RAJIV GANDHI NATIONAL UNIVERSITY OF LAW

PATIALA, PUNJAB

Topic:-CASE COMMENT

VISHAKA VS. STATE OF RAJASTHAN

SUBMITTED TO- SUBMITTED BY-

Mr. Anubhav Kumar Pushpendra Sharma

(Assistant Professor (19016)

of Law)

1
 Acknowledgement
I would like to take this opportunity to express my profound gratitude and deep regard to
Mr. Anubhav Kumar, (Assistant Professor of Law) for his guidance and valuable
feedback and constant support throughout the duration of project. His suggestions were
of monumental help in the rough work of my project.

I would also like to express my gratitude to Rajiv Gandhi National University of Law,
Patiala for giving me the topic that enriched my knowledge. I also like to thank the
library staff for constant support.

Lastly I am thankful to my parents and friends for their constant support and coordination
in the completion of the research work.

2
 Certificate of Submission

This is to certify that this project ( Case Comment:-Vishaka vs. State of

Rajasthan) is submitted to the Rajiv Gandhi National University of Law, Patiala in

partial fulfillment of the requirement of the B.A. LLB (Hons.) course. It is an original
and bonafide research work carried under my supervision and guidance.

3
 TABLE OF CONTENTS
ACKNOWLEDGEMENT...................................................................................................2

CERTIFICATE OF SUBMISSION....................................................................................3

INTRODUCTION...............................................................................................................5

FACTS OF THE CASE.......................................................................................................7

ISSUES................................................................................................................................8

JUDGMENT........................................................................................................................8

CRITICAL ANALYSIS....................................................................................................10

CONCLUSION.................................................................................................................12

4
 INTRODUCTION

The status of women in our society can only be uplifted when we as a community tread
towards the path of social justice, equality, and dignity- and provide women, without any
discrimination, equal opportunities in every sphere of life. India has adopted several
legislations for uplifting women in the social sphere, and one such legislation was “The
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013” [“POSH”], which was an attempt to protect women from sexual harassment at
workplaces and allow them to work with dignity. Although ‘POSH’ has significantly
improved the conditions for women in the working sector, the author believes that it is
infected with plenty of shortcomings, which ultimately defeat the purpose of the
enactment. The author believes that it is just another typical Indian legislation, waiting to
be improved only after some unprecedented incident has surfaced. This note, henceforth,
firstly by establishing that ‘POSH’ has been under-deliberated by the legislature, will
enumerate how the ‘sexual act’ paradigm adopted by the legislature has limited the scope
of POSH. The article will outline the shortcomings of POSH and discuss how it would
appear as though enough deliberations were undertaken by the legislature and that the
suggestions made by the (Retd.) Justice Verma Committee were adopted.

The need for legislation to protect women at workplaces surfaced for the first time in
1997, before the Supreme Court in Vishakha v. State of Rajasthan, wherein a woman
belonging to a lower caste was gang-raped by the members of the high caste. The victim
was employed in the rural development scheme of the Government of Rajasthan, and her
rape was an aftermath of her attempts to stop the child marriage of a nine-month-old girl
belonging to the accused’s family. As a result, in order to fill the lacuna, the Supreme
Court laid down some guidelines to protect women at workplace(s) from harassment till
the legislature came up with a concrete legislation. The Supreme Court relied upon
International Conventions such as the Convention on Elimination of All Forms of
Discrimination against Women to frame guidelines to promote gender equality and the
right to work with dignity.

It was only 15 years after Vishakha that the legislature came up with POSH in 2013,
which the author argues was not deliberated enough. It becomes pertinent to observe that
the POSH was overshadowed by the Vishakha judgment, as not only the definition of
‘sexual harassment’ laid down by the Court in Vishakha was reproduced in POSH but
also other guidelines were similarly reiterated. The deliberation which the legislature did
5
not undertake is apparent as no improvisation was done, and the scheme adopted by the
Court was completely adhered to and reiterated. If POSH was just to replace the already
existent guidelines laid down by the Court in Vishakha, why was there a need for a
concrete efficient enactment by the legislature? The result of which is that POSH is just a
mirror reflection of the already in force Vishakha guidelines.1

The argument that the legislature did not undertake many deliberations, and did not want
to adopt an approach different from that of the Court is further strengthened by the fact
that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Re-
dressal) Bill, 2012 was passed in the Lok Sabha without any sort of debate. Furthermore,
it is pertinent to observe that the legislature did not adopt the changes suggested by the
Justice Verma Committee while the Bill was still pending in the Rajya Sabha. The
Committee was formed as an aftermath of the incident that occurred in the capital
in 2012, and this was in clear contrast to the approach of the legislature which without
much reluctance adopted the recommendations made by the Verma Committee for the
Rape Laws.

