Case Ananlysis: Vishaka

v/s. State Of Rajasthan

Sexual harassment is an unwelcome behavior of sexual
nature. Whether it be a developed nation or developing
nation or an underdeveloped nation, sexual harassment
at workplace is a widespread problem in the world. This is
a problem and it is universal which gives negative impact
on both men and women. The percentage of the
happening of sexual harassment is more to women when
compared to men. These kinds of violation will always
take place in spite of all the efforts taken to protect,
prohibit and prevent from happening. Sexual
harassments or unwelcome sexual advances, request for
sexual favors and other verbal or physical harassment of
a sexual nature can be included under harassment.

The word unwelcome does not mean involuntary. There

are certain cases in which the victim may give consent or
agree to certain conduct and they may actively
participate in it even though it is offensive and
objectionable. Hence, the sexual activities are said to be
unwelcomed only when the person subjected to it
considers it unwelcome. This depends on the
circumstance whether the person in fact welcomed a
request for date, sex-oriented comment or joke. When it
comes to sexual harassment at a workplace it can be
considered as a violation of women's right to equality, life
and liberty under the Indian constitution. Due to these
types of activities, it creates an insecure and hostile work
environment and this may discourage women's
participation in work and it adversely affecting their social
and economic empowerment and the goal of inclusive
growth. As a result of these sexual harassment cases
there raises a need for legislature enactment to address
the sexual harassment of women at workplace.

This was first observed by the Supreme court in the

landmark case of Vishaka vs. state of Rajasthan[1].
With the powers entrusted under Article 32 of the Indian
constitution, the Supreme court due to the absence of
any law at that time framed guidelines to be followed at
all workplaces or institution for providing measures to
check the evil of sexual harassment of working women
until the legislation is enacted for the same. After the
judgment and with the help of the guidelines framed by
the hon'ble Supreme court the legislature formulated the
sexual harassment of women at workplace (prevention,
prohibition and redressal) act, 2013. This paper throws
light on the facts and the judgment given by the Hon'ble
Supreme court in the Vishaka case.

Summary Of The Facts:

In the year 1985 a woman named Bhanwari Devi from
Bhateri started working under the women's development
project (WDP) which is run by the government of
Rajasthan. The employment position of Bhanwari Devi is
as a saathin which in Hindi means friend. As a part of her
job, in the year 1987, she took up an issue of attempted
rape of a woman from a neighboring village. The
members of the village gave their full support for the act
of Bhanwari Devi. She took up another issued which is
based on the government's campaign against child
marriage in the year 1992. But this campaign received a
disapproval and ignorance from the members of the
village.

The village members were aware of the fact that child

marriage is illegal and rejected the idea of the
government campaign. One of the family in that village
had made arrangement to perform a child marriage. Ram
Karan Gurjar is the one who planned a marriage for his
infant daughter. Bhanwari Devi try to persuade the family
not to perform the marriage because of the work
assigned to her, but all her attempts to stop the marriage
resulted in being futile. In spite of all the things done by
her the family decided to go ahead with the marriage.

The sub-divisional officer and superintendent of police

on May 5 1992 went to the village and stopped the
marriage of a infant girl. Notwithstanding the order of
police, the marriage was performed on the next day and
the police did not take any action against the marriage. In
the course of event the villagers found out that the visit
of the police was a result of Bhanwari Devi's actions. Due
to this Bhanwari Devi and her family was boycotted and
Bhanwari also lost her job. After that to seek vengeance
on 22nd September five men among them four from the
Gurjar family- Ram Sukh Gurjar, Gyarsa Gurjar, Ram Karan
Gurjar and Badri Gurjar along with the family there was
another one-man Shravan Sharma, they all attacked
Bhanwari Devi's husband and later brutally gang-raped
her.

The police delayed the investigation and tried all possible

ways to avoid filling any complaint against the accused.
After lot of struggles and facing so much criticism
Bhanwari Devi lodge a complaint. The medical
examination was also delayed and the examiner did not
mention any commission of rape in her report. Due to
lack of evidence and with the support of local MLA all the
accused managed to get an acquittal in the trial court. As
a result of this acquittal many women activists and
organizations came forward and supported Bhanwari
Devi. The organizations and women activists raised their
voice against the injustice and thus resulted in filling of a
public interest litigation. The PIL was filed by the group
called “vishaka”. The PIL was filled for the enforcement of
the fundamental rights of women at workplace under the
provision of article, 14, 15, 19, and 21 of the Indian
constitution. The PIL also raised the issue relating to the
need for protection of women from sexual harassment at
workplace.

Issues In The Case

 Whether sexual harassment at workplace amounts
to a violation of rights guaranteed under article14,
15, 19, and 21 of the constitution?
Whether the employer is responsible for the
happening of sexual harassment at his workplace?

Petitioner Contention:
The petition was filed by a group named vishaka and they
put their contention saying that the sexual harassment for
women at workplace violate the fundamental rights
guaranteed under article 14, 15, 19(1)(g) and 21 of the
constitution of India. Those articles guarantee the
following:

Article 14 gives equality before the law and equal

protection of law to all the persons
Article 15 prohibits the person from discrimination on
the grounds of religion, race, caste, sex or place of
birth.
Article 19(1)(g) allows a person to practice any
profession or to carry on any occupation, trade or
business.
Article 21 gives a person their right to life and
personal liberty[2].

