EXPERIENTIAL LEARNING ASSESSMENT

CASE ANALYSIS ASSESSMENT

ILS LAW COLLEGE, PUNE

I-LLB, 2o23-24

SUBJECT- CONSTITUTIONAL LAW – I

MANSHEKA KAR
DIVISION- 'A'
ROLL NO.- 6o37

VISHAKHA & Ors. V. STATE OF RAJASTHAN & Ors

| (1997) 6 SCC 241

DECEMBER 23, 2002

VISHAKHA & Ors. V. STATE OF RAJASTHAN & Ors

PETITIONER:

VISHAKHA

VS.

RESPONDENT:

THE STATE 0F RAJASTHAN

NAME OF THE COURT- HON’BLE SUPREME COURT OF INDIA

CITATION OF CASE- (1997) 6 SCC 241

H0N’BLE JUDGE- CHIEF JUSTICE J.S. VERMA, JUSTICE SUJATA V.

MANOHAR AND JUSTICE B.N. KIRPAL.

JUDGEMENT PASSED ON- 13TH AUGUST 1997

LAW APPLIED- The right to equity, The right to non-discrimination, The right to
practice one’s profession and Right to life.

The CONSTITUTION OF INDIA, 1950

1
1. Article 14 – Equality before law

“The State shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India.”

2
2. Article 15 – Prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth.

“(1) The State shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them. (2) No citizen shall, on grounds only of religion,
race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction
or condition with regard to— (a) access to shops, public restaurants, hotels and places of
public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public
resort maintained wholly or partly out of State funds or dedicated to the use of the general
public. (3) Nothing in this article shall prevent the State from making any special provision
for women and children. (4) Nothing in this article or in clause (2) of article 29 shall prevent
the State from making any special provision for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes and the Scheduled
Tribes.]

(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State
from making any special provision, by law, for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes or the Scheduled
Tribes in so far as such special provisions relate to their admission to educational institutions
including private educational institutions, whether aided or unaided by the State, other than
the minority educational institutions referred to in clause (1) of article 3o.]”

3
3. Article 19 – Protection of certain rights regarding freedom of speech, etc.

Article 19 (1) (g) – “to practice any profession, or to carry on any occupation, trade or
business.”

4
4. Article 21 – Protection of life and personal liberty.

“No person shall be deprived of his life or personal liberty except according to procedure
established by law.”
1
Article 14 of The Constitution of India
2
Article 15 of the Constitution of India
3
Article 19 (1) (g) of the Constitution of India.
4
Article 21 of the Constitution of India.
 INTRODUCTION
Vishakha's case of sexual harassment at work is a historic ruling by the Indian Supreme
Court. This case is historic because it is the first time that the necessity for laws against
sexual harassment of women in the workplace and establishing rules for doing so has been
formally acknowledged at such a high level. The case arose from the 1992 gang rape of a
social worker in Rajasthan named Bhanwari Devi, and it brought to light the lack of legal
protections against sexual harassment at work.

The first-ever framework protecting women employees by granting them the right to a safe
and healthy work environment was established by the Supreme Court in the case of Vishakha
v. State of Rajasthan5. As a result, the court established some requirements that must be
adhered to by all public and private workplaces. Additionally, it became necessary for all
employers to guarantee that women work in an environment free from harassment.
Institutions of higher learning can also use similar structures. The conventions upon which
our nation is founded, as well as the unalienable rights of every human being, served as the
foundation for these systems.

FACTS OF THE CASE

 It all began in 1985 when Bhanwari Devi was hired as a social worker (Saathni) for a
women's development project run by the Rajasthan state government, which sought to
end child marriages in villages. During her employment, she worked with families to
prevent marriages and also reported cases to the police in case immediate action was
required.
 In any particular case she tried to stop Ramkaran Gujjar’s infant daughter’s marriage,
although the marriage took place.
 A social boycott was imposed on her, and in September 1992, five men—including
Ramkaran Gujarat—gang-raped her in front of her husband. (Ramsukh Gujjar, Gyarsa
Gujjar, Badri Gujjar and Shravan Sharma).
 They sought assistance from the police station, but no comprehensive inquiry was
started. The inquiry was delayed because the police made every effort to avoid
making any complaints against the accused.