The Committee suggested: that Section 10 which provides an opportunity for conciliation
between the victim and the accused should be omitted as it further undermines the dignity
of a woman; that Section 14 which prescribes a punishment upon a woman for filing a
fraudulent complaint should also be omitted as it might nullify the object the act seeks to
achieve, and lastly that an ‘Employment Tribunal’ must be established instead of
adopting the ‘Internal Complaint Committee’. The Committee believed that a quasi-
judicial domestic committee will not be able to fulfill the object of the enactment
effectively. However, none of the suggestions of the Committee (especially of
establishing an Employment Tribunal) were debated or adopted in the parliament. Had
the suggestions of the Committee been incorporated, the POSH would have not
been argued by various stakeholders to be under-deliberated.

1
Vishakha vs State of Rajasthan, (1997) 6 SCC 241 .
6
 FACTS OF THE CASE

 Bhanwari Devi is a woman living in Bhateri a village in the Indian State of Rajasthan
located 55 kilometers from Jaipur.
 In 1985, Bhanwari Devi became a Sathin a grassroots worker employed as part of the
Women's Development Project (WDP) which was about to stop child marriage in a
village and this social program was administered by Rajasthan state government.
 On a day while at work she was working to stop a marriage of a 9-month-old girl child in
Ramkaran Gujjars (thakurs) family.
 Unfortunately, the family accused her of humiliating them, and still managed to marry
off the baby the next day.
 The five men, four from the aforementioned Gurjar family (Ram Sukh Gujjar, Gyarsa
Gujjar, Ram Karan Gujjar, and Badri Gujjar) and one Shravan Sharma, planned to exact
revenge and then attacked Bhanwari Devi's husband, who was beaten unconscious later
she was brutally gangraped by all five men.
 She went to the police station, but that didn't help she was told to leave her lehenga at the
station for medical evidence. Bhanwari Devi, in her never-ending quest for justice,
managed to file a complaint.
 The medical examination was delayed for fifty-two hours. However, the examiner did not
mention any rape commission in the report, instead mentioning the victim's age.
 In the verdict of 15 November 1995, the district and sessions court in Jaipur dismissed
the case and acquitted all the five accused.
 Five judges were changed, and it was the sixth judge who ruled that the accused were not
guilty, stating inter alia that Bhanwari's husband couldn't have passively watched his wife
being gang-raped.
 The matter came in light when a news published in Rajasthan Patrika went viral and then
The State Government decided to appeal the judgement after being pressured by women's
groups and non-governmental organizations.
 15 years after the incident, in 2007 the Rajasthan High Court held only one hearing on
the case and two of the accused were dead by then.
 This provoked women’s groups and NGO and a women’s rights group known as
‘Vishaka’ along with four other organizations to come together and filed a petition
against this brutal gang rape
7
 The PIL was filed by a women’s rights group known as ‘Vishaka’. along with four other
organizations to come together and filed a petition against this vicious gang rape, it laid
its focus on the enforcement of the fundamental rights of women at the Workplace under
the provisions of Article 14, 15, 19, and 21 of the Constitution of India, it also raised the
issue of the need for protection of women from sexual harassment at Workplace.

ISSUES

 Whether sexual harassment at the Workplace amounts to a violation of Rights of Gender

Inequality and Right to Life and Liberty?
 What is the role and responsibility of employer in sexual harassment cases?

JUDGMENT

DECISION GIVING CERTAIN GUIDELINES:

The court laid down various guidelines known as “Vishaka Guidelines” which were to
ensure the protection of women from any kind of sexual misconduct at the workplace:

Preventive Steps:

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

1. Express prohibition of sexual harassment as defined above at the workplace should

be notified, published, and circulated by appropriate methods.
2. The Rules/Regulations of Government and Public Sector bodies relating to conduct
and discipline should include rules/regulations prohibiting sexual harassment and
provide for penalties in such rules against the offender.
3. As regards private employers, steps should be taken to include the aforesaid
prohibitions in the standing orders under the Industrial Employment (Standing
Orders) Act, 1946.
4. Work conditions should be provided regarding work, leisure, health, and hygiene to
further ensure that there is no hostile environment towards women at the workplace
and no employee woman should have reasonable grounds to believe that she is
disadvantaged in connection with her employment.
8
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 under the 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 be able to seek the 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, the employer should initiate appropriate disciplinary action in accordance with
those rules.

