English P.S.D.

A
TOPIC:

Vishaka and Ors. v State of Rajasthan

Parth Chugh
22017703823
INTRODUCTION:

Vishaka & Ors. v State of Rajasthan is a milestone judgement given by

the honourable Supreme Court of India that deals with aspects of
sexual harassment of women in the workplace. The supreme court
formulated the very famous Vishaka guidelines and made it
mandatory for both private and public sector to establish
mechanisms to redress sexual harassment complaints.
Citation: (1997) 6 SCC 241
Court: Supreme Court Of India
Bench: Chief Justice J.S. Verma, Justice Sujata V. Manohar And
Justice B.N. Kirpal.

FACTS OF THE CASE:

Bhanwari Devi who was a social activist/worker in one of the Rajasthan’s village.
She worked under a social development program at rural level which was about
to stop child marriage in a village and this social program was administered/
initiated by the Rajasthan’s state government.
Bhanwari Devi en-devoured to stop the marriage of the Ramkaran Gujjars
(thakurs) daughter, who was merely less than one year old i.e. she was an infant
only.
As a part of her duty, Bhanwari Devi tried to terminate the marriage of her infant
daughter.
Even of her vain-full efforts to stop the marriage, it happened, but Bhanwari
devi was not excused or pardoned for her’s this fault.
She was exposed to or put forward to social punishment or boycott.
September 1992, she was been gang raped by Ramkaran Gujjar and his five
friends in front of her husband.
The male doctor at normal primary health center declined to survey her and the
doctor at Jaipur only made confirmation of her age without any
recommendation of her being raped in her medical report.
At police station too she was been continually taunted by the women countable
for the whole of the midnight.
In past midnight she was been asked by the policeman to leave her lehnga as
the evidence of that incident and go back to her village.
After that, she was only left with the bloodstained dhoti of her husband to wrap
her body, as a result of which they had to spend there whole night in that police
station.
The Trail Court made the discharge of the accused people for not being guilty.
The High Court in his judgement propounded that –“ it was a case of gang rape
which was conducted out of revengeful situation.
All these statement and judgement, aroused women and NGO’S to file pitition
(PIL) in Supreme Court of India.

Issues:
Following are the issues of the case: Determining if sexual harassment at work
constitutes a breach of rights protected by Articles 14,15,19 and 21 of the Indian
Constitution. If there are no current laws that apply to the case, might the case
nevertheless apply international laws? Is there any liability of sexual harassment
committed against or by employees of the employer?

Contentions by the Petitioner:

Although the judgement does not provide separate arguments made by both
parties, some arguments were to consider while delivering the judgement:
The writ petition filed by Vishaka put forth the argument that sexual harassment
at workplaces at common, and the employer often gets away with it in the
absence of adequate legislation. Such acts violate the fundamental rights of the woman
enshrined under Articles 14, 15, 19(1)(g) and 21 of the Constitution of India.

A request was made at the Hon’ble Court to frame guidelines for preventing sexual
harassment in the workplace.
Contentions by the Respondents:
It is astonishing to note that the Solicitor General appearing on behalf of the
respondents, supported the petitioners. The respondent assisted the Hon’ble
court in sorting out an effective method to curb sexual harassment and
formulate guidelines to prevent it. Fali S. Nariman, the amicus curiae, Ms. Naina
Kapur and Ms. Meenakshi, provided valuable assistance to the court.

Judgement:

The Hon’ble Supreme Court of India observed that there was then no legislation
in place to protect women from sexual harassment and to ensure a secure work
environment. In any case of sexual harassment, Sections 354 and 354A of the
Indian Penal Code,1860 were to be consulted; however, the clauses in question
were not covered by these sections. This helped the Hon’ble court to
understand the need for proper and effective laws that would deal with sexual
harassment. The Hon’ble court made reference from the international treaties
to proceed with the matter. In order to serve as a protector of citizens’ rights
and independently enact laws in the lack of any, it made reference to the Beijing
Statement of Principles on the Independence of the Judiciary in the Lawasia
region. The articles of the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) were then cited by the Hon’ble court.
Them being: The state must take all necessary steps to end discrimination
against women in the workplace, according to Article 11(1)(a) and Article 11(1)(f).
According to Article 24, the state is required to take all the necessary national
level actions to bring about the complete fulfillment. The Supreme Court’s
primary goal was to ensure that there was no discrimination against women in
the workplace and that there was gender equality among all persons. Following
this case, the Supreme Court clarified the definition of sexual harassment,
making it clear that it includes: • Any physical contact or behavior • Display of
pornography • Any offensive remarks or misbehavior • Any sexually motivated
behavior towards women The Vishaka Guidelines, which were to be treated as
law as declared under Article 141 of the Indian Constitution, were established
by the Hon’ble Supreme Court of India to prevent sexual harassment at the
workplace. The Sexual Harassment of Women at Workplace (Prevention,
Prohibition, and Redressal) Act of 2013 was also built on the principles of these
guidelines.
Vishaka Guidelines:
• In 1997, as part of the Vishaka ruling, the Supreme Court published comprehensive
guidelines on how to stop sexual harassment of women at work.