5
(1997) 6 SCC 241
  The primary healthcare physician in Jaipur declined to examine her. There was a 52-
hour wait for the medical checkup. The examiner, however, only mentioned the
victim's age in the report rather than any instances of rape commission.
 She was determined to fight for justice and filed a complaint against the accused
despite the preferential and insulting attitude displayed by the police and the doctor.
 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 a trial court.
 This provoked women’s rights groups and organisation (NGO) as “Vishakha” along
with four other organisations to come together and file a public interest litigation
(PIL) against the sexual harassment at the workplace. It laid its focus on the
enforcement of the fundamental rights of women at the workplace under the
provisions of article 14, 15, 19(1) (g) and 21 of the Constitution of India, it also raised
the issue of the need for protection of women from sexual harassment at workplace.
 As a result, on August 13, 1997, the Supreme Court rendered a decision that
established the Vishakha guidelines. Later on, the Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 20136 was enacted as a
result of the foundation created by the Vishakha case.

ISSUSED RAISED
 Whether sexual harassment at the Workplace amounts to a violation of Rights of
Gender Inequality and Right to Life and Liberty?
 Is it possible for the court to apply international laws in the absence of applicable
measures under existing law?
 Whether the employer has any role or responsibility in cases of sexual harassment
cases.

CONTENTIONS OF THE PARTIES

Petitioner’s Arguments

The petitioners, comprising social activists and NGOs7, vehemently argued for the
recognition of an effective alternative mechanism to safeguard the fundamental rights of
working women. They contended that incidents of sexual harassment not only violated
6
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013
Bill No 144-C of 2010
7
(1997) 6 SCC 241
constitutional guarantees under Articles 14, 19, and 21 but also demanded urgent redressal
under Article 32 of the Constitution. Their primary assertion was that in the absence of
specific legislative measures, the court should step in to fill the vacuum and provide
guidelines and norms to prevent and address sexual harassment.

Furthermore, the petitioners emphasized the immediate need for a comprehensive framework
to protect women from sexual harassment in all workplaces. They highlighted the urgency of
the matter by citing a specific incident—the brutal gang rape of a social worker in Rajasthan
—as an illustration of the hazards faced by working women. Their argument centred on the
idea that judicial intervention was imperative to address the societal aberration of sexual
harassment.

Respondent’s Arguments

On the other side, the respondents, including the State of Rajasthan and the Union of India,
were called upon to defend their stance on the existing mechanisms and the lack of specific
legislation to combat sexual harassment. The respondents acknowledged the prevailing
climate of violation of fundamental rights of working women and the urgency to address
incidents of sexual harassment. However, their primary contention was that legislative
measures were the prerogative of the legislature and executive, and the court's role was
limited in the absence of enacted law.

The respondents argued that the primary responsibility for ensuring a safe working
environment and preventing sexual harassment rested with the legislature and executive.
They pointed to provisions in the Constitution, such as Articles 15, 42, and 51A, which they
believed provided a framework for addressing issues related to discrimination and ensuring
just and humane conditions of work. The respondents urged the court to exercise restraint and
allow the legislative process to take its course.

JUDGEMENT
The judgment in the “Vishaka & Ors. v. State of Rajasthan & Ors.”8 case, delivered on 13th
August 1997 by Chief Justice Verma, along with Justices Sujata V. Manohar and B. N. Kirpal,
addressed the urgent need for guidelines to prevent and address sexual harassment of working
women in the absence of specific legislative measures. The court, recognizing the violation
of fundamental rights, particularly the right to gender equality and the right to work with
8
(1997) 6 SCC 241
dignity, laid down comprehensive guidelines and norms to be followed by employers until
suitable legislation was enacted.