Complaint Mechanism:

Whether such conduct constitutes an offence under law or a breach of the service rules, an
appropriate complaint mechanism should be created in the employer’s organization for
redress of the complaint made by the victim. Such a complaint mechanism should ensure
time-bound treatment of complaints.

Complaints Committee:

The complaint mechanism, referred to above, should be adequate to provide, where

necessary, a Complaints Committee, a special counselor, or other support services,
including the maintenance of confidentiality.

The Complaints Committee should be headed by a woman and not less than half of its
members should be women. Further, to prevent the possibility of any undue pressure or
influence from senior levels, such a Complaints Committee should involve a third party,
either an NGO or another body that is familiar with the issue of sexual harassment.

The Complaints Committee must report to the Government department concerned about the
complaints and action were taken by them.

The employers and person in charge will also report on the compliance with the aforesaid
guidelines including on the reports of the Complaints Committee to the Government
department.
9
Worker’s Initiative:

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

Awareness:

Awareness of the rights of female employees should be created in particular by prominently

notifying the guidelines (and legislation when enacted on the subject) in a suitable manner.

Third-Party Harassment:

Where sexual harassment occurs because 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.

CRITICAL ANALYSIS

In the case of Vishakha & others v/s the state of Rajasthan , the Supreme Court
specifically underlined the definition of Sexual Harassment, which conveys any
unwanted or uninvited physical touch or conduct or showing of pornography or any
definable sexual comments or texts will come under the ambit of Sexual Harassment. In
India, 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 sex.
According to me any such conduct done directly or indirectly both hampers the right of
women to life and it also affects their dignity to live. It also hinders the mental and
physical health of women as “while a murderer destroys the physical frame of the
victim, on the other hand the rapist defiles the soul of a helpless female”. Sexual
harassment shall be avoided and the equality between the genders shall be established at
workplace.

The Supreme Court held out guidelines that, the person-in-charge of the particular
institution, organization or office whether be it private or public, will be responsible in
taking effective steps to prevent sexual harassment. Penalties shall be charged from the
accused people for conducting sexual harassment. It had become a very crucial topic to
act upon for the prevention of sexual harassment of women at workplace. In case of
10
private companies, the strict rules regarding the punishment of sexual harassment shall be
included. In case the sexual harassment is conducted by the outsiders, the person-in
charge of that institution must take strict action for the conduct of such crime. And when
these strict rules and regulations are fully established, only then can it be seen as a
significant legal victory for women’s groups in India. Moreover, new measures and
innovative steps should be adopted at workplaces by the employer in order to safeguard
the women employees from such harassments by opting to provide reasonable work
hours (such as avoiding late working hours for women employees) and establishing
CCTV cameras at the workplace in order to keep an eye over the working environment
and also as a proof in case where evidences are required to provide justice.
However, the employer can also ensure to provide transportation facilities for their
women employees as a preventive step not only in the premises of the workplace but also
outside the premises as an additional advantage or service for its women employees.

CONCLUSION

Sexual Harassment of women at workplace happens at a very frequent rate in India. If

any strict action will not be taken towards this crime, it will directly hamper the working
ratio of the women in India and on other hand it will hamper the economic situation of
India. Government should make strict laws regarding the aversion of sexual harassment
11
at workplace, because it should realize that, women also constitute to the working
population of our country. It should be abolished to prevent the dignity and the respect of
women. However, the institutions/organizations should also take strict actions against the
employees who commit such humiliating and illegal acts of crime that result in disrespect
of women. Such employees should be immediately terminated and police reports or any
such legal step should also be taken on part of the employer for such Various new
approaches and skills shall be implemented by the institutions, organizations to prevent
their women employees from such a social evil. The main objective behind the
stabilization of this right is to promote gender equality at workplace without any kind of
discrimination and discernment among the workers of an organization.

12