UNIVERSITY INSTITUTE OF LEGAL STUDIES,

PANJAB UNIVERSITY, CHANDIGARH

CASE LAW: Vishaka vs State of Rajasthan AIR 1997 SC

A project report submitted as a part of internal assessment of the course B.A. LL.B.
(Hons.) in the subject of International Human Rights for the session 2023-24.

SUBMITTED TO: SUBMITTED

BY:

Miss Annanya Rishi

Dilkashdeep Singh

82/19

B.A. LL.B. (Hons.)

Section B

9th semester

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 ACKNOWLEDGEMENT
The detailed project on the case law of “Vishaka vs State of Rajasthan AIR 1997”
would not have been possible without the kind support and help of many individuals.
I would like to extend my gratitude to all of them.

I am highly indebted to Miss Annanya Rishi for her guidance and constant help as
well as for providing necessary information regarding the project and also for his
support in completing the project.

I would also like to express my gratitude to my parents and friends for their kind
cooperation and encouragement which helped me in completion of this project.

A sincere thanks to all of them.

-Dilkashdeep Singh

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CONTENTS

SYNOPSIS

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The case of Vishaka v State of Rajasthan1 is a landmark judgement in the sense that
it paved the way for Sexual Harassment guidelines and accepted International
Conventions and norms in the absence of a specific legislation. The case analysis
vividly brings out the essence of this case.

INTRODUCTION
Vishaka’s case of Sexual Harassment at workplace is a case of landmark judgement
by Supreme Court of India. It is a landmark case because for the first time ever, it
was officially recognized at such a high level of need for laws for sexual harassment
and laying down of guidelines of sexual harassment of working woman. The
Supreme Court in the case of Vishaka v. the State of Rajasthan laid down for the
first-time strictures that aimed at protecting a woman employee by giving her right to
a safe/healthy working environment. In the decision, the Court also defined sexual
harassment and recognized it to be a paramount violation of human rights. The court
thereby laid down certain mandatory and binding guidelines to be followed by all
workplaces, belonging to the public and private sectors and made it imperative for
every employer to ensure a safe, harassment free working environment for the
women. These strictures can be applied to educational institutions as well. These
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1997 SC
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strictures were based on conventions of which our country is a signatory and human
right which are inalienable for any human being.

What is sexual harassment?

Sexual harassment is unwelcome sexual behaviour that is offensive, humiliating or

intimidating. It can be written, verbal or physical, and can happen in person or online.

Both men and women can be the victims of sexual harassment. When it happens at
work, school or university, it may amount to sex discrimination.

What does it include?

o touching, grabbing or making other physical contact with you without your
consent

o asking you for sex or sexual favours

o leering and staring at you

o making sexual gestures or suggestive body movements towards you

o cracking sexual jokes and comments around or to you

o questioning you about your sex life

o insulting you with sexual comments

o committing a criminal offence against you, such as making an obscene phone

call, indecently exposing themselves or sexually assaulting you.

FACTS OF THE CASE

Bhanwari Devi, a woman belonging from Bhateri, Rajasthan was a social worker
(Saathin) at rural level in Women’s Development Programme initiated by the
Government of Rajasthan, in the year 1985 aiming to curb the evil of child marriages
in village. She was employed as a ‘Saathin’ which means ‘friend’ in Hindi.

In the year 1992, as part of her work, Bhanwari Devi, tried to stop Ramkaran Gujjar’s
infant daughter’s marriage and she took up an 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.

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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. Later, it was
established by the villagers that the police visits were a result of Bhanwari Devi’s
actions Nevertheless, marriage took place but Bhanwari Devi was not forgiven for
her efforts to stop the marriage. She was subjected to social boycott and Bhanwari
also lost her job.

On 22nd September 1992, to seek revenge, she was gang raped by five men from
Gurjar family including RamKaran Gujjar in front of her husband.

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
lodge a complaint. The medical examination was delayed for fifty-two hours. The
only male doctor in the Primary Health Centre refused to examine Bhanwari. At the
police station too, the women constables taunted her throughout the night. It was
past midnight when the policemen asked Bhanwari to leave her lehenga behind as
evidence and return to her village. She was left with only her husband’s bloodstained
dhoti to wear. 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 and she was determined to fight further and get justice.
Her fighting spirit inspired fellow saathins and they launched a concerted campaign
for justice for Bhanwari.

On December 1993, the High Court said, “it is a case of gang rape which was
committed out of revenge”.

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These organizations came together and raised their voice to attain justice, which
resulted in the filing of a Public Interest Litigation (PIL) in the Supreme Court of India.

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 Article 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.

