Nirma University

Institute of Law

Constitutional Law-I: 2BL332

CASE ANALYSIS

Names of Students:
Rishi Raj Singh (19bal037)

Himanshu Charan (19bal077)

Kuldeep Singh Rathore (19bal084)

Lakshdeep Singh Rathore (19bal087)

1. Name of Case:
Vishaka & Ors vs State of Rajasthan & Ors (1997) 6 S.C.C. 241

2.
a) Composition of the Bench:
The Supreme Court of India – Division Bench (3 judges)

b) Name of Judges:
CJI J S Verma,
Sujata V. Manohar,
B.N. Kirpal, JJ.

3. Area of Law:
Constitutional Law; The right to equality, the right to non- discrimination, the right to
practice one’s profession and Right to life.

4. Brief Facts of the Case:

The case of the “the vishaka vs the state of rajasthan and ors” 1 – a landmark case having its
root dating back to the year 1965 when a social worker of the women’s development project
led by Rajasthan government – Bhanwari Devi was badly raped in the year 1992 in the
presence of his husband. As an active member of the organization she used to directly work
with the local families of her village Bhateri to prevent the child marriages and if needed in
urgent situations report the cases to the police. All her social reform measures took an
unpleasant turn when she tried to stop a man from marrying a one year old infant. In this
particular case, she took efforts to stop the marriage of Ramkaran’s Gujjar infant daughter.
However the marriage did happen and on top of all that Ramkaran Gujjar enraged by her
courage to undermine his family customs took revenge by raping her with 5 other men in
front of his helpless husband.
Police at first deterred them for recording any complaint against the blamed and postponed
examination. With her and her husband’s assurance and determination, they some way or
another had the option to stop a grumbling denial from police and able to lodge a complaint
however for obtaining proof, the Police insulted and drove her out of her lehnga, thus she was
left with only her husband’s blood-stained dhoti to spread up. When she went for clinical
check up, the medical examiner took no efforts about giving any reference to the commission
of assault in the clinical report and recorded just her age. It was simply after 52 hours when
her clinical assessment was taken.
Being insistent on her fight for justice she took her case to trial court in Rajasthan but all her
beliefs on justice began to shatter when the court aquitted all the 5 men accused in the cases
on the basis that there was no concrete evidence and it was hard for them to believe that the
wife was being raped and the husband being restrained didn’t do anything and saw the act of
cruelty being helpless. The delayed medical examination and police report supplemented the
acquittal of the accused.
The high court further incited that “it is an instance of group assault which was submitted out
of retribution”.

1
(1997) 6 SCC 241
Aggrieved by the injustice various women’s right organizations and NGO’s took stand for
Bhanwari Devi and raised their voices consequently filing a writ petition under article 322 in
the name of VISHAKA to protect the rights of working women in the supreme court of India
and the supreme court examined the issue at hand intricately. The petition filed was with
reference to the enforcement of the fundamental right (of the employed men) under article 14,
19 and 21of the Constitution of the India.
This case came into light and brought strong significant reforms for working women
specifically taking into consideration the issue of sexual harassment of women at working
place simultaneously addressing the issue of gender equality.

5. Jurisdiction:
The Supreme Court initially got jurisdictions over the matter by a writ petition.
Thereafter, a division bench was constituted, to consider the matter.

6. Question of law:
The case involves a question for the protection of women against sexual harrasment at
workplace and for prevention and redressal of complaints of sexual harrasment in
addition to necessity of gender equality.

7. Reliance on relevant:
2
Section 32- (1) the right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights

Conferred by this Part is guaranteed.

(2) 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.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by

Law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers

Exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this

Constitution
 a) Statutes & Law: Constitution of India, 1950
• Article 14 (the right to equality)3
• Article 15 (the right to non discrimination) 4
• Article 19(1)(g) (the right to practise one’s profession)5
6
• Article 21 (the right to life)
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW) , 1979
• Article 11 ([State] takes all appropriate measures to eliminate discrimination against
women in the field of employment)7
• Article 24 ([State shall] undertake to adopt all necessary measures at the national
level aimed at achieving the full realization)8

b) Decided Cases: Swapna Barman vs Subir Das (2004) 1 GLR 168

Miss Radha Bai vs The Union Territory Of Pondicherry 1995 AIR 1476
Medha Kotwal Lele & Others v. Union of India & Others 2013 (1) SCC(Cr) 473
P.K. Puthuppan vs K.S. Girija WP(C).No. 25754 of 2008(N)
Smt. Nilabati Behera Alias Lalit Behera vs State Of Orissa And Ors 1993 AIR 1960
Rupan Deol Bajaj vs K.P.S. Gill (1995) 6SC194
Swapna Barman vs Subir Das (2004) 1 GLR 168
The Apparel Export Promotion Council & another vs A.K. Chopra AIR 1991 SCC
799
State of Punjab vs Major Singh AIR 1967 SC63
Samridhi Devi vs Union Of India (Uoi) And Ors.125 (2005) DLT 284
Narendra Kumar v. State of Haryana (1994) 2 SCC 94
Mohini Jain v State of Karnataka AIR 1992 SC 1858
Raju Pandurang Mahale vs State of Maharashtra (2004) 4SCC371

8. Legal issue for determination

Fundamental Rights enshrined under Article 14, 19 & 21 were a defining factor that Sexual
Harassment at Workplace is a clear violation of gender Equality which in turn violates these
integral rights of the female class. Such harassment also results in violation the freedom
3
Article 14 of The Constitution of India
4
Article 15 of The Constitution of India
5
Article 19(1)(g) of the constitution of India
6
Article 21 of The Constitution of India
7
Article 11, Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), 18
December 1979.
8
Article 24, Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), 18
December 1979.
provided under Article 19(1) (g). The protection of females has become a basic minimum in
nation across the world. In the absence of domestic law to curb the evil, assistance might be
rendered from International Conventions and Statues to the extent that it doesn't contravenes
with any domestic law or the don't violates the spirit of Constitution. 

