CASE STUDY ON VISHAKA AND ORS. V.

STATE OF

RAJASTHAN

(Case Study towards the fulfillment of assessment in the subject of Legal Methods

& Legal systems)

Submitted by: Submitted to:

Jayesh Kumar Singh Ms. Nidhi Gupta

Roll No.-1505 Faculty of Law

Himanshu Rajpurohit

Roll No.- 1504

NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SESSION (JULY- NOVEMBER 2017)

 ACKNOWLEDGEMENT

It gives me immense pleasure to express my gratitude to all who supported and helped me in

completing this project. I extend my heartfelt gratitude to Mrs. Nidhi Gupta for being the guiding

light and a source of inspiration throughout the course of this project. I also thank her for allowing

me to work on such an insightful case.

I would also like to thank all the library and support staff for helping me in procuring the materials

required to complete this project. Lastly I would like to thank the almighty under whose benevolent

presence this project could be completed.

JAYESH KUMAR SINGH

HIMANSHU RAJPUROHIT

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 TABLE OF CONTENTS

SYNOPSIS ...................................................................................................................................... 4

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

IMPORTANCE OF THE CASE FOR LEGAL EDUCATION ..................................................... 6

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

LEGAL ISSUES INVOLVED ....................................................................................................... 8

CONTENTIONS OF THE PARTIES ............................................................................................ 9

DECISION OF THE COURT ...................................................................................................... 10

MAIN REASONS FOR REACHING THE DECISION .............................................................. 13

CONCLUSION ............................................................................................................................. 15

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 SYNOPSIS
The case of Vishaka v State of Rajasthan is a landmark judgement in the sense that it paved the

way for Sexual Harassment guidelines and accepted International Conventions and norms in the

absence of a specific legislation. The case analysis vividly brings out the essence of this case. To

provide a clear picture of the case, the case has been divided into six main heads.

The aforesaid topics include: 1. “Importance of the case for Legal Education” which throws light

on the relevance of this case, 2. “Facts of the case” which briefly summarizes the pertinent facts

of the case, 3. “Contentions of the parties”, 4. “Legal Issues involved”, 5. “Judgement of the Court”

and lastly “The main reasons which led to this judgement”. The split of topics has been done wisely

and with utmost precision to bring out the intricacies involved in this case.

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 INTRODUCTION

Vishaka’s case of Sexual Harassment at workplace is a case of landmark judgement by Supreme

Court of India. It is a landmark case because for the first time ever, it was officially recognized at

such a high level of need for laws for sexual harassment and laying down of guidelines of sexual

harassment of working woman. The Supreme Court in the case of Vishaka v. the State of Rajasthan

laid down for the first time strictures that aimed at protecting a woman employee by giving her

right to a safe/healthy working environment. In the decision, the Court also defined sexual

harassment and recognized it to be a paramount violation of human rights. The court thereby laid

down certain mandatory and binding guidelines to be followed by all workplaces, belonging to the

public and private sectors and made it imperative for every employer to ensure a safe, harassment

free working environment for the women. These strictures can be applied to educational

institutions as well. These strictures were based on conventions of which our country is a signatory

and human right which are inalienable for any human being.

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 IMPORTANCE OF THE CASE FOR LEGAL EDUCATION

If we go by the definition of legal education “Legal education is a human science which furnishes

beyond techniques, skills and competences the basic philosophies, ideologies, critiques, and

instrumentalities all addressed to the creation and maintenance of a just society”. A just society in

a layman’s language would be the society in which everyone is treated in a fair manner and no

discrimination is done on the basis of religion, race, caste, sex, place of birth, economic standard

etc.

Law schools’ function is not only to manufacture every year thousands of legal brains which will

be used to make money either for themselves or for the firms whom they would be working with

but to help a great extent in creation of just society. Law students in future will turn into lawyers

those who will educate the masses about what is wrong, what is right, what are their duties, what

is state’s duties, what constitutes crime and enlighten their minds in toto.