• Every company is accountable for creating a secure workplace where each and every
employee can advance and thrive. This means taking the required measures to safeguard the
interests of female workers and make sure that sexual harassment is not occurring.

• If a female employee is the victim of sexual harassment or other improper treatment, the
employer is required to take appropriate disciplinary action. The rule states that an employer
must make a complaint if their actions towards an employee constitute a crime punishable by
the Indian Penal Code.

• The employer is required to take precautions to safeguard the witnesses and make sure they
are not mistreated in the future.

• Workplaces should have a strict process in place to guarantee that complaints are handled
quickly and effectively.

• The suggestions state that in order to ensure that employee complaints are handled
properly, and the proper cause of action is taken in response to them, each organization must
set up a complaint redressal committee.

• To prevent pressure from the employer’s upper management, a third party should be
involved, such as an NGO.

• This will guarantee that sexually harassed women get the funding support from their
employer’s when they need to file a lawsuit and hire qualified attorneys to represent them.

• Additionally, it is the employer’s duty to promote awareness of sexual harassment and the
protection of women at work. This can be done by alerting staff beforehand, hosting
workshops, and coming up with other fun ways to enlighten female employees of their rights.

Later, the Vishaka guidelines were replaced by the Sexual Harassment of Women at Work
(Prevention, Prohibition, and Redressal) Act,2013.

CASE ANALYSIS
So starting with the case analysis :
By this landmark judgement supreme court examined deeply rooted gender
imbalance which itself existed in the form of violence against women in form of
sexual harassment at workplace .
Sexual harassment at workplace causes depravity in the minds of victims .
Sexual harassment at workplace is a serious problem which breaches our
fundamental rights under article 14, 15, 19 and article 21.it also left a deep
impression on indian society as it laid down the guidelines for protection of
women at workplaces .some of the guidelines are as follows:
1 – employers must setup a complaint committee to deal with complaints of
several harassment in a time bound manner.
2 – head of the complaint committee should be a women and half of its member
must be woman
3 – a third party such as NGO should be involved to avoid any pressure from
higher management at work.
It gave a legal framework to address sexual harassment and provided women
with a tool to fight against it.
These guidelines formed the basis for the formation of Sexual Harassment Of
Women At Workplace(Prevention,Prohibition and Redressal) Act , 2013
commonly known as POSH Act Prevention of sexual harassment act.
The case strived to create a safe and harassment free workplace for women.it
acknowledged that women’s participation in workplace is essential for the
development and growth of the nation.
It empowered woman to speak up against sexual harassment and seek redressal
for their grievances by providing them a safe environment to speak up.
It also helps to create awareness about the issue of sexual harassment at
workplace. the vishakha case changed the outlook towards sexual harassment
cases as serious issue,unlike the past when such cases were ooked upon as
petty.
SO NOW I WOULD LIKE TO ADDRESS THE LOOPHOLES OR RESEARCH
QUESTIONS ARISING OUT OF THIS CASE which are as follows:
Deficiency in constitution of Internal Committees by establishment ,
emphasizing the need for proper establishment and function. In an newspaper
report 16 out of 30 national sports federation in our country had yet to
establish internal committees . This revelation emerged amid protests by
wrestlers in Delhi against the head of the Wrestling Federation of India (WFI), Brij
Bhushan Sharan Singh, for alleged acts of sexual harassment. The judgment
further underscored concerns about improperly constituted ICs, pointing out
instances where committees either had an insufficient number of members or
lacked a mandatory external member.
The power dynamics within organizations and fears of professional
repercussions further deter women from filing complaints which breaches their
fundamental rights.it is also due to limited awareness and hence there should
be more effective redressal mechanisms .
Under this act the limitation period for filing a complaint with the internal
committee is 3 months from the date of incident which so inappropriate and the
delay could have been occurred due to various probable reasons and the delay
in filing complaint does not mean that the incident never took place.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and
Redressal) Act, 2013 (POSH Act) is a commendable step towards safeguarding
women in professional settings. However, its lack of gender neutrality which is a
critical concern. While there are gender-neutral clauses, there's a need for a
more comprehensive approach. The POSH Act's journey from the Vishakha
Guidelines to its current form signifies progress, yet it leaves out men,
transgender individuals, and non-binary people who can experience workplace
harassment. The Act needs to be re-evaluated to address the diverse
experiences of harassment. The Act should include individuals irrespective of
gender and include the definition of "aggrieved person" instead of women.
Amendments should be brought in place to safeguard individuals against
harassment at workplace not only from the opposite gender but also from the
same gender.