9. Nature of the issue

In this case it was a very important task before the Court to determine the guidelines for
prevention of sexual harassment at work place after giving the verdict that whether there was
infringement of Fundamental rights of victim or not?

10. Reasoning and decision

In considering the problem, the court recognized the inadequateness of protection afforded to
working women, indicating that the present civil and penal laws in India are not adequate
enough to provide specific protection of women from sexual harassment in work places. The
court stated that women needed “safe’ working space” which was at the time not present.
The Court further recognized that India’s international obligations must be read into domestic
provisions, so long as they were consistent with fundamental rights and of a harmonious
spirit. The silence on the matter in Indian domestic legislation meant that international
agreements and conventions were significant for interpretation of ways to bring gender
equality, right to work with human dignity and the safeguards to protect against sexual
harassment implicit therein. While noting that the legislature and also the executive are
primarily responsible for creating legislation and mechanism for the enforcement of such
laws, the court stated that when cases of sexual harassment lead to violation of fundamental
rights of women workers are brought before the court to redress, an proper redressal requires
some guidelines to be laid down for the protection of those rights to fill the gap legislative
acts. The court also referenced the role of the judiciary under the Beijing Statement of
Principles of the Independence of the Judiciary in the LAWASIA region, setting forth the
minimum standards for maintaining judicial independence and effectiveness.
The Court stated that such violations fall under Articles 14, 19 and 21 and has a remedy
under Article 32 for the enforcement of such rights. The court realized that, to ensure
enforcement of such rights from now on, there needed to be directions to prevent such
violations as well as the provision of a remedy for violations which have occurred.
The Court recognized that the fundamental rights guaranteed under  the Constitution of India
are of sufficient to address all the facets of gender equality including prevention of sexual
harassment or abuse. The Court then set forth the Vishaka guidelines on sexual harassment
within the work place, which was to be observed at every work places and other institutions
until legislation was enacted on this issue. The guidelines set forth by the Court required
employers to stop sexual harassment within the workplace, establish procedures to deal with
sexual harassment, initiate criminal proceedings when appropriate, initiate disciplinary action
where required, create a complaints procedure and system, and support women who
experience sexual harassment by a 3rd party or outsider.
11. New Principles/Guidelines
The Supreme Court issued the guidelines to prevent the sexual harassment of women at
workplace which were applied on all organisations and work places till the law regarding
same would be enacted9.
The Court gave definition of Sexual Harassment as any physical touch and advance, demand
for sexual favours, sexually coloured remarks, showing pornography or any other physical,
verbal or non verbal conduct of sexual nature.
Supreme Court prescribed the duties of employer at workplace and said that he, or other
reasonable person should take action about any incident of sexual harassment by complaining
about it to the appropriate authority. The Court also gave the preventive steps to be taken,
complaint mechanisms, criminal proceedings and other awareness to be created among the
women workers.
The Court said to follow the guidelines strictly by everyone to ensure gender equality,
Fundamental Rights and safety of women at work.

12. Present Status of The Ruling

This verdict became landmark and brought a hope of reformation in the laws of gender
equality and harassment of women. The Guidelines have been used in many further cases and
verdicts like Apparel Export Promotion Council v A K Chopra10 and many reformation like
change in definition ere also bought in particular cases.
Later, the guidelines motivated into formation of new law by formation of the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 201311.

13. Remarks
The present case deals with the evil of sexual harassment of women at workplace. It bought a
new reform in the women safety and gender equality. The Court directed the guidelines by
giving the verdict of the case. The incident Vishaka faced revealed the dangers which
working women would faced. The absence of enacted law to provide the effective
enforcement of the basic human right of gender equality and guarantee against sexual
harassment and abuse, more particularly against sexual harassment at work place lead to the
framing of Guidelines by Court with immediate effect.
The Bench focused on the importance of providing Fundamental Rights to women to have a
safe working environment at workplace and provide gender equality and thrash down the
gender discrimination. The Court said that it ought to be ensured that the guidelines are
followed at all workplace and organizations for the safe work place for women.

9
These guidelines were referred as “Vishaka Guidelines” which were a set of procedural guidelines for use in
cases of sexual harassment
10
The Apparel Export Promotion Council & another vs A.K. Chopra AIR 1991 SCC 799
11
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is a
legislative act in India that seeks to protect women from sexual harassment at their place of work.
The guidelines Court issued were need of the hour with increasing harassment and
discrimination of women at workplaces, which came to light even more after the incident that
happened with Vishaka. The better reformation of guidelines came into picture after the
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act
2013 was formed on the basis of Vishaka Guidelines. The act helped the victim to raise their
women against the criminal but still, there is no decrease in the harassment cases rather, the
number is constantly going up. For this we need much more than a mere legislation and all
need to come up against the criminals.
Joy Jennings has perfectly said, “I am not your dog that you whistle for; I am not a stray
animal you call over; and I am not, I never have been, nor will I ever be, your “baby”!” 12
Most of the people, even after so much knowledge and being literate, see women as an object
which they think they can use whenever they want, however they want and can play with.
The problem is with the people, we need to change their thinking to stop the harassment and
discrimination that women are facing now a days and provide women their rights.

12
I’m not your” baby”, author – Joy Jennings