Vishaka v. State of Rajasthan 

Estimated Reading Time: 11 minutes

Introduction 

The uninvited sexual conduct or mannerisms are offensive or humiliating; this conduct is called sexual harassment. It can be written, verbal or physical, and can happen to any individual physically or via any other mode. Both men and women are the sufferers of sexual harassment. When it happens at work, school or any other places, it may amount to discrimination on the grounds of sex.

If someone is sexually harassing you, that causes you to feel shame, pain or fear and can be considered sexual assault if you think or have a reason to believe that you have been sexually assaulted. Sexual harassment is the most common form of harassment in our country. 

It affects both mentally and physically the victim. Sexual harassment is not restricted only from male to female abuse goes to female sexual harassment, male-to-male sexual harassment, and female-to-male sexual harassment. This act may be strictly in its punishment, but it scars down the life of the victim. 

Sexual Harassment is often neglected as it is not termed as Rape so people tend to ignore this importance of this term. We should realize sexual harassment at any place is a wrong and one of worst wrongs to humans.

We often hear stories,  read cases about all this but ignore it when it happens right in front of our eyes. 

Sexual harassment at a workplace is considered a violation of women’s right to equality, life and liberty under Article 21 of the Indian Constitution[1].

It performs an unconfident work atmosphere, which demeans the participation of women in work. Thereby prejudicially affecting their social and economic development and the goal of progressive growth. Sexual harassment is a severe issue outside our country, as well. For instance, the U.S. Equal Employment Opportunity Commission (EEOC) says that it is against the law to harass a person because of that person’s sex.

In our country, it was only after 16 years of Vishaka’s case[2]  that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013[3] was passed. It was done to provide safety against the sexual harassment of women at the workplace. For the prevention of complaints of sexual harassment 

The act’s necessary characteristics are that it puts up the setting up of Internal Complaints Committee at every office of the organisation or school or colleges, having more than ten employees, hearing and accepting complaints about sexual harassment.

Facts of the case 

A lady named Bhanwari Devi, from Bhateri, Rajasthan, started working under the women development project, which was conducted and managed by the Government of Rajasthan in 1985. She was employed as a friend of the state. Two years later,  as a part of her work, she took up support for an attempted rape of a woman who stayed in a nearby village. She got total backup from all the people from her village.

In 1992, she stood up for another cause against child marriage as a part of the government. But this time, things were not similar as it was not approved by the village members and was completely ignored by some people even though they were aware that child marriage was illegal.

While all this was going on, a family had made arrangements to perform a child marriage of their infant daughter. Bavaria was aware of her work; she tried to change the family’s decision, but her attempts were a complete failure. After some days, the police went on to stop the child marriage, but they were late as marriage had already taken place. At the same time, the police took no action against the groom’s family and the bride. After some days, the villagers also discovered that the police came because of Bhanwari, and they boycotted her. She lost her job due to all of this.

After about two months, for seeking revenge, 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 assaulted her husband and later brutally gang-raped her. The police tried to save the accused and all possible actions to prevent the complaint against the accused, who kept on delaying the investigation. After having so many issues, Bhanwari Devi, with her courage to get justice, managed to complain. The medical test slowed-down for fifty-two hours. However, the examiner did not mention any happening of rape in the report.

The accused got acquitted from trial court with the help of the political power, which resulted in women activists protesting and further by an NGO named Vishaka filed a PIL.

It emphasised the implementation of women’s fundamental rights at the workplace under the provisions of Article 14, 15, 19, and 21 of India’s Constitution; it also raised the requirement for the protection of women from sexual harassment.

Issues Raised

The issues before the Court of the law were:

  • Whether sexual harassment at the workplace adds up to violation of the Rights of Gender Inequality and 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 duty of care when sexual harassment is done from its employees? 

Contentions from Petitioner 

The Petitioner in the instant case was an NGO named Vishaka. It was a writ petition filed pleading for a writ of mandamus. This NGO comprises women activists, NGO’s as well as other activists. The petition was filed under Art. 32, when the bail was awarded to the accused. 

The arguments pleaded by the Petitioner were the inhumane acts done by accused of sexual harassment in the workplace as these acts violate the fundamental rights which are protected under Article 14, 15, 19(1)(g) and 21 of the Indian Constitution[4]

The Petitioner also brought the Hon’ble Court’s concentration to the aperture that the legislation has concerning the law of a safe working atmosphere for women. The petitioners prayed before the Hon’ble Court to issue frame guidelines for preventing sexual harassment at the workplace. 

