Vishaka & others vs.

State of Rajasthan

INDEX

Sr. No. Particulars

1 Introduction
2 Quick insights on the case
3 Facts of the case
4 Issues raised in the case
5 Petitioners arguments
6 Respondent’s arguments
7 Judgment of the case
8 The Vishaka guidelines (1997)
9 Critical analysis
10 Conclusion
11 References
Vishaka & others vs. State of Rajasthan

Vishaka & Ors. V/S State of Rajasthan (Air 1997 Sc 3011) - Sexual
Harassment Landmark Case
Bench Of Judges: CJI, Sujata V. Manohar, B. N. Kirpal

Introduction:

Vishaka & ors. v/s state of Rajasthan is a case which deals with the evil of Sexual
Harassment of a women at her workplace. It is a landmark judgment case in the history of
sexual harassment which as being decide by Supreme Court. Sexual Harassment means an
uninvited/unwelcome sexual favor or sexual gestures from one gender towards the other
gender. It makes the person feel humiliated, offended and insulted to whom it is been done.
In many of the cases, it has been observed that homosexual labor harass an employee
belonging to the same sex to which he belongs.

Sexual harassment is also termed as “Eve Teasing” in India, and 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. Accordingly, Sexual Harassment violates the fundamental right of the
women of gender equality which is codified under Article 14 of Indian Constitution and also
the fundamental right to life and to live a dignified life is violated/infringed under Article 21
of constitution of India. Even though there has been no provision for sexual harassment at
workplace under Indian Constitution.

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”.

Sexual harassment is one of the social evils faced by the fragile portion of the society. Now at
this point of time the high society people or the people who commit sexual harassment should
become aware about the vital needs or rights of women or either when this tranquil volcano
of anger will erupt will cause immense danger and shattering which would have equal
consequences which is caused from the burst or eruption of an inactive volcano.
Vishaka & others vs. State of Rajasthan

Quick insights on the case:

NAME OF THE CASE - VISHAKA & ORS. V STATE OF RAJASTHAN &

ORS.

CITATION OF THE CASE -(1997) 6 SCC 241

NAME OF THE COURT - HON’BLE SUPREME COURT OF INDIA

PETITIONERS IN THE CASE - VISHAKA AND ORS.

RESPONDENTS IN THE CASE - THE STATE OF RAJASTHAN AND

ORS.

HON’BLE BENCH - Chief Justice J.S. Verma, Justice Sujata V. Manohar and
Justice B.N. Kirpal.

JUDGMENT PASSED ON - 13TH AUGUST 1997

Vishaka & others vs. State of Rajasthan

Facts of the case:

Bhanwari Devi, a woman belonging from Bhateri, Rajasthan started working under the
Women’s Development Project (WDP) run by the Government of Rajasthan, in the year
1985. She was employed as a ‘Saathin’ which means ‘friend’ in Hindi.
In the year 1987, as a part of her job, Bhanwari took up an issue of attempted rape of a
woman who hailed from a neighbouring village. For this act, she gained full support from the
members of her village. In the year 1992, Bhanwari took up another issue based on the
government’s campaign against child marriage. This campaign was subjected to disapproval
and ignorance by all the members of the village, even though they were aware of the fact that
child marriage is illegal.
In the meantime, the family of Ram Karan Gurjar had made arrangements to perform such a
marriage, of his infant daughter. Bhanwari, abiding by the work assigned to her, tried to
persuade the family to not perform the marriage but all her attempts resulted in being futile.
The family decided to go ahead with the marriage.
On 5th May 1992, the sub-divisional officer (SDO) 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. Bhanwari also lost her job amid this boycott.

On 22nd September 1992, to seek vengeance, 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 had attacked Bhanwari Devi’s husband and later brutally gang-
raped her.
The police had tried all possible ways to avoid filing any complaint against the accused
which resulted in a delayed investigation. Even after facing so much criticism, Bhanwari
Devi, with her incessant determination to get justice, managed to lodge a complaint. The
medical examination was delayed for fifty-two hours. However, the examiner did not
mention any commission of rape in the report but rather mentioned the age of the victim.

In the absence of sufficient evidence and with the help of the local MLA Dhanraj Meena, all
the accused managed to get an acquittal in the Trial Court. But this acquittal resulted in a
huge backlash from many women activists and organizations which supported Bhanwari.
These organizations came together and raised their voice to attain justice, which resulted in
the filing of a Public Interest Litigation (PIL).

The PIL was filed by a women’s rights group known as ‘Vishaka’. It laid its focus on the
enforcement of the fundamental rights of women at the Workplace under the provisions of
Vishaka & others vs. State of Rajasthan

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 raised in the case:

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

Inequality and 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 has any responsibility when sexual harassment is done to/by its
employees?