 The court emphasized that incidents of sexual harassment constituted a clear violation
of fundamental rights under Articles 14, 15, and 21 of the Constitution. It identified
the logical consequences of such incidents, including the infringement of the victim's
right under Article 19(1)(g) to practice any profession.
 Acknowledging the absence of legislative measures to address sexual harassment at
workplaces, the court highlighted the need for an effective alternative mechanism to
fulfil this societal requirement.
 The judgment recognized the significance of international conventions and norms
related to gender equality and protection from sexual harassment. It invoked Article
51(c)9 and Article 25310 of the Constitution, which allowed for the consideration of
international obligations in the absence of conflicting domestic laws.
 The court underscored its responsibility under Article 32 for the enforcement of
fundamental rights and its obligation to lay down guidelines in the absence of enacted
law. It emphasized the need for a collective effort to protect working women from
sexual harassment.
 The court formulated detailed guidelines and norms to be observed in all workplaces,
including the duty of employers to prevent and deter sexual harassment, the definition
of sexual harassment, preventive steps, criminal proceedings, disciplinary action,
complaint mechanisms, and workers' initiatives. The guidelines also addressed the
role of Central/State Governments in ensuring compliance in the private sector.
 The court declared that these guidelines and norms would be treated as law declared
under Article 14111 of the Constitution. They were to be strictly observed until suitable
legislation was enacted to address the issue.

VISHAKHA’S GUIDELINES

9
Article 51 (c) of the Constitution of India, foster respect for international law and treaty obligations in the
dealings of organized peoples with one another.
10
Article 253 of the Constitution of India, notwithstanding anything in the foregoing provisions of this Chapter,
Parliament has power to make any law for the whole or any part of the territory of India for implementing any
treaty, agreement or convention with any other country or countries or any decision made at any international
conference, association or other body.
11
Article 141 of the Constitution of India, the law declared by the Supreme Court shall be binding on all courts
within the territory of India.
The following is an explanation of the key components of the guidelines that the Hon'ble
Supreme Court of India released: -

1. EMPLOYER'S OR OTHER EQUAL AUTHORITY'S DUTY:

In workplaces or other institutions, it is the responsibility of employers or other responsible

parties to prevent sexual harassment and to put up a system for its resolution.

2. SEXUAL HARASSMENT DEFINITION:

The definition of sexual harassment was established by the court. For the purposes of this
definition, unwanted sexually determined conduct comprises the following—whether
expressed explicitly or implicitly:

a) physical contact and advances;

b) a demand or request for sexual favors;

c) sexually coloured remarks;

d) showing pornography;

e) any other unwelcome physical verbal or non-verbal conduct of sexual nature.12

3. MEASURES FOR PREVENTION:

Employers or those in charge of the workplace are required to implement preventive

measures, such as a clear ban on sexual harassment through notifications or circulars,
government sanctions against the offender, and suitable working conditions with regard to
leisure, health, and hygiene.

4. PROCEEDINGS IN CASE OF MISCONDUCT:

The employer must take prosecutorial action by filing a complaint with the relevant
authorities if the offences committed are those included by the Indian Penal Code, 1860.

5. APPROPRIATE DISCIPLINARY ACTION:

If there is an occurrence of the violation of service rules, appropriate disciplinary action must
be taken.

6. REDRESSAL MECHANISM:

12
Ibid, at 5.
In order to handle complaints, an organisation needs a redressal mechanism. This is required
regardless of whether the conduct is considered illegal under the Indian Penal Code, 1860, or
any other applicable legislation.

7. REDRESSAL COMMITTEE:

This kind of redressal mechanism, or more accurately, this kind of complaint committee,
needs to be led by a woman and have a majority of female members. There ought to be a
counselling facility on the committee. Working with NGOs or other groups that are cognizant
of these concerns is also appropriate. Every year, the committee is required to provide a
report to the government detailing the progress of the topics it is handling.

8. 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.