In this case for the first time a comprehensive definition was given as to what constitutes sexual

harassment at workplace and certain guidelines were issued for the rights of working women at

workplace and same can be claimed. If we don’t include this case in legal education, there will be

an ambiguity as to what kind of acts constitute sexual harassment at workplace and what are the

rights of working women at workplace. In a country like India some women are subjected to sexual

harassment but they also don’t know that they are victims of the same as illiteracy remains a major

problem, women are still not aware of their rights and are not treated at par with man and unless

they don’t know their rights it is and will be a very grim situation for them. Law students can help

in creating awareness about the same by enlightening the minds of woman around them and can

help in creation as well as maintenance of a just society

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 FACTS OF THE CASE
Bhanwari Devi was a social worker (Saathin) at rural level in a development programme initiated

by State Government of Rajasthan, aiming to curb the evil of child marriages in villages. As part

of her work, Bhanwari Devi, tried to stop Ramkaran Gujjar’s infant daughter’s marriage.

Nevertheless, marriage took place but Bhanwari Devi was not forgiven for her efforts to stop

marriage. She was subjected to social boycott, and in September 1992 was gang raped by five men

including Ramkaran Gujjar in front of her husband. The only male doctor in the Primary Health

Centre refused to examine Bhanwari and the doctor at Jaipur only confirmed her age without

making any reference to rape in his medical report. At the police station too, the women constables

taunted her throughout the night. It was past midnight when the policemen asked Bhanwari to

leave her lehenga behind as evidence and return to her village. She was left with only her husband’s

bloodstained dhoti to wear. Their pleas to let them sleep in the police station at night, were turned

down.

The trial court acquitted the accused, but Bhanwari was determined to fight further and get justice.

She said that she had nothing to be ashamed of and that the men should be ashamed due to what

they had done. Her fighting spirit inspired fellow saathins and women’s groups countrywide. In

the months that followed they launched a concerted campaign for justice for Bhanwari. On

December 1993, the High Court said, “It is a case of gang-rape which was committed out of

vengeance”. This provoked women’s groups and NGOs to file a petition in the Supreme Court of

India. As part of this campaign, the groups had filed a petition in the Supreme Court of India, under

the name ‘Vishaka’, asking the court to give certain directions regarding the sexual harassment

that women face at the workplace. The result is the Supreme Court judgement, which came on

13th August 1997, and gave the Vishaka guidelines.

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 LEGAL ISSUES INVOLVED

The case involved multiple legal issues. In the absence of a detailed law regarding Sexual

Harassment of Women at Workplace, a lot of emphasis and deliberation was assigned to the legal

issues involved on this case. Those legal issues are as follows:

1. What were the existing laws that spoke about the status of women at the workplace?

2. Is a special enactment really needed to prevent Sexual Harassment of Women at the

Workplace?

3. Can International Conventions and norms be used to provide justice in the absence of a

specific legislation in a particular area of law?

There was no particular law made in this regard ever before. Although the Government had entered

into certain treaties and conventions which called for making such a law, but the requirement had

never been fulfilled. A special enactment was definitely required to do away with the increasing

rates of crimes against women at the workplace. The afore-mentioned legal issues were addressed

by the court in the most elaborate and clear manner. It relied on International agreements and made

provisions after considering them.

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 CONTENTIONS OF THE PARTIES
A writ petition under Article 32 of the Indian Constitution was filed before the Supreme Court.

The major contentious issues between the parties included the following:

1. Whether Sexual Harassment is a violation of Fundamental Rights of Article 14, 15,

19(1) (g), Article 21 of the Constitution?

2. To provide safeguards against the hazards to which a working women may be exposed

to.

3. Whether International Conventions and norms could be applied to fulfill this urgent

social need in the absence of any appropriate legislation?