Petitioners’ arguments:

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’s arguments:

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.
Vishaka & others vs. State of Rajasthan

Judgment of the case:

The lack of a law that would prevent sexual harassment and provide women with a safe
working environment was acknowledged by the Hon’ble Supreme Court of India. Section
354 and 354A of the Indian Penal Code, 1860 were to be referred in any case of sexual
harassment but these provisions were not specific to the issue at hand. This made the Hon’ble
court realize the need for proper and effective legislation that would deal with sexual
harassment.

The Hon’ble Court took reference from the international conventions to proceed with the
case. It referred to the Beijing Statement of Principles on the independence of Judiciary[3] in
the LAWASIA region, to function as a guardian of citizens’ rights and independently make
laws in the absence of any legislative framework. Then the Hon’ble court took reference from
the provisions of Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW)[4]. They were-

1. Article 11 (1) (a) & (f)- which states that the State takes all appropriate measures to
eliminate discrimination against women in the field of employment.

2. Article 24- which states that the State shall undertake to adopt all necessary measures at
the national level aimed at achieving the full realization.

The Hon’ble Supreme Court framed the guidelines to prevent sexual harassment at the
Workplace, known as Vishaka Guidelines, that were to be treated as law declared under
Article 141 of the Indian Constitution. These guidelines were the foundation for The Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
Vishaka & others vs. State of Rajasthan

The Vishaka guidelines (1997):

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.

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.

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.

Appropriate disciplinary action – If there is an occurrence of the violation of service

rules, appropriate disciplinary action must be taken.

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.

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 of a counseling facility. It is also acceptable to
collaborate with NGOs or any such organisations 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.

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.
Vishaka & others vs. State of Rajasthan

Critical analysis:

Through the Vishaka Case, the Hon’ble Supreme Court of India took a great step towards the
empowerment of women by issuing guidelines to curb sexual harassment at Workplace. The
Hon’ble court took reference from various international conventions and laws in the absence
of domestic law, then connected it to the law of the land and gave birth to a new law
altogether. The efforts put in by the Indian judiciary, in this particular case to safeguard
women is commendable. The Hon’ble Court through the Vishaka Guidelines provided a
strong legal-platform for all the women to fight against sexual harassment boldly. The
Vishaka case changed the outlook towards sexual harassment cases as serious issues, unlike
the past when such cases were looked upon as petty matters.

Like every coin has its two sides, based on the Vishaka case, one can figure out that though
India tried to overcome the social evils of gender inequality and sexual harassment by
providing employment and provisions of law, it did not succeed in taking social responsibility
for an equally safe working environment. Even after having the law on our side to safeguard
women, there are many incidents of sexual harassment taking place regularly which get
unreported.

As a small example, let us assume that a woman finally gets her dream job in a software
company. The woman is subjected to sexual harassment due to some reason. She wants to go
and lodge a complaint against the one who harassed her, but she chooses not to do it. She is
worried that if she complains, then she might not be able to continue working in the company
because her family members might stop her. Why? Cause the family fears that the woman has
been harassed once, so she might be harassed again. The concern of people even today is that
the female of their house must learn to adjust until she is in a “safe” environment according
to their parameters. Not that the person who harassed her must be punished for what he has
done and to see to it that he does not repeat it. Though there are remedies available with the
law, for women facing sexual harassment at Workplace, the “safety” is not assured even after
so many years.
Vishaka & others vs. State of Rajasthan

Conclusion:

The constitutional principles of equality and liberty have been upheld by the Hon’ble
Supreme Court of India in the Vishaka Judgement. The inception of the law against sexual
harassment has inspired many women to raise their voices against the suffering that they were
silently subjected to until the year 1997. Vishaka Guidelines formed the basis for the
establishment of The Sexual Harassment of Women at Workplace (Prevention, Prohibition
and Redressal) Act, 2013. The true spirit of Judicial Activism has been portrayed in the
Vishaka Judgement and it has been an inspiration to other nations. However, Bhanwari Devi,
the spark that ignited the need for appropriate legislation to safeguard women against sexual
harassment, even after two decades, is still awaiting justice to be served. It is paramount to
take note of the fact that, though such comprehensive laws have been enacted to safeguard
women in India, it still ranks as one of the most dangerous country for women. Maybe it is
time to question ourselves, is it the law or is it us that must be responsible?

References:

1. https://poll2018.trust.org/country/?id=india
2. (1997) 6 SCC 241
3. https://www.icj.org/wp-content/uploads/2014/10/Beijing-Statement.pdf
4. https://www.ohchr.org/en/professionalinterest/pages/
cedaw.aspx#:~:text=Introduction,twentieth%20country%20had%20ratified%20it.
5. http://www.nitc.ac.in/app/webroot/img/upload/546896605.pdf