Contentions from Respondent 

The well respected Solicitor General had arrived at the Court as the Respondent for the Union of India and contributed significant assistance in a Law Officer’s morality to help us find a correct result to this social problem of substantial magnitude. Something unusual happened in this case, and that was when the respondent supported the Petitioner’s contentions. With a bona fide intention, the respondent helped the court frame important guidelines for preventing sexual harassment. The respondent even helped the Amicus Curiae and did the best possible for making strict laws.

Summary of the Judgment 

The Hon’ble Supreme Court of India recognised the absence of a statute that could end sexual harassment and ensure that women work in a very safe atmosphere. Section 354 and 354A of the Indian Penal Code, 1860[5] were to be referred in any case of sexual harassment, but these laws were not particular to the issue at hand. The Court indeed realised the requirement for genuine and practical codified law dealing with sexual harassment. 

Chief Justice J.S Verma articulated the judgment of Vishakha’s case as a spokesperson of Justice Sujata Manihar and Justice B.N Kripal on account of the writ petition which Vishakha filed, the victim of this case. The Court took note of the fundamental rights mentioned under Article 14[2], 19[3](1)(g) and 21[4]of the Constitution of India[6] that every occupation, education or trade should provide a safe working atmosphere to the employees. 

Equality in utilisation can be seriously impaired when women are subjected to gender-specific violence, such as sexual harassment in the workplace. The Court was dependent on Nilabati Bahera v. State of Orissa 1993(2) SCC 746[7], which gave us the precedent that help from international conventions can be taken when necessary and required for giving justice or setting up guidelines. The Court was firm in its decision of taking help from these conventions.

One of the ideal situations of such an act is also the violation of the victim’s fundamental right under Article 19(1)(g) to practice any profession or to carry out any occupation, trade or business[8]. Such acts, therefore, carry forward the treatment under Article 32 for the applicability of these fundamental rights of women. Not only this, but there might be a few Article 15, Article 42, Article 51A and Article 253, which are of use in the instant case.

The significance and importance of the Constitution of India’s fundamental rights are of sufficient power to remove all the problems of gender equality, including the prevention of sexual harassment or abuse. Independence of Judiciary forms a part of our constitutional scheme[9]. From the respondent side, even the Solicitor General is even ready to provide full support to Amicus Curiae and the Court.

The Government of India has also made an formal declaration to form a national strategy on women who will keep on guiding the work at every possible circumstance. In every department, the Commission for Women’s Rights to enable as a public defender of women’s human rights and nationalise the systematic procedure to look into the action.

Forgiving this judgement, the Hon’ble Court took backing from the international conventions to progress with the case. The Court took reference from the Beijing Statement of Principles on the independence of Judiciary in the LAWASIA region to function as a guardian of people’s remedies and independently make laws in the absence of any legislative framework[10]. Then the Hon’ble Court took support from the Convention’s provisions on the Elimination of All Forms of Discrimination against Women (CEDAW)[11].

The Court said that these incidents of sexual harassment hamper the right to life and the right to live a dignified life under Article 21. The essentials were that there should be the requirement of a safe working atmosphere at the workplace. The Hon’ble Court formulates the guidelines to prevent sexual harassment at the workplace, known as Vishaka Guidelines.

These guidelines stated:

  • To resolve sexual harassment issues in the workplace, there should be proper awareness among the office.
  • A company or a group must have a redressal mechanism to address the complaints; these redressal mechanisms, or more precisely, such a complaint committee must have women as more than half of its members and its head must be a woman[12].
  • Employers or individuals i.e. the head of the workplace must take essential care of employees. 
  • Suppose the crimes happening are the ones that fall under the category of the Indian Penal Code, 1860. In that case, the manager is forced to take prosecutorial action by grumbling to the appropriate authority.
  •  The organisation should take care of the disciplinary action

 against the offender.

After this judgement, the Hon’ble Court defined the word Sexual harassment in a well-codified manner. The definition mentioned that any physical touch or conduct or showing of pornography, any unpleasant taunt or misbehaviour, or any sexual desire towards women, sexual favour or any other kind of activity that demeans women’s modesty come under the extent of sexual harassment.

