A study on Sexual Harassment and Gender Equality in workplace,

with special reference to Vishaka and others V. State of Rajasthan

and others

Case Name and Citation

Vishaka and others V. State of Rajasthan and others

Air 1997, Supreme Court 3011

Writ Mandamus

Date of Decision: 13 August, 1997

Facts

The lawsuit resulted from a brutal gang rape of a publicly employed social worker in a village in
Rajasthan during the course of her service. The petitioners bringing the litigation were various
social activists and non-governmental organizations. The crucial reason of bringing this Public
Interest Litigation was to find suitable methods for the realization of the true concept of “gender
equality” in the workplace for women. In turn, the prevention of sexual harassment of women
would be addressed by applying the judicial procedure.

Procedural Steps

A writ of mandamus was filed in the Supreme Court as 'a class action' in the form of Public
Interest Litigation as per the article 32(2) of the Indian Constitution.1

Issue

1
The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of
any of the rights conferred by this Part.
Issue was raised whether the employer has any responsibility in cases of sexual harassment by its
employee or to its employees at a workplace?

Urgency for safeguards of gender equality and women rights at workplace by preventing sexual
harassment of working women in all work places by an alternative mechanism in the absence of
legislative measures is the major issue raised.

Parties’ Argument and Supporting Authorities

The document provided does not mention nor distinguish the arguments made by the lawyers of
plaintiff and the defendant separately. There are, however, some arguments taken into account by
the court in course of delivering judgment. Such arguments considered by the court are listed as
follows:

Plaintiffs argued to fill the existing vacuum in law created due to lack of legislative measures by
promoting gender equality in workplace and preventing sexual Harrasment of working women.
To support this, the case Nilabati Behera v. State of Orissa, (1993) 2 SCC 746: (1993 AIR SCW
2366) was cited.

The international conventions and norms are to be read but not inconsistent with the fundamental
rights but in harmony with its spirit, in the absence of enacted domestic law occupying the field.
To support this, the case Minister for Immigration and Ethnic Affairs V. Teoh, 128 ALR 353
was cited.

Promoting gender equality in work place and preventing sexual harassment to be done in the
light of impliedly mentioned in article 14, 15, 19 (1) (g) and 21 of the Constitution.

Application of Human Rights Provisions

Constitution of India

 Article 14 (the right to equality)

 Article 15 (the right to non discrimination)
  Article 19(1)(g) (the right to practise one’s profession)
 Article 21 (the right to life)

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

 Article 11 ([State] takes all appropriate measures to eliminate discrimination against

women in the field of employment)
 Article 24 ([State shall] undertake to adopt all necessary measures at the national level
aimed at achieving the full realization)

Holding

After the submissions made by both the parties to the case, the court held that, in the absence of
enacted law to provide for the effective enforcement of the basic human right of gender equality
and guarantee against sexual harassment and abuse, at work places, the court lay down the
guidelines and norms specified after due observance at all work places or other institutions, until
a legislation is enacted for the purpose, under article 141 and article 32 of Constitution of India.

Reasoning

The documents provided as well as other documents referred do not expressly provide ratio
decidendi. However, thorough readings of the documents show the following grounds upon
which the judgment of the Supreme Court is based:

Taking note of the fact that the present civil and penal laws in India do not adequately provide
for specific protection of women from sexual harassment in work places and that enactment of
such legislation will take considerable time

There is increase in the effort to guard against such violations and the resentment towards
incidents of sexual harassment is also increasing.

Results

Supreme Court directed guidelines and norms for the preservation and enforcement of the right
to gender equality of the working women in accordance with universal human rights norms and
standards and stated that these directions would be binding and enforceable in law strictly
observed in all working places until suitable legislation is enacted to occupy the field.

Dissenting Opinion (If Any)

Commentary on the case

“A woman is like a tea bag. You can’t tell how strong she is until you put her in hot water"

Eleanor Roosevelt

Bhanwari Devi's Case

The Vishakha judgment was an offshoot of a rape case involving a social worker in Rajasthan.
Bhanwari Devi, who was a social worker in Rajasthan, was brutally gang raped by 5 upper class
men in front of her husband and subjected to social boycott, as she had tried to stop a child
marriage. This incident took place back in 1992. The doctors refused to examine her and the
police knowingly didn’t collect the evidence. The accused were acquitted by a trial court.
Bhanwari Devi was determined to get justice so several inspired women’s groups and NGOs
filed a petition (Public Interest litigation) in the Supreme Court under the collective platform of
Vishakha.

This case raised many questions in mind of people: if women in India are safe in the workplace?
Is she an entity, a being, or just a commodity to be used in the eyes of the men who are working
alongside her? And induced fear in people regarding the working of women outside the home.
India had no law relating to abuse and sexual harassment at workplace to protect and promote
safe working of women. This case has evoked the writ petition which resulted in providing
directives relating to protection of women against sexual harassment and promoting gender
equality.

