Vishakha and others v/s state of Rajasthan

Background
It all started when Banwari Devi, a social worker in a program to stop child marriages,
stopped a child marriage that was taking place in an influential Gujjar family. The victim was
good at her job despite protests against her, but the Gujjars were taking revenge. One
Ramakant Gujjar along with five of his men brutally gang-raped her in front of her husband.
Her attempt to file a police case was met with apathy for a long time and once she succeeded
in doing so, she faced further stigma and cruelty. The trial court acquitted the accused citing
lack of evidence. Still, Banwari Devi, along with a sympathizer, approached the Supreme
Court through a writ petition, eventually leading to a critical judgment. The Vishakha case
began with the gang rape of a social worker in the village of Vishakha in Rajasthan, India, in
1992. The survivors of the assault, along with women's rights activists, filed a Public Interest
Litigation. In the Supreme Court seeking justice and protection against sexual harassment in
the workplace. The case resulted in the landmark Vishakha guidelines, which were named
after the village where the incident occurred. The Vishakha guidelines established a
framework for preventing and redressing sexual harassment in the workplace. They outlined
the obligations of employers and institutions to create a safe working environment and laid
down procedures for dealing with complaints of sexual harassment. The guidelines
emphasized the need for employers to take proactive measures to prevent harassment,
including the creation of internal complaints committees.
Facts of the guidelines case
The Vishakha guidelines case emerged from the 1992 gang rape of social worker Bhanwari
Devi in the village of Vishakha, Rajasthan. In response to this incident and recognizing the
absence of specific legislation addressing workplace sexual harassment, survivors and
women's rights activists filed a Public Interest Litigation, in the Supreme Court of India. In a
landmark 1997 judgment, the Supreme Court formulated the Vishakha guidelines, outlining
employer responsibilities to prevent and address sexual harassment in the workplace. The
guidelines mandated the establishment of Internal Complaints Committees within
organizations, stressing the importance of a safe working environment and delineating
procedures for filing complaints and conducting investigations. The Vishakha guidelines
became a pioneering framework for addressing workplace sexual harassment in India,
influencing subsequent legislation, and fostering awareness about the need to create secure
environments for working women.
Issues raised
1. Whether sexual harassment at the Workplace amount to a violation of the Rights of
Gender Inequality and the Right to Life and Liberty?
2. Whether the court could apply international laws in the absence of applicable
measures under the existing?
3. Whether the employer have any responsibility when sexual harassment is done to/by
its employees?
Petitioners’ argument
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 the
Workplace violate the fundamental rights enshrined under Articles 14, 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 in the Workplace.
Respondent's argument
The learned Solicitor General appearing on behalf of the respondents (with their consent) in
this case did something unusual and 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 assisted the Hon’ble
court in dealing with the said case.
Judgement of the case
In the landmark judgment, the Supreme Court of India addressed the heinous gang rape of
social worker Bhanwari Devi and the broader issue of sexual harassment in the workplace.
Acknowledging the absence of specific legislation on workplace harassment, the Court
formulated the Vishakha guidelines. The judgment recognized that incidents of sexual
harassment violate fundamental rights, including the right to equality and the right to life and
personal liberty. It underscored the responsibility of employers to create a safe working
environment and mandated the establishment of Internal Complaints Committees (ICCs)
within organizations. The judgment emphasized the need for preventive measures and
accessible mechanisms for redressal, filling a legal vacuum. The Vishakha guidelines laid the
foundation for subsequent legislation, shaping India's approach to addressing and preventing
sexual harassment in the workplace.
The guidelines of the Vishakha case
EMPLOYER’S OR OTHER EQUIVALENT AUTHORITY’S DUTY– Employer or other
responsible persons are bound to preclude such indecent incidents of sexual harassment from
happening. In case such an act takes place, then the organization must consist of a mechanism
to provide prosecutorial and conciliatory remedies. DEFINITION – For this purpose “Sexual
Harassment” means disagreeable sexually determined behavior direct or indirect as-
1. Physical contact and advances.
2. A demand or request for sexual favors.
3. Sexually coloured remarks.
4. Showing pornography.
 5. Any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature.
MEASURES FOR PREVENTION– Employers or persons in charge of the workplace must
take preventive measures such as an express prohibition of sexual harassment in the form of
notifications or circulars, penalties by the government against the offender, appropriate work
conditions in respect of hygiene, health, and leisure.

1. PROCEEDINGS IN CASE OF MISCONDUCT– If the offenses committed are the

ones that fall under the purview of the Indian Penal Code, 1860, then the employer is
bound to take prosecutorial action by complaining to the appropriate authority.
2. APPROPRIATE DISCIPLINARY ACTION– If there is an occurrence of a violation
of service rules, appropriate disciplinary action must be taken.
3. REDRESSAL MECHANISM– An organization must have a redressal mechanism to
address the complaints. This must be irrespective of the fact that whether the act
constitutes an offense under the Indian Penal Code, 1860, or any other law as such.
4. REDRESSAL COMMITTEE– Such a redressal mechanism or more precisely such a
complaint committee must have women as more than half of its members and its head
must be a woman. The committee must comprise a counselling facility. It is also
acceptable to collaborate with NGOs or any such organizations which are well aware
of such issues. A report must be sent to the government annually on the development
of the issues being dealt by the committee.
5. SPREADING AWARENESS– To raise sexual harassment issues, employer-employee
meetings must be held. The employer must take appropriate actions/measures to
spread awareness on the said issue.
Critical analysis
The Vishakha guidelines case is laudable for catalysing a crucial discourse on workplace
sexual harassment in India. Recognizing the legal void, the Supreme Court's formulation of
the Vishakha guidelines marked a pivotal step toward addressing this pervasive issue. The
guidelines emphasized employer responsibility, introduced Internal Complaints Committees,
and underscored the urgency of preventive measures. However, the lack of statutory authority
meant that compliance was not mandatory until the enactment of the Sexual Harassment of
Women at Workplace Act in 2013. While the guidelines addressed formal workplaces, their
efficacy depended on the commitment of employers and the effectiveness of ICCs.
Challenges in implementation, including awareness gaps and potential biases, have been
evident. Despite these limitations, the Vishakha guidelines initiated a paradigm shift, laying
the foundation for subsequent legislation and fostering heightened awareness of the need for
safe workplaces. Ongoing efforts are crucial to address the evolving dynamics of workplace
harassment comprehensively.
References
https://main.sci.gov.in/jonew/judis/13856.pdf
https://www.legalserviceindia.com/legal/article-374-case-analysis-vishaka-and-others-v-s-
state-of-rajasthan.html
https://ccs.in/sites/default/files/2022-10/Vishakha%20Guidelines%20A%20Study%20of
%20universities%20in%20Kerala.p