The court to give certain directions regarding the sexual harassment that women
face at the workplace. The result is the Supreme Court judgement, which came
on13th August 1997, and gave the Vishaka guidelines.

ISSUES INVOLVED
The case involved multiple legal issues. In the absence of a detailed law regarding
Sexual Harassment of Women at Workplace, a lot of emphasis and deliberation was
assigned to the legal issues involved on this case. Those legal issues are as follows:

1) Whether sexual harassment at the Workplace amounts to a violation of Rights

of Gender Inequality and Right to Life and Liberty?

2) Can International Conventions and norms be used to provide justice in the

absence of a Specific legislation in a particular area of law?

3) Whether the employer has any responsibility when sexual harassment is done
to/by its employees?

CONTENTIONS OF THE PARTIES

Although the judgement does not provide separate arguments made by both parties,
some arguments were to consider while delivering the judgment:

By the Petitioners:

A writ petition, seeking the writ of mandamus was filed by the ‘Vishaka’ group which
comprised of various women’s rights activists, NGOs, and other social activists. They
put forward their argument that the indecent acts of sexual harassment of women at
Workplace violate the fundamental rights enshrined under Article14, 15, 19(1)(g) and
21 of the Constitution of India. The petitioners requested the Hon’ble Court to frame
guidelines for preventing sexual harassment at Workplace.
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By the Respondents:

The learned Solicitor General appearing on behalf of the respondents (with their
consent) in this case did something unusual i.e., supported the petitioners. The
respondent assisted the Hon’ble court in figuring out an effective method to curb
sexual harassment and in structuring the guidelines for the prevention of the same.
Fali S. Nariman – the amicus curiae of the Hon’ble court along with Ms. Naina Kapur
and Ms. Meenakshi provided assistance to the Hon’ble court in dealing with the said
case.

JUDGMENT
The judgment was delivered by Chief Justice J.S.Verma, on behalf of Justice Sujata
Manohar and Justice B.N.Kirpal, on a writ petition which was filed by 'Vishaka. The
court held that there was a clear violation of Articles 14, 15, 19(1) (g) and 21. It also
focused on issues regarding gender equality, asserting that gender equality includes
protection from sexual harassment and the right to work with dignity. In the absence
of specific legislations in this regard, international conventions and norms have to be
considered.

Article 14: Equality before the law

Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or

place of birth

Article 19 (1)(g): Right to practice one’s profession, or to carry on any occupation,

trade or business

Article 21: Right to life and personal liberty

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
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Judiciary 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 Convention on the Elimination of
All Forms of Discrimination against Women (CEDAW) 2. They were-

Article 11 (1) (a) & (f): State parties takes all appropriate measures to eliminate
discrimination against women in the field of employment in order to ensure, on a
basis of equality of men and women, the same rights, in particular:

(a)The right to work as an inalienable right of all human beings;

(f) the right to protection of health and to safety in working conditions,

including the safeguarding of the function of reproductions.

Article 24 states that the State shall undertake to adopt all necessary measures at
the national level aimed at achieving the full realization of the rights recognized in the
present convention.

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)3

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. They must prevent or deter the acts of
sexual harassment and provide the procedure for resolution, settlement or
prosecution of the acts of sexual harassment by taking all the steps required.

DEFINITION– For this purpose “Sexual Harassment” means disagreeable

sexually determined behaviour direct or indirect and it includes-

o Physical contact and advances

o A demand or request for sexual favours

2
Convention on the Elimination of All Forms of Discrimination against Women 1929
3
https://indiankanoon.org/doc/1031794/
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 o Sexually coloured remarks

o Showing pornography

o Any other unwelcome physical, verbal or non-verbal conduct of sexual

nature.

MEASURES FOR PREVENTION–

o Express prohibition of sexual harassment through notification,

publication and circulation in appropriate ways.

o Rules/regulations of government and public sector should include

rules/regulations prohibiting sexual harassment and provide for
appropriate penalties.

o Appropriate conditions with respect to work, leisure and hygiene to

further ensure that there is no hostile environment.

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 appropriate action by complaining to the appropriate
authority.

DISCIPLINARY ACTION– If there is an occurrence of the 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 of a
counselling facility. It is also acceptable to collaborate with NGOs or any such
organisations which are well aware of such issues. A report must be sent to the
government annually on the development of the issues being dealt by the
committee.

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 WORKER’S INITIATIVE– The workers must be allowed to raise issues of sexual
harassment in worker’s meetings and affirmatively discuss them in employer-
employee meetings.

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. Guidelines must be
notified to the workers in case of any change in them.

The court ruled that these guidelines will remain in force unless a specific legislation
is made. They must be strictly observed at all workplaces.

MAIN REASONