LABOUR LAW-I

Vishaka and Others

v.
State of Rajasthan and Others
(1997)6 SCC 241

CASE ANALYSIS

Submitted to: Ms. Asha Varma

Associate Professor of Law
GNLU

Submitted by:
Pratiksha Agarwal(12B097)
Sherin Priyan (12B123)
V. Mrudula (12B154)
Sudeepta Rao(11B152)

TABLE OF CONTENTS

1. Introduction..................................................................................................................3
2. Vishaka and Ors. v State of Rajasthan and Ors.........................................4
Facts
Decision of the Supreme Court
3. Analysis of the Guidelines.......6
4. Developments post the Vishaka guidelines12
5. Conclusion....................................................................................................................16
6. List of Cases.................................................................................................................17
7. Bibliography.................................................................................................................17

I.

Introduction
Sexual Harassment at the Workplace (SHW) has been a concern since the time women began
stepping out of their kitchens especially in the early -'80s, when a few matters were beginning
to be brought out into the light. India ranks 132 out of the 148 countries polled in Gender
Inequality Index and 136 in HDI. [1-3] The Gender Inequality Index (GII) is a composite
measure which captures the loss of achievement, within a country, due to gender inequality,
and uses three dimensions to do so: reproductive health, empowerment, and labour market
participation. 1 The awareness of it, as a reality, which many people refused to acknowledge,
accompanied by the intention and impulse to put an end to it pushed the Forum Against
Oppression of Women (Mumbai) to lead a militant action against the sexual harassment of
nurses in public and private hospitals by patients and their male relatives, ward-boys and
other hospital staff; of air-hostesses by their colleagues and passengers; of teachers by their
colleagues, principals and management representatives; of PhD students by their guides and
so on and so forth which was widely recognized by the Media and various Trade Unions.
Baailancho Saad('Women's Voice') in Goa was another movement which mobilised the
public opinion against the chief minister, who was alleged to have harassed his secretary, and
forced him to resign. In 1990, a Public Interest Litigation was filed by the Baailancho Saad
organization he demanding the Government to bring amendments in the antiquated rape law
that defined rape in the narrowest sense of 'penile penetration into the vagina'. This was
supported by many groups that stood for women empowerment.
Some noteworthy cases of Sexual Harassment at work place prior to the Vishaka Case were
of the IAS officer Rupan Deo Bajajs case 2, an airhostess against her colleague Mahesh
Kumar Lala, in Mumbai. Before 1997, victims of sexual Harassment were required to lodge a
complaint under Section 354 of the Indian Penal Code which provided for 'criminal assault of
women to outrage women's modesty', and Section 509 that punishes an individual/individuals
for using a 'word, gesture or act intended to insult the modesty of a woman', Thus leaving the
interpretation of what amounted to 'outraging women's modesty', to the discretion of the
police officer.

1 Sexual Harrasment in the Workplace, Research Review Paper, Vol. 36, No. 4
2 Rupan Deol Bajaj v. Kanwar Pal Singh Gill , 1996 AIR 309

II.

Facts Of The Case

The case of Vishaka and Ors v State of Rajasthan and Ors.3 is a three judge bench decision
comprising of Verma C.J.I, Sujata Manohar J and Kirpal J in response to a writ petition filed
for the enforcement of the fundamental rights of the working women under Article 14, 19 and
21 of the constitution.
The writ petition was filed in consequence of the brutal gang rape at the workplace of a social
worker. As per her rapists, the action was justified because it was motivated intentions to
teach the lowly poor woman a lesson for having the courage to stand against them.
The petition was however rejected in the Rajasthan High Court.
After this, a class action suit was filed in the Supreme Court by an enraged group of women
activists known as Vishaka.

III.

Judgement of the Supreme Court

A class action suit was filed by certain social activists and NGOs with the aim of focussing
attention to such a social evil.
Verma C.J puts emphasis on the brutal gang rape of the social worker, stating that this
incident reveals the hazards to a working women and therefore results in violation of
fundamental rights of Equality and Right of Life and Liberty i.e. under Article 14, 15 and 21.
The court also opined that there was an express violation of Article 19(1)(g), the right to
practice any profession and to carry out any occupation, since a safe environment is the prerequisite to the freedom under Article 19(1)(g).
Therefore, the court admitted the writ petition under Article 32, for the enforcement of the
fundamental rights of women. In fact, the Bench is of the opinion that Article 32 and the writ
of mandamus exist for such cases.
The Honourable Supreme Court also discussed the fundamental duties under Article 51, 51A
with the reference to the applicability of international conventions. While discussing this,
3 (1997)6 SCC 241