CASE ANALYSIS
In the Vishakha case, the Supreme Court did something really important. They showed a
strong commitment to protecting fundamental rights laid out in Articles 14, 19, and 21 of the
Indian Constitution. This all happened because, after 1991, more women started working,
which was a good thing. However, along with this positive change, there was also an increase
in incidents of sexual harassment at workplaces. The problem was that there were no specific
laws to prevent or punish such behaviour.

This gap in the law made the Indian criminal justice system less effective, as many cases of
sexual harassment were not reported and, as a result, no action was taken. Despite the efforts
to bring more women into the workforce and promote gender equality, there was still a lack
of a safe working environment. NGOs and social workers recognized the seriousness of the
situation and took a collective approach to push the Supreme Court to go beyond its usual
role.

The outcome was the creation of the Vishakha guidelines, a significant set of rules aimed at
providing a legal solution for victims of sexual harassment. The court made it clear that
violations of gender equality were a direct violation of the right to life and liberty, referring to
international laws like the Convention on the Elimination of all Forms of Discrimination
against Women. The court was also influenced by the government's commitment to women's
rights at the 4th World Conference on Women in Beijing.

The Vishakha guidelines, combining Indian constitutional principles and international

influences, became a commendable remedy to address the legal gaps around sexual
harassment at the workplace. The court's proactive approach emphasized the importance of
understanding international agreements to create effective measures against sexual
harassment. This case significantly contributed to discussions on women's rights, workplace
safety, and the broader goal of achieving gender equality. Essentially, Vishakha showcased
the judiciary's dedication to adapting legal frameworks to tackle modern challenges and
ensure a safer and fairer environment for working women in India.

SIGNIFICANCE
The “Vishakha vs. State of Rajasthan”13 case holds immense importance due to its
transformative impact on addressing workplace sexual harassment in India. This legal
milestone emerged during a notable increase in gender equality in employment post-1991,
signalling a pivotal moment in the country's legal landscape. The absence of specific laws
dealing with sexual harassment created a significant gap, raising concerns about the
effectiveness of the Indian criminal justice system. Vishakha addressed this gap by
establishing a precedent that recognized the imperative of legal safeguards in the workplace.

The case not only interpreted fundamental rights under Articles 14, 15, and 21 of the Indian
Constitution but also drew inspiration from international legal frameworks, notably the
Convention on the Elimination of all Forms of Discrimination against Women (CEDAW).
This reflected a progressive approach, aligning India's legal practices with global standards.
The guidelines formulated by the Supreme Court in the Vishakha case provided a practical
framework to address and prevent instances of sexual harassment, thereby empowering
victims and fostering a safer working environment.

Beyond its legal implications, Vishakha showcased the collaborative efforts of non-
governmental organizations (NGOs) and social workers in influencing legal developments. It
became a rallying point for civil society activism, emphasizing the crucial role such groups
play in shaping legal discourse. The ongoing relevance of the case is evident in its impact on

13
(1997) 6 SCC 241
current legislation, with the Vishakha guidelines serving as a reference point for organizations
ensuring compliance with anti-sexual harassment measures.

Moreover, Vishakha acted as an educational tool, raising awareness among employees about
their rights and avenues for redressal. Its enduring significance is reflected in its role as a
guiding force in interpreting laws related to workplace harassment, contributing significantly
to discussions on women's rights, workplace safety, and the broader pursuit of gender
equality in India. In essence, the Vishakha case stands as a testament to the judiciary's
commitment to adapting legal frameworks to contemporary challenges, ultimately fostering a
more inclusive and secure environment for working women in the country.

CONCLUSION
In conclusion, the “Vishaka vs. State of Rajasthan”14 case holds a significant place in India's
legal evolution, tackling workplace sexual harassment. Amid debates on whether the
judiciary or legislature should take the lead, the case resulted in the Vishaka Guidelines, a
pioneering set of measures. Despite concerns about practicality and penalties, these
guidelines played a pivotal role in shaping the 2013 legislation. The case's enduring impact
underscores its pivotal role in pushing for gender justice, advocating for safer workplaces,
and acting as a guidepost for ongoing legal and societal advancements.

14
(1997) 6 SCC 241