Analysis of the Judgement 

Through Vishaka v. State of Rajasthan, the Court set up many precedents and took a very significant step for the empowerment and uplifting of women. Not only in our country but across women are a weaker sex. They are not seen as equal to the mail. The important thing about this judgment is that it has been passed without fewer provisions in our country and tend to make the government aware of laws that protect the integrity and right to live with women’s dignity. The Hon’ble Court took the recommendation from various international conventions and provisions, then connected it to the law or in the present situation by further giving birth to a new direction altogether.

The Hon’ble Court, through the guidelines, issued and contributed through a strong legal-stand for all the women to attack sexual harassment. This case modified the forthcoming towards sexual harassment cases as significant issues, and it is not like earlier times when patients were not the same. Even though today’s time law is present, its implementation is as tricky as we can see that there are many cases of sexual harassment taking place daily, which is not registered or even in the Court because of lack of evidence the guilty one sets free. The accused, if found guilty, should be imprisoned for what has done and to see to it that he does not repeat it. However, there are options available with the law for women facing sexual harassment at the workplace. They will take a fine from the accused of conducting sexual harassment. In case the sexual harassment is driven by strangers, the person-in-command of that institution must take stern action for the commission of such crime. The Sexual harassment happening inside workplaces has created an atmosphere not worth living for women, making their lives difficult. 

Conclusion 

The Sexual Harassment of women at her work happens at a very repeated rate in India. If any severe action is not taken against this crime, it will directly affect women’s working restrict in India. On the other hand, it will affect the economic situation of India. The Hon’ble Supreme Court of India has upheld the constitutional principles of equality and liberty under Article 14,15 and 21 in the Vishaka Judgement. The judgement has shown that even though the society’s mindset was patriarchal, there was also a judiciary with whom several trusts were relied upon.

The establishment of a law against sexual harassment has motivated many women to elevate their voices against the torch. It also gave hopes to all the people who go through any such sexual trauma in their daily life. The government should make strict provisions regarding the loathing of sexual harassment at the workplace because it should see that men or women also comprise this country’s employed inhabitants.

It should be abolished to prevent the confidence, privacy and respect of women. The institutions shall execute various new approaches and skills to control their women employees from such social evil. Bhanwari Devi was a compelling woman who did all she could to save her and her family’s life as well; even suffering so much, she still had faith in police and law just like all other individuals should have. Her courage tells us that our Judicial system ensures justice and follows the principle of justice and equity.

The whole case talks about how a patriarchal society faces specific issues with no public, moral or any support, even after getting raped then; also, going ahead and lodging an FIR against the accused shows how courageous and brave Bhanwari was. The Court, through this case, has set an example that when a wrong has happened against any individual in the entire country, then the current provisions come forward to protect the fundamental rights of that person. Still, if there is no such provision regarding the present scenario, then the Court takes international conventions to watch that particular individual’s right to life and dignity. 


[1] The Constitution of India, 1949, Article 21.

[2] Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

[3] The Sexual Harrasment of women at workplace(Prevention, Prohibition and Redressal) Act, 2013. 

[4] The Constitution of India, 1949, Article 14, 15, 19(1)(g) and 21.

[5] The Indian Penal Code, 1860, s. 354 and 354A.

[6] The Constitution of India, 1949 Article 14[2], 19[3](1)(g) and 21[4].

[7] Nilabati Bahera v. State of Orissa 1993(2) SCC 746.

[8] Nirali, Freedom of Business, Trade and Profession, Legal services India, http://www.legalservicesindia.com/article/2272/Freedom-of-Business,%20-Trade-and-Profession.html

[9] Riya Jain, Article 21: Understanding The Right to Life and Personal Liberty from Case Laws, Academike Explainer, 12th August 2021, https://www.lawctopus.com/academike/article-21-of-the-constitution-of-india-right-to-life-and-personal-liberty/

[10] Sanjay Jain, Saranya Mishra, Scandalizing the judiciary: An analysis of the uneven response of the Supreme Court of India to sexual harassment allegations against judges, International Journal of Constitutional Law, Volume 18, Issue 2, July 2020, https://academic.oup.com/icon/article-abstract/18/2/563/5880197?redirectedFrom=fulltext

[11] Convention on the Elimination of All Forms of Discrimination against Women New York, 18th December, 1979, https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx

[12] A.W. Geiger and Lauren Kent, Number of women leaders around the world has grown, but they’re still a small group, 8th March, 2017, https://www.pewresearch.org/fact-tank/2017/03/08/women-leaders-around-the-world/

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