Article 253 has been invoked to give effect to the international agreements, stating that the
Parliament has the power to implement such agreement or convention of any other country.
Entry 14 of the Union List in the seventh schedule also gives the power to the union to enter
into such agreement and treaties with foreign countries. This is implicit from Article 51(c),
253 and Entry 14 of the Union List.
As gender equality includes the right to work with dignity which is a universally recognised
basic right, the court decreed that in the absence of domestic law the international
conventions will come into play. The cases of High Court of Australia in Minister for
Immigration and Ethnic Affairs v. Teoh4 and Nilabati Behera v State of Orissa5 were cited to
support this point.
Therefore the Court looked into the Beijing Statement of Principles of the Independence of
the judiciary in the LAWASIA region and the Convention on the Elimination of All Forms of
Discrimination against Women, which were accepted in 1995, especially Article 11 Article 11
of which espouses gender equality and safe working conditions for women and Article 24
which directs the states to take such measures for the same.
The Court also analysed the general recommendations of CEDAW, Section 23 of which
determines what all can be included in sexual harassment.
Since the government of India ratified the resolution in 1993. It also committed to formulate
and operationalize a national policy on women, and set up commission for women to act as
public defender of womens human rights.
Therefore the Court devised the guidelines and norms to enforce in every workplace until a
legislation to such effect is not formed. That case exposes the perils a working woman faces
in the sphere of the work place and the immediate need for guidelines or policy in absence of
legislation regarding the same. The Honourable bench in this case calls this a social need.

4 128 ALR 353

5 (1993) 2 SCC 746
5

IV.Guidelines and the Analysis of Guidelines

1. Duty of the Employer or other responsible persons in work places and other institutions:
It shall be the duty of the employer or other responsible persons in work places or other
institutions to prevent or deter the commission of acts of sexual harassment and to provide
the procedures for the resolution, settlement or prosecution of acts of sexual harassment by
taking all steps required.

This is the first guideline given in the case Vishaka v State of Rajasthan 6. This
guideline does not define other responsible person. Who, other than the employer
will take action against sexual harassment? Perhaps it is the senior employees whose
guidance and influence the other employees are.

2. Definition:
For this purpose, sexual harassment includes such unwelcome sexually determined
behaviour (whether directly or by implication) as:
a) physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical verbal or non-verbal conduct of sexual nature.
Where any of these acts is committed in circumstances where under the victim of such
conduct has a reasonable apprehension that in relation to the victim's employment or work
whether she is drawing salary, or honorarium or voluntary, whether in government, public or
private enterprise such conduct can be humiliating and may constitute a health and safety
6 1997)6 SCC 241
6

problem. It is discriminatory for instance when the woman has reasonable grounds to believe
that her objection would disadvantage her in connection with her employment or work
including recruiting or promotion or when it creates a hostile work environment. Adverse
consequences might be visited if the victim does not consent to the conduct in question or
raises any objection thereto.

The definition of sexual harassment is not exhaustive, as the fifth point says any
other act.... The important aspect of this guideline is that the sexual harassment can
be physical or verbal. Another important point to be noted is that it includes the
government, public and private sectors. Sexual harassment includes any act which
puts the victim at a competitive disadvantage when it comes to promotion etc.

3. Preventive Steps:
All employers or persons in charge of work place whether in the public or private sector
should take appropriate steps to prevent sexual harassment. Without prejudice to the
generality of this obligation they should take the following steps:
(a) Express prohibition of sexual harassment as defined above at the work place should be
notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and
discipline should include rules/regulations prohibiting sexual harassment and provide for
appropriate penalties in such rules against the offender.
(c) 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.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and
hygiene to further ensure that there is no hostile environment towards women at work places
and no employee woman should have reasonable grounds to believe that she is
disadvantaged in connection with her employment.

The principle or rationale behind this guideline is prevention is better than cure.
Hence, the work place should expressly prohibit sexual harassment at the work place

and this should be adequately published and notified, such that it is in the common
knowledge of all the employees.

A very important aspect is that such regulations against sexual harassment should be
included in the Standing Orders of the work place under ID Act. Hence, before the
establishment of the workplace, the policies against sexual harassment are reviewed.
In case of government and public sector institutions, the rules and regulations should
lay down the policy against sexual harassment and must also provide for punishments
in case of misconduct by any employee.

This guideline goes to the very fundamentals and says that there should be a peaceful
environment in terms of work, leisure, health and hygiene. Also, the employee must
not be of the apprehension that he/she will have to face adverse consequences in case
of non compliance with the sexual demands.

