VISHAKA & ORS VS STATE OF RAJASTHAN & ORS

(1997) 6 SCC 241

Petitioner: Vishaka & Ors.

Respondent: State of Rajasthan & Ors.
Date of Judgement: 13/08/1997
Bench: J.S. Verma C.J., Sujata V. Manohar & B.N. Kirpal JJ.

BACKGROUND –
The Vishaka v. State of Rajasthan is a landmark judgment case in a history of sexual harassment by an
Indian judiciary. This case marked the beginning of stringent laws related to sexual harassment at the
workplace. Sexual harassment means unwelcome sexual behavior or sexual gestures from one gender to
another. It includes staring and leering at someone, passing unwanted sexual remarks, displaying
obscene pictures, asking for sex, doing unwanted messaging, and insulting you with sexual comments.
Before this case, there was no law related to sexual harassment at the workplace but after this, the
Supreme Court provided the set of guidelines against the employers as well as other responsible persons
or institutions to protect against sexual harassment to women at the workplace.
The Supreme Court also stated that the instances of sexual harassment resulting in violation of the
fundamental right of women of gender equality which is defined under Article 14[1] of the constitution
and right to life and right to live with dignity under Article 21[2] of the constitution of India are being
violated. Sexual harassment makes the person feel offended and humiliated to the person it has been
done. The main reason for the cases of sexual harassment at the workplace is increasing in our country
was that at that time no law will punish an offender but after the Vishaka guidelines, years later the
legislative act was enacted and enforced by the parliament i.e., Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013.

FACTS –
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 neighboring 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 complain. 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 Articles 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.

ISSUE –
 Whether sexual harassment at the Workplace amounts to a violation of Rights of Gender
Inequality and the Right to Life and Liberty?
 Whether the court could apply international laws in the absence of applicable measures under the
existing?
 Whether the employer has any responsibility when sexual harassment is done to/by its
employees?
JUDGEMENT –
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 the Convention on
the Elimination of All Forms of Discrimination against Women (CEDAW). They were-
Article 11 (1) (a) & (f)- which states that the State takes all appropriate measures to eliminate
discrimination against women in the field of employment.
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.
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.
DEFINITION – For this purpose “Sexual Harassment” means disagreeable sexually determined
behavior direct or indirect as-
Physical contact and advances;
A demand or request for sexual favors;
Sexually colored remarks;
Showing pornography;
Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
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 a 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 a counseling facility. It is also acceptable to collaborate with NGOs or any
such organizations which are well aware of such issues. A report must be sent to the government
annually on the development of the issues being dealt with 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.

ANALYSIS –
The court in Vishaka was called upon for the enforcement of the fundamental rights mentioned under
articles 14, 19 & 21. The country had after 1991 saw a rise in gender equality in terms of employment.
Since 1991 more women were employed in establishments than pre-1991 period. This rise also was a
crucial factor in the rise of incidents of sexual harassment and related offenses. Then there was no law to
prevent & punish the commission of such offenses therefore, the majority of the incidents went
unreported and hence unpunished. This was a black stain on the Indian criminal justice system. Due to
this absence of law, there were many gross violations of rights & the victims had no remedy. The
legislature was still silent on making any law in such regard even after multiple incidents of similar
nature where there was sexual harassment. India is competing with the liberal world succeeded in
employing women to achieve gender equality however, it failed miserably to provide a healthy
environment for such employment.
Therefore, in a class action, brought by various NGO’s and social workers, finally, the apex court
brought this silence to an end. The court without hesitating in breaking its constitutional boundaries
(only to interpret law) formulated guidelines for the prevention of such incidents. These guidelines are
known as Vishaka guidelines. This was a welcome step by the SC where it finally provided the victims
of such incidents a law through which they can seek remedy.
This incident revealed the consequences to which an employed woman faces and the pressing need for
protection by any other procedure in the lack of statute. The court, therefore, felt the need to find an
alternative mechanism to deal with such incidents. These guidelines had the effect of protecting female
liberty in the employment establishment so that they could feel an atmosphere of equality. The court
ruled that violation of gender equality is a violation of the Right to life & liberty mentioned under
Article 21. Along with the violation of Art. 21, the court also found a gross violation of Articles 14 &
15.
The court after a combined reading of Article 51(c) with Article 253 and Entry 14 of Union List
mentioned in the 7th Schedule found that in the absence of relevant statutes the court can draw
inspiration from international law, treaties, and conventions to resolve a problem.
Therefore, the court after a deep interpretation of:
 Convention on the Elimination of all Forms of Discrimination against Women (Article 11 & 24)
 General recommendations of CEDAW in this context (Article 11, 22, 23, 24)
 At the 4th World Conference on Women in Beijing, Govt. of India made an official commitment
to set up a National Commission at every level and in every sector that will look after Women’s
Rights.
came up with Vishaka guidelines to prevent the taboo that was in the past without any remedy.
The court ruled that Gender equality & the right to work with dignity is injured whenever there is any
incident of Sexual Harassment. These rights have gained universal acceptance therefore, interpretation
of international covenants and agreements is a must to formulate such guidelines.

CONCLUSION –
Vishaka judgment is one of the most gifted pieces of law the court has ever enacted in its history since
its inception. The court seeing the importance of the matter came directly into the ground by breaking all
the restrictions upon it by the constitution and laid down such guidelines which would ensure that no
such act of harassment goes unpunished.
The court in the absence of domestic law didn’t hesitate in reading international law on the subject
matter (CEDAW). The SC found authority for such reference in the combined reading of art. 253 read
with entry 14 of Union List in Seventh Schedule.
The Vishaka judgment along with its importance also contains rationality in the sense that it does not
over-pressurize the employer in constructing a redressal mechanism. The judgment has only directed
what seems appropriate for an employer to maintain the constitutional principles of equality and liberty.
The judgment can never be termed as one where the judiciary encroaches its boundaries irrationally i.e.,
Judicial Overreach instead it is the best example of judicial activism.