The case was filed by a Women’s Action Group under the name of “Vishaka”. They wanted

enactment of a specific law with regards to Sexual Harassment of women at workplace. The

Supreme Court accepted the petition and under the able advice of the counsel Mr. Soli Sorabjee

formulated the Vishaka Guidelines. There was no contention on the part of Supreme Court as it

was clear case of a void in legislations. The group specifically wanted the court to frame guidelines

related to Sexual Harassment of Women at workplace. The aim of the Supreme Court was to find

a suitable method for realization of the true concept of “gender equality”, and to prevent sexual

harassment of working women at all workplaces through judicial legislation, and lastly to fill in

the vacuum in the existing legislation.

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 DECISION OF THE COURT
The court held that there was a clear violation of Articles 14, 15, 19(1) (g) and 21. It also focused

on issues regarding gender equality, asserting that gender equality includes protection from sexual

harassment and the right to work with dignity. In the absence of specific legislations in this regard,

international conventions and norms have to be considered. Those international conventions not

inconsistent with Fundamental Rights and in harmony with its spirit must be read into these

provisions to enlarge the meaning and content thereof. It was decided by the court that the

obligation of Supreme Court under Article 32 for the enforcement of Fundamental Rights in the

absence of legislation must be viewed along with the role of judiciary envisaged in Beijing

Statement of Principles of the Independence of Judiciary in LAWASIA Region.

The court laid down the following guideline termed under the name of Vishaka Guidelines:

1. Duty of employer and other responsible persons in workplaces and other institutions:

People at the workplaces have a duty to be discharged towards their counterparts and fellow

workers. They must prevent or deter the acts of sexual harassment and provide the

procedure for resolution, settlement or prosecution of the acts of sexual harassment by

taking all the steps required.

2. Definition: Sexual Harassment includes

 Physical contact and advances.

 A demand or request for sexual favors

 Sexually colored remarks.

 Showing pornography.

 Any other unbecoming physical, verbal or non-verbal conduct of sexual nature.

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3. Preventive Steps:

 Express prohibition of sexual harassment through notification, publication and

circulation in appropriate ways.

 Rules/regulations of government and public sector should include rules/regulations

prohibiting sexual harassment and provide for appropriate penalties.

 The employers must include aforesaid rules in Industrial Employment (Standing

Orders) Act, 1946.

 Appropriate conditions with respect to work, leisure and hygiene to further ensure

that there is no hostile environment.

4. Criminal Proceedings- If the conduct to any offence under the IPC/any law, the employer

shall take appropriate action.

5. Disciplinary Action: Actions must be taken with respect to relevant service rules followed

by the employer.

6. Complaint Mechanism: It should determine whether the conduct is an offence or not.

Appropriate complaint mechanism should be present for time-bound redressal.

7. Complaints Committee: It shall be headed by a woman, and not less than half of the others

should be women. The third party must be familiar with the issue of sexual abuse. There

shall also be a special counsellor, and confidentiality must be maintained.

8. Worker’s Initiative: The workers must be allowed to raise issues of sexual harassment in

worker’s meetings and affirmatively discuss them in employer-employee meetings.

9. Awareness of this right: The workers must be made aware of such rights. Guidelines must

be notified to the workers in case of any change in them.

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 10. Third Party Harassment: The employer and the person in charge should provide support

and preventive actions must be taken by them.

11. Central/State Government: They must make legislations with regard to sexual

harassment, so that the guidelines contained herein must be followed in private sector as

well.

12. The aforesaid guidelines will not prejudice any rights available under the Protection of

Human Rights Act, 1993.

The court ruled that these guidelines will remain in force unless a specific legislation is made.

They must be strictly observed at all workplaces.

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 MAIN REASONS FOR REACHING THE DECISION
Prominent reasons for reaching the decision:

 Violation of Articles 14, 15, 19(1) (g), and 21 of the Constitution.

 Absence of an enacted law for Sexual Harassment of Women at workplaces.

 Due considerations to Article 42, 51A 51and 253 of the Constitution.

 Beijing Statement of Principles of the Independence of Judiciary in LAWASIA Region.