4. 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 in accordance with 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 have the option to seek transfer of the perpetrator or their own transfer.

The Indian Penal Code has a separate chapter for offences against the human body.
This includes rape and molestation. It is interesting to not that in this guideline, the
onus is placed on the employer to initiate proceedings against the wrong doer.
Specifically, it should make sure that not only victims but also witnesses do not feel
disadvantaged or put in an adverse position for raising their voice against the sexual
harassment.

In consequence, transfer of either the victim or the wrong doer must be option
exercisable by the victim.

5. Disciplinary Action:
8

Where such conduct amounts to misconduct in employment as defined by the relevant service
rules, appropriate disciplinary action should be initiated by the employer in accordance with
those rules.

Here also it is important to note that the disciplinary action should be initiated by the
employer. This is a guideline of very sound reasoning as the victim who will be
traumatized by the incident and apprehensive about the repercussions of raising the
dispute will not be in any position to initiate proceedings.

6. Complaint Mechanism:
Whether or not 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 complaint mechanism should ensure
time bound treatment of complaints.

Even if the act of misconduct does not within the strict confines of the laid down
service rules or any law, the victim should be given the opportunity to raise the
concern in a grievance redressal mechanism.

7. Complaints Committee:
The complaint mechanism, referred to in (6) above, should be adequate to provide, where
necessary, a Complaints Committee, a special counsellor or other support service, including
the maintenance of confidentiality.
The Complaints Committee should be headed by a woman and not less than half of its
member should be women.
Further, to prevent the possibility of any under pressure or influence from senior levels, such
Complaints Committee should involve a third party, either NGO or other body who is
familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the government department
concerned of the complaints and action 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.

The complaints and other statements should be confidential. A special counsellor

should be appointed for the same.

Up until now, the guidelines lay down the rules for the victim. It does not state
whether the victim is a man or a woman. However, in this particular guideline we see
that the guidelines are woman centric.

The complaints Committee, constituted for the process of grievance redressal, is

answerable to the concerned government department.

8. Workers' Initiative:
Employees should be allowed to raise issues of sexual harassment at workers meeting and in
other appropriate forum and it should be affirmatively discussed in Employer-Employee
Meetings.

The concerns against sexual harassment should be addressed at a preliminary level at

the Employer-Employees meetings.

9. Awareness:
Awareness of the rights of female employees in this regard should be created in particular by
prominently notifying the guidelines (and appropriate legislation when enacted on the
subject) in suitable manner.

The guidelines and other policy relating sexual harassment at the work place must be
made predominately visible and such that it is within the knowledge of all the
employees.

10. Where sexual harassment occurs as a result 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.

10

Sexual harassment can be done by a third person, who is not in the employment with
the said work place. The said act can be due to a positive act or a negative act which is
omission. In such a case the employer will take all the reasonable steps to support the
victim during these trying times.

11. The Central/State Governments are requested to consider adopting suitable measures
including legislation to ensure that the guidelines laid down by this order are also observed
by the employers in Private Sector.

It is pertinent to note that these guidelines laid by the Honourable Supreme Court are
applicable to the government, public and private sectors. Hence, the private sectors
are not exempt from complying with these guidelines.

12. These guidelines will not prejudice any rights available under the Protection of Human
Rights Act, 1993.
Accordingly, we direct that the above guidelines and norms would be strictly observed in all
work places for the preservation and enforcement of the right to gender equality of the
working women. These directions would be binding and enforceable in law until suitable
legislation is enacted to occupy the field. These Writ Petitions are disposed of, accordingly.

The basic aim of these guidelines is to ensure the protection of women employees at
the workplace. These guidelines are binding on all the sectors and are to be followed
in letter and spirit till the time the Legislature comes up with an Act regarding the
same.

11

V.

Developments post Vishaka Guidelines

Post the 1997 judgment, the citizens of India realized the need for a legislation to tackle the
evil of sexual harassment at the workplace. In spite of this realization, no substantive bill was
introduced in the parliament for more than a decade. It was only in 2013 that the Parliament
passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013.
Post the Vishaka guidelines, a number of organisations carried out research on Sexual
Harassment at Workplace. A survey by a Delhi organization called Sakshi, revealed that 80%
of respondents disclosed that Sexual Harassment exists, 49% had encountered, 41% had
experienced, 53% women and men did not have equal opportunities, 53% were treated
unfairly by supervisors, employers and co-workers, 58% had not heard of the Supreme
Court's directive of 1997, and only 20% of organisations had implemented the Vishakha
guidelines7.
There are several controversies revolving around some of the more influential persons in the
corporate, business or print media world. In spite of this most private companies refrain from
investing funds in such committees.
A Sophia Centre for Women's Studies and Development study shows not only awareness but
alos implementation of the Supreme Court's guidelines is very low and there there is a need
to spread awareness about the same.
Recently, Times Foundation organised a workshop for the corporate world on Sexual
Harassment at Workplace. The testimonies of several of the participants at the workshop
disclosed that SHW is prevalent even in companies where the victims are highly educated

