resistance. In
India's ongoing battle against sexual assault and other gender-based crimes, the case
continues to set a significant precedent.8

5. Vishakha Guidelines

Since there was not any legislation pertaining to international convention and law before this
case, the Supreme Court combined the two. The employer was given the responsibility to
guarantee that there was no sexual harassment at work, in addition to other directives from
the court. Furthermore, it was mandated that the workplace handle the worker's complaint of
sexual harassment, therefore a complaint committee was to be established. It developed a set
of twelve rules that all institutions must adhere to. These rules can also be useful to
legislators should the necessity ever arise. These rules were based on Section 2(d) of the
Human Rights Act of 1993.

1. It emphasised the Employer's need to provide a suitable system for the reporting,
examination, and resolution of sexual harassment-related issues.
2. It expanded the concept of sexual harassment to encompass any spoken or done words
or behaviour that eventually compromises a woman's virginity. It also includes
displaying any illegal content, requesting sexual activity, and verbally or nonverbally
abusing someone.
3. It stated that the employer has an obligation to inform all employees of the
organization's policies and the repercussions for breaking them.
4. If the accused becomes uneasy working in such setting, the victims are given the
means to swiftly complete the accused's transfer.
5. Measures to be taken to enforce heavy penalties against those accused.
6. Workers should have the voice and authority to speak up against any sexual
harassment that occurs within the company.
8
‘Landmark Judgements Related to Prevention of Sexual Harassment (PoSH)’ (ILMS Academy23 December
2022) <https://www.ilms.academy/blog/landmark-judgements-on-posh>.

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7. To register complaints, a suitable complaint procedure should be established.

8. A complaint committee will be established for the same, with at least half of its
regular members being women.
9. To inform every employee about the rights and the composition of these committees
10. The formation of laws by legislative bodies or other governing bodies to promote
development.
11. If the fundamental rights are not upheld, the employer is obligated to offer assistance
of all kinds.
12. These standards comply with the 1993 Protection of Human Rights Act.9

6. The Sexual Harassment of Women at Workplace (Prevention,

Prohibition and Redressal) Act,

The harassment of women at Workplace (Prevention, Prohibition and Redressal) Act 2013
("the Act") was passed following 16 years of Vishaka with the intention of protecting girls
from workplace harassment, preventing, and resolving harassment complaints, and handling
matters related to or incidental to these goals. According to the Act, harassment includes any
unwanted behaviour or acts (directly or indirectly), such as unwanted advances or physical
contact, requests for sexual favours, sexually suggestive comments, the display of
pornography, and other unwanted verbal, nonverbal, or physical acts. Any unwanted sexual
conduct is going to be seen as harassment.

One salient aspect of the Act is its provision for the establishment of an Internal Complaints
Committee, comprising at least ten employees, in each organisation or institution to receive
and handle reports of sexual harassment. The Act provides for the District Officer to appoint
a Local Committee in each district when there are fewer than ten employees. The committee
will have the same authority as a civil court to investigate such a complaint.

7. Critical overview:

 First, it leaves out the women who work in traditionally male-dominated fields like
agriculture and the armed forces.
 Second, because the act exclusively shields women, it seems to be gender biassed.

9
Juris Centre, ‘Case Comment: Vishakha v. State of Rajasthan’ (Juris Centre9 May 2021)
<https://juriscentre.com/2021/05/10/case-comment-vishakha-v-state-of-rajasthan/> accessed 28 October 2023.

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 Thirdly, there is a lot of room for fabrications under this act. There are just too many
opportunities for these laws to be used against women in order to serve their own
interests.
 Fourth, it is discriminatory because it allows for the fixing of compensation based on
an individual's financial means because a person with high rank and standing will be
paid more than a person with status. This seems to be done for no apparent reason, but
it still causes discrimination.10

8.Conclusion

The Hon'ble the Supreme Court of India upheld equality and liberty as fundamental
constitutional elements in the Vishaka Verdict. The ruling by the Indian Supreme Court
essentially made recommendations for how to lessen the issue of sexual harassment. In India,
sexual harassment against women at work occurs rather frequently. The working conditions
for women in India will be negatively impacted if tough action is not taken against this crime,
which will also negatively impact the country's economy. Since women make up a large
portion of the working population in our nation, the government ought to enact strong rules
prohibiting sexual harassment in the workplace. Promoting gender equality at work without
any sort of discrimination or prejudice among employees of an organisation is the primary
goal underlying the stabilisation of this right.

10
Ritul Tyagi, ‘Vishaka & Ors. V/S State of Rajasthan | ProBono India’ (probono-india.in8 September 2020)
<https://probono-india.in/research-paper-detail.php?id=600> accessed 28 October 2023.

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9. References

1. Juris Centre, ‘Case Comment: Vishakha v. State of Rajasthan’ (Juris Centre9 May
2021) <https://juriscentre.com/2021/05/10/case-comment-vishakha-v-state-of-
rajasthan/> accessed 28 October 2023.
2. Simran, ‘Case Analysis- Vishaka and Others V/S State of Rajasthan’
(legalserviceindia.com2021) <https://www.legalserviceindia.com/legal/article-374-
case-analysis-vishaka-and-others-v-s-state-of-rajasthan.html#google_vignette>
accessed 28 October 2023.
3. Abhijit Bansal and Tarun Ghai, ‘CASE COMMENTARY on VISHAKA v. STATE
of RAJASTHAN 1’ (2023)
<https://jcil.lsyndicate.com/wp-content/uploads/2023/06/Case-Commentary-On-
Vishaka-v.-State-of-Rajasthan-3.pdf> accessed 28 October 2023.
4. Admin, ‘VISHAKHA v. STATE of RAJASTHAN AIR 1997 SC 3011 - Legal
Vidhiya’ (Legal Vidhiya27 March 2023) <https://legalvidhiya.com/vishakha-v-state-
of-rajasthan-air-1997-sc-3011/> accessed 26 October 2023.
5. The Constitution of India 1950.
6. Medha Kotwal Lele & Ors Vs UOI & Ors (Supreme Court).
7. Tuka Ram and Anr Vs State of Maharashtra, (Mathura Case) (Supreme Court).
8. ‘Landmark Judgements Related to Prevention of Sexual Harassment (PoSH)’ (ILMS
Academy23 December 2022) <https://www.ilms.academy/blog/landmark-judgements-
on-posh>.
9. Juris Centre, ‘Case Comment: Vishakha v. State of Rajasthan’ (Juris Centre9 May
2021) <https://juriscentre.com/2021/05/10/case-comment-vishakha-v-state-of-
rajasthan/> accessed 28 October 2023.
10. Ritul Tyagi, ‘Vishaka & Ors. V/S State of Rajasthan | ProBono India’ (probono-
india.in8 September 2020) <https://probono-india.in/research-paper-detail.php?
id=600> accessed 28 October 2023.

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