Analysis of decision of the case

The case dates back to 1997, when there were no legislative measures concerning the rights of
working woman and protection of working woman against any type of violence, discrimination
or sexual harassment. The social context of 1990's make a clear vision of lack of opportunity and
accessible to work for women. Women were usually deprived of working outside the house and
even if they get the opportunity they were hardly subjected to equal treatment and wages.
Women back into 1990's, in the workforce lack sufficient education, skills, and training resulting
exploitation by employers and unequal treatment. 2 The writ petition was filed to ask for the
solution to the rising gender inequality and sexual harassment at work place. The court after
realizing the increment of such exploitation and harassment in the workplace called upon amicus
curie and considered argument of the lawyers and realizing the lack of domestic legislation to
protect women's right at workplace, directed the guideline which is famously called ' Vishaka'
Guideline. The case laid down so many guidelines and requirements which need to be fulfilled
by the employer as well as other responsible persons or institutions:

1. For preventing the acts of sexual harassment in the workplace, it should be the duty of the
employer or any other responsible person to prescribe for procedures and settlements.
2. Formation of a complaint committee at all workplaces.
3. Such committee has to be headed by a woman employee only and should have NGO or
third-party participation.
4. Half of the members of a committee should be comprised of women only.
5. All complaints regarding sexual harassment of a woman employee would be dealt by this
committee only; appropriate action in this regard shall be initiated by the employers in
accordance with the concerned law.
6. The committee would advise and recommend to the victim for the further course of
action.
7. Provides for the definition of sexual harassment which includes
8. This Guideline was under the international law and has been sensibly laid down
incorporating the various scope and procedure that the present international law is
covering.

2
Meena Razv and Gene L. Roth,' Socio-economic Development and Gender Inequality in India' Northern Illinois
University
Aftermath of the case
Vishaka's guidelines were the first of its type which created for the gender equality rights of
women, which should be free from harassment in both public and private employment. After the
formation of the Supreme Court's Vishaka Guidelines, the guideline in simple language was
circulated widely amongst all the Central Ministries and Government Departments. The
Commission also circulated the Code to all State Commissions for women, NGOs and apex
bodies of the Corporate Sector (CII, FICCI, ASSOCHAM etc.,), media and even made to
incorporate in the Code and conduct of every workpace and civil service act.
Vishaka Guideline was referred as law in no of cases including the landmark case of Sexual
Harassment at workplace i.e. Apparel Export Promotion Council v. A.K. Chopra,AIR 1999
Supreme Court 625, Writ Petition (Crl.) No. 173-177/1999 Medha Kotwal Lele & ors v. Union
of India & Others, and others, Prof. Manohar Dhonde and others vs. The State Of Maharashtra,
Supreme Court, Writ Petition No. 4170 of 2004, and so on.
It took the government seventeen years to pass the law against sexual harassment at workplace
after the Vishaka's guideline. Within the wake of the Delhi gang rape in December 2012, finally
an act was introduced to safeguard the rights of women in workplace. The Sexual Harassment at
Workplace (Prevention, Prohibition and Redressal) Act, 2013 seeks to guard women from
harassment at their place of work in an exceedingly abundant wider sense than Vishaka's
guideline. The Act includes several provisions of the Vishakha Guidelines.
International Human Rights law
This writ has incorporated various human rights violation. Right to equality as mentioned in
International Covenant on Economic, Social and Cultural rights, article 3 here in this case is
connected to gender equality in the workplace. Unlike man, woman should also be treated with
same rights, wages, respect and opportunity. Further right to non discrimination as mentioned in
ICESCR, article 2 and International Covenant on Civil and Political Rights article 25
incorporates no discrimination to be made on the ground of sex. Right to choose ones own
profession mentioned in article 6 of ICESCR.
Further Convention on Elimination of All Form of Discrimination against Women, article 11,
paragraph 1, State Parties shall take all appropriate measures to eliminate discrimination against
women in the field of employment in order to ensure, on a basis of equality of men and women
and right to protection of health and safety in working conditions. Article 24, State Parties
undertake to adopt all necessary measures at the national level aimed at achieving the full
realization of the rights recognized. The general recommendations of CEDAW in this context in
respect of Art 11, Equality in employment can be seriously impaired when women are subjected
to gender specific violence, such as sexual harassment in the work place. It provides guidelines
to safeguard women's rights and protection against sexual harassment at work place.
General Assembly Resolution 48/104 on the Declaration on the Elimination of Violence Against
Women defines violence against women to include sexual harassment, which is prohibited at
work, in educational institutions, and elsewhere (Art. 2(b)), and encourages development of
penal, civil or other administrative sanctions, as well as preventative approaches to eliminate
violence against women (Art. 4(d-f)).
Beijing Platform for Action, para. 178, recognizes sexual harassment as a form of violence
against women and as a form of discrimination, and calls on multiple actors including
government, employers, unions, and civil society to ensure that governments enact and enforce
laws on sexual harassment and that employers develop anti-harassment policies and prevention
strategies.