7 Dalal, 2003
12

and have considerable economic leverage. Similar views have been expressed in the business
journals.8
While addressing the India Today Woman Summit and Awards, 2015, the current Minister for
Woman and Child Development Maneka Gandhi, warned that those corporate houses which
do not set up committees under Vishaka guidelines will face tough action.9
Off late, not only have the number of sexual offences increased, but some can say that they
have become more heinous in nature. Towards the end of 2013, there emerged a blog of a
former law intern of a retired Supreme Court judge wherein she alleged sexual harassment by
the judge but was unwilling to reveal his name.
The Supreme Court did not issue any observations on the allegations itself, and instead
moved on to the larger issue of setting up a permanent mechanism to deal with such cases.
The court had asked for a permanent mechanism to be set up for the redressal of such sexual
harassment complaints against former and sitting judges of the Apex court, High Courts,
tribunals and quasi-judicial bodies in the country and has also asked the Attorney General of
India and the Solicitor General of India to assist in forming such a group.
Another interesting case is that of an allegation of sexual harassment by the additional district
and sessions judge in Gwalior against the Madhya Pradesh High Court judge. Former
additional Solicitor General of India, Indira Jaising has stated that parliamentarians should
come forward to initiate impeachment proceedings against the said Madhya Pradesh High
Court judge and that he should face action as per the Vishaka guidelines and that the
resignation of the woman judge should not be accepted.10
In August this year, the Government of India released data which stated that 526 cases of
sexual harassment of women at workplace were reported during 2014. 11 It was also reported
8 ([I]The Indian Express[/I], Mumbai [I]Newsline[/I], 21-10-2004).
9 Sneha Agrawal, Offices must have Vishaka panels or face action, says Maneka
Gandhi, September 20, 2015, Daily Mail
10 FP Staff, Sexual harassment : Try accused judge under Vishaka Guidelines,
says Indira Jaisingh August 4, 2014, First Post
11 PTI, 526 cases of sexual harassment at workplace in 2014: Maneka Gandhi
August 8, 2015, Indian Express See more at:
13

that 57 cases were reported at office premises and 469 cases were registered at other work
places.
Ms. Gandhi has stated that the ministry had issued advisories to all States/Union territories
on December 23, 2013 and 27 October, 2014 to ensure effective implementation of the Act.
The ministries/departments in government have also been advised to ensure the compliance
of the Act time to time. In addition to this, the ministry has taken up the matter with the
Ministry of Corporate Affairs for the constitution of Internal Complaints Committee in the
accordance with the Act as a mandatory disclosure requirement under Companies Act, 2013.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill
was first introduced by the then Minister for Women and Child Development Krishna Tirath
in 2007 and thereafter approved by the Union Cabinet in January 2010. It was then tabled
before the Lok Sabha in December 2010 and referred to the Parliamentary Standing
Committee on Human Resources Development. The committee's report was published on 30
November 2011.12 In May 2012, the Union Cabinet approved an amendment to include
domestic workers.13 The amended Bill was finally passed by the Lok Sabha on 3 September
2012.14 The Bill was passed by the Rajya Sabha (the upper house of the Indian Parliament) on
26 February 2013. It received the assent of the President of India and was published in the
Gazette of India, Extraordinary, Part-II, Section-1, dated 23 April 2013 as Act No. 14 of
2013.
In addition, this Act covers not only students in schools and colleges, but also patients in
hospitals, employers and local authorities, who will have to set up grievance committees to
investigate all complaints. The Act also prescribes for a fine of up to Rs. 50,000 in case of
non-compliance by the employers.
http://indianexpress.com/article/india/india-others/526-cases-of-sexualharassment-at-workplace-in-2014-maneka-gandhi/#sthash.ke5tiTUA.dpuf
12 The Telegraph (Calcutta) (18 April 2012). "Watch what you say". Retrieved 13
September 2012
13 Polanki, Pallavi (28 August 2012). "Bill against sexual harassment a boost to
domestic workers". First Post. Retrieved 13 September 2012
14 New York Daily News (3 September 2012). "Lok Sabha passes bill against
sexual harassment in the workplace". Retrieved 13 September 2012
14