Hence, the sexual harassment at workplace violates the

above mention rights given to the person under the
Indian constitution. The petitioner also stated the
loopholes that the legislation has regarding the provision
relating to the safe working environment for women. The
petitioner also requested the hon'ble court to frame
guidelines for prevention of sexual harassment at
workplace.

Respondent Contenton:
In this particular case the respondent counsel did
something unusual, the learned solicitor general
appeared on behalf of the respondent and he supported
the petitioner. The respondent counsel requested the
hon'ble court to find out an effective way to stop the
sexual harassment for women at workplace and also
wanted to frame guidelines for the prevention of the
same.

Judgement:
The article 14,19 and 21 of the Indian constitution
enshrines gender equality as a fundamental right. There
is a clear violation of gender equality by the sexual
harassment in the work place which in turn violates these
integral rights of the female class. In nations across the
globe the protection of females has become a basic
minimum requirement. When there is no domestic law to
curb the evil, the court could assist from the international
conventions and statues. The international conventions
and statues can be referred only to the extent that it does
not violates or does not contravene with any of the
provisions of domestic law or do not violate the spirit of
the constitution. This authority was given to judiciary
under article 51(c) and 253 r/w entry 14 of the union list
of seventh schedule of the constitution.

It was held by the hon'ble court that there was violation

of fundamental rights of the constitution and also
reiterated upon the fact that right to life under article 21
includes right to live with dignity. Therefore, the court of
law wanted to prevent the dignity of women at workplace
and framed certain guidelines which has to be followed. It
was clearly mentioned by the supreme court that the
guidelines should be treated as law. Due to the lack of law
which can prevent sexual harassment and which can
provide women with safe working environment the
hon'ble supreme court acknowledged the guidelines can
be considered as law.

Vishakha Guidelines:

The first and foremost thing is the employer's or

other equivalent authorities are bound to preclude
such incidents of sexual harassment from
happening.
There has been a change in the definition of the term
sexual harassment.
The employer's or other authorities who is in charge
must take preventive measures like notification or
circulars mentioning the prohibition of sexual
 harassment and penalties mentioned by the
government against the offender.
These types of offences fall under the purview of
Indian penal code of 1860.

Critical Analysis:
The great step was taken by the hon'ble Supreme court
through the vishaka case, towards the women
empowerment by issuing guidelines to curb sexual
harassment at workplace. Due to the absence of
domestic law the hon'ble Supreme court took references
from various international conventions and laws. After
that the hon'ble Supreme court connected it to the law of
the land and gave a new law altogether. The Indian
judiciary has put a lot of efforts to safeguard women on
this particular case and this is commendable. As a result
of vishaka guidelines there is a strong legal-platform for
all the women to fight against sexual harassment boldly.
In the past sexual harassment cases were looked upon as
petty matters but the vishaka case changed the outlook
of sexual harassment cases as a serious issue.

Every positive has its own negative, when we look into

the case in our hand, we can figure out that the Indian
judiciary have tried to overcome the social evils of gender
discrimination and sexual harassment by providing an
employment opportunist and making provisions in the
law, but it was failed in taking social responsibility for an
equally safe working environment. There are many sexual
harassment incidents taking place on a regular basics but
many of them are not reported. Even in educational
institution there are lot of sexual harassment and many of
the students are afraid to file a complaint against the
institution and in some of the cases the students are
afraid to share such incident to their fellow colleagues. In
the recent times the Chennai police arrested a teacher for
sexual harassment of the student. Why the women are
afraid to lodge a complaint? For example, we can take a
woman who finally gets her dream job.

During her job she was harassed by her coworker and

she decided to file a complaint against the person who
harassed her but she did not. She was worried that if she
lodged a complaint against, she may not be able to
continue working. Her family may stop her from working
and there is a possibility that her total career my loss
because of that one particular complaint she filed. The
family stops her from working because they think that
there is a possibility that she might be harassed again.
This view will change only when the people feel that the
working environment is safe for their family women to
work. Though we have remedies for the women who have
been sexually harassed and the person who harassed get
punishment under the law, but there is no safety is
assured and even after so many years the sexual
harassment has been happening again and again.
Conclusion:
One of the most gifted pieces of law the court has ever
enacted in the history is vishaka judgment. This is
because the court on seeking the importance and the
necessity for enactment of the law came directly into the
ground to frame such guidelines which would ensure that
no such act of harassment against women goes
unpunished. This judgment is a landmark judgment not
only because it laid guidelines which has to be followed
but it also does not hesitate to refer international law
when there is a absence of domestic law.

By the combined reading of article 253 read with entry 14

of union list in seventh schedule the hon'ble supreme
court found its authority to issue such guidelines. In the
vishaka judgment the constitutional principles of equality
and liberty have been upheld by the Hon'ble Supreme
court of India. It is also important to note that the true
spirit of judicial activism has been portrayed in this
judgment and it has set an example to other nations.

End-Notes:

1. (1997) 6 SCC 241.

2. Constitution of India.

Award Winning Article Is Written By: Ms.Aiswarya

Lakshmi.J.S
Authentication No: JA200993390393-09-0122