The ILO Committee of Experts on the Application of Conventions and Recommendations has
confirmed that sexual harassment is a form of sex discrimination covered by the Discrimination
(Employment and Occupation) Convention (No. 111) of 1958. The ILO’s Indigenous and Tribal
Peoples Convention (No. 169) also specifically prohibits sexual harassment in the workplace.

State obligation

CEDAW Convention’s prime objective is the prohibition of all forms of discrimination against
women (article 2). The States parties have the obligation to take all appropriate measures,
including legislation, to ensure the full development and advancement of women in all fields, in
particular in the political, social, economic, and cultural fields (article 3). The state under this
convention is obliged to respect protect and fulfill rights mentioned in convention. The
convention states that state parties need to respect protect and fulfill the rights of working
woman ensuring gender equality and choosing ones favored job opportunity. The states under it
are obliged to provide essential legislative measures to ensure the stated rights. Further, the states
are to submit the reports of implementation of legislative measures and progressive steps taken
by state to ensure these rights.

In the case, due to lack of legislative measures, the court on the basic of Fundamental Rights and
CEDAW provision respecting the state obligation clause has enunciated the guideline which has
been the law to fill vacuum until the enactment of act.

The state is also obliged under the ICESCR, to provide equal rights and eliminate discrimination
ensuring safe working condition. Under Maastricht and Limburg Principle the state are oblige to
respect protect and fulfill the stated rights ensuring legislative measures. ICCPR posses the
obligation to constitutionally implement the rights and are subject of immediate implementation.
But still the condition is same, after 40 years of ratification of ICCPR and ICESCR and after 25
years of ratification of CEDAW.
Condition of Women Right at working place

The lack of effective implementation of Vishaka guidelines has been the reason for increment in
sexual harassment cases in India. It is stated that the attitude of neglect in establishing effective
and comprehensive mechanism in letter and spirit of the Vishaka guidelines by the States as well
as the employers in private and public sector has defeated the very objective and purpose of the
guidelines.3
In any event the Guidelines set out in Vishaka were not being followed.4
As many as 1,971 cases of sexual harassment of women at workplace were registered in four
years till December 12, 2017, or one case every day. Cases reported increased by 45% from 371
in 2014 to 539 in 2017 (till December 12, 2017)5
Conclusion and recommendation
Sexual harassment is a menacing act prevailing in India for a long time, in spite of various laws
and thousands actions taken into concern. This shows that India after providing Guideline to
promote and protect women's right at workplace in 1997 and even after enacting act in 2013
A.D., situation is more worsen. Women are more subjected to sexual harassment in the recent
days. The more development of international law, national law, awareness and more
advancement in the society has been the reason towards more increment in attacking on women's
dignity and unequal treatment. The laws are made in paper but in reality lack implementation.
India has fulfilled the obligation of enacting the law but lacks in protecting and fulfilling the
enacted law and thus India has not been able to Protect and fulfill the guaranteed rights of the

3
Medha Kotwal Lele & Ors vs U.O.I. & Ors, AIR,2012
4
Sandeep Khurana vs. Delhi Transco Ltd and Others, AIR, 2006
5
Chaitanya Mallapur,"45% Rise In Sexual Harassment Cases At Workplace Over 3 Years" December 20,
2017 available at http://factchecker.in/45-rise-in-sexual-harassment-cases-at-workplace-over-3-years/, accessed on
17\05\2018
women. This is similar to giving birth to baby but not undertaking the responsibilities of baby, so
enacting the laws and acts are not enough to fulfill state obligation, at least efforts and initiative
to enforce that laws should be reported to CEDAW and HR committee and Committee on ESCR
but India lacks even in doing this.
"Awareness is the greatest agent for change" Eckhart Tolle. Awareness regarding the meaning of
sexual harassment, its impact on dignity of women, related laws and procedure for complaining
any happening of sexual harassment in workplace should be done in every corner of the state
most importantly the rural areas. Human Right bodies should actively play role in awareness
campaign. The training sessions regarding the self defense should be given to all female workers.
Further the awareness should not limit only to employees but also to employers. The laws thus
made should be made compulsorily attached in the code and laws of the particular workplace.
The action against sexual harassment should be done impartially whether the person is of high
rank and reputation. The Government should strictly adhere to the implementation of the laws.
Thus, Sexual harassment should be stopped and Gender Equality should be promoted in
Workplace as it relates directly to person's dignity, which is the centre of Human Right.