Through the Criminal Law (Amendment) Act, 2013, Section 354 was added to the Indian
Penal Code that stipulates what consists of a sexual harassment offence and what the
penalties shall be for a man committing such an offence. Penalties range from one to three
years imprisonment and/or a fine. Additionally, with sexual harassment being a crime,
employers are obligated to report offences.15
Initially, a major criticisms of the Bill was that it doesnt cover women in the armed forces
and excludes agricultural workers. Brinda Karat, A Rajya Sabha member from the
Communist Party of India stated that, a gross injustice to agricultural workers who are the
single largest female component of work force in the country. 16 This was rectified when the
final Bill was passed to form the Act.
Considering the fact that it took 15 years for the Legislation to formulate rules which were
effectively laid down by the Supreme Court in 1 case, and also the fact that there is failure in
the implementation mechanism of the Act, a safer work environment for women seems
doesnt seem like something that will be achieved in the next few years. While agreeing that
the Government is taking efforts in attempting to implement the Act, stronger and more
assertive action is required not only by the Government, but also by the employers and the
employees. It is not only the employers duty to set up a complaint mechanism but it should
also be the employees right to demand it and a safer work environment.

15 Nishith Desai Associates, Veena Gopalakrishnan, Ajay Singh Solanki and

Vikram Shroff, Indias new labour law - prevention of sexual harassment at the
workplace, Lexology, 30 April 2013
16 Chakrabarty, Rakhi (4 September 2012) "Sexual harassment at workplace Bill
passed". Times of India. Retrieved 13 September 2012
15

VI.

Conclusion

The Vishaka guidelines were a welcome measure in eradicating the social evils directed at
women. In order to seek vengeance against the brave lady who stood up against child
marriage, the accused sought to brutally gang rape, thus showing a patriarchal society that
does not give any protection to women. The judgement brought confidence in the minds of
countless women, who considered this as a beginning to a gender equal society.
Even though the victims are still hesitant to come to the public because of the procedural
difficulties and delay in the delivery of justice system, this needs further alteration.
The Indian Express reports a staggering number of 524 cases of Sexual harassment in the
workplace. Even though the Vishaka case was one that reflected the perils a working woman
has to face. It is a sore reminder of the kind of safety measures the State has to take. The
Judiciary however has done its part by taking a proactive step and coming up with concise,

16

well defined guidelines. The Legislature has finally done its part by enacting the Sexual
Harassment at the Workplace Act. One can only wait and watch what the future holds.

Bibliography
List of cases:
1.

Rupan Deol Bajaj v. Kanwar Pal Singh Gill , 1996 AIR 309

2.

Vishaka and Ors v State of Rajasthan and Ors 1997)6 SCC 241

3.

High Court of Australia in Minister for Immigration and Ethnic Affairs v. Teoh
128 ALR 353

4.

Nilabati Behera v State of Orissa (1993) 2 SCC 746

Articles:
1. Chakrabarty, Rakhi (4 September 2012) "Sexual harassment at workplace Bill
passed". Times of India. Retrieved 13 September 2012

17

2. Nishith Desai Associates, Veena Gopalakrishnan, Ajay Singh Solanki and Vikram
Shroff, Indias new labour law - prevention of sexual harassment at the workplace,
Lexology, 30 April 2013
3. New York Daily News (3 September 2012). "Lok Sabha passes bill against sexual
harassment in the workplace". Retrieved 13 September 2012
4. Polanki, Pallavi (28 August 2012). "Bill against sexual harassment a boost to
domestic workers". First Post. Retrieved 13 September 2012
5. The Telegraph (Calcutta) (18 April 2012). "Watch what you say". Retrieved 13
September 2012
6. PTI, 526 cases of sexual harassment at workplace in 2014: Maneka Gandhi August
8, 2015, Indian Express See more at: http://indianexpress.com/article/india/indiaothers/526-cases-of-sexual-harassment-at-workplace-in-2014-manekagandhi/#sthash.ke5tiTUA.dpuf
7. FP Staff, Sexual harassment : Try accused judge under Vishaka Guidelines, says
Indira Jaisingh August 4, 2014, First Post
8. Sneha Agrawal, Offices must have Vishaka panels or face action, says Maneka
Gandhi, September 20, 2015, Daily Mail
9. ([I]The Indian Express[/I], Mumbai [I]Newsline[/I], 21-10-2004).
10. Dalal, 2003
11. Sexual Harrasment in the Workplace, Research Review Paper, Vol. 36, No. 4

18