 CEDAW Regulations.

 4th World Conference on Women in Beijing.

The main reason of the Supreme Court in reaching the judgement or formulation of guidelines was

the absence of an enacted law to provide for the enforcement of basic human rights of gender

equality and guarantee against sexual harassment and abuse, more particularly against sexual

harassment at workplaces. The case was also a violation of Fundamental Rights (Articles 14, 15,

19, 21). The judges also considered other articles from the constitution of India. Article 42 of the

constitution provides for just and humane conditions of work and maternity relief, while Article

15 includes prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.

Judges also considered international treaties and conventions. The Articles in the constitution

which gave effect to such considerations are Article 253 and Article 51. Article 253 talks about

legislations for giving effect to international agreements. The enabling power of Parliament to

make laws for implementing International Conventions and norms is by virtue of Article 253 read

with Entry 14 of the Union List.1

1
M.P. JAIN, INDIAN CONSTITTIONAL LAW, 1365 (7 th ed. 2014).

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A very pertinent reason in reaching the decision was the role of judiciary envisaged in Beijing

Statement of Principles of the Independence of Judiciary in LAWASIA Region. This statement

talked about the Objectives of Judiciary which the court wanted to hold high through its judgement.

Another prominent reason is the norms laid down in “Convention on the Elimination of all forms

of Discrimination against Women (CEDAW)”. This convention had been ratified by the

Government of India, except with some reservations. The main Articles of this conventions

relevant in the present case were Articles 11 and 24. It pointed out that equality in employment

can be seriously impaired when women are subjected to gender specific violence, such as sexual

harassment at workplaces. According to the Supreme Court: “It is now an accepted rule of judicial

Construction that regard must be given to international conventions and norms for constructing

domestic law when there is no inconsistency between them and there is void in the domestic law.”2

The judgement given by the judge also discussed certain commitments by India in the 4th World

Conference on Women in Beijing. India officially committed to formulate and operationalize a

national policy on women which will continuously guide and inform action at every level and

sector. The strategy adopted by the Supreme Court with a view to expand the ambit of Article 21,

and to imply certain rights therefrom, has been to interpret Art. 21 along with international charters

on Human Rights.3 India is a signatory to International Covenant on Civil and Political Rights,

1966 and Universal Declaration on Human Rights. Both these agreements have been signed by

India and they do not go in contrary to the Indian Municipal Law. This kind of judicial approach

has been seen in a number of cases.4

2
L.I.C. of India v Consumer Education and Research Centre, AIR 1995 SC 1811, 1818 : (1995) 5 SCC 482.
3
M.P. JAIN, INDIAN CONSTITTIONAL LAW, 1167 (7 th ed. 2014).
4
D.K. Basu v State of West Bengal, AIR 1997 SC 610 : (1997) 1 SCC 416.

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 CONCLUSION
The decision of the Supreme Court in this landmark case had a vast impact on the Indian Judiciary

and upcoming laws in this regard. Use of International Covenants strong-footed India in the

International arena. The guidelines provided a complete solution to the problem of Sexual

Harassment of women at the workplace. The definition laid out in the guidelines also made women

aware of their rights and under the discussed laws. In a huge country like India, Sexual Harassment

had been increasing at a rampant rate. Moreover, the victims of such abuse were not even aware

that they were being sexually harassed.

The judgement was comprehensive in nature, although it had certain loopholes which must have

been taken care of. The judgement did lay much emphasis on implementation of such guidelines

at the national level. A commission should have been formed to ensure proper implementation of

the guidelines. If at all a commission already existed, reference should have been specifically made

to it for supervision of such guidelines. The most pertinent factor in the judgement was that it was

gender neutral. It treated both the sexes impartially and fairly. However, the subsequent acts related

to this matter have not been successful in achieving gender neutrality. The judgement not only

provided justice to women but also upheld the sanctity of the Fundamental Rights enshrined in the

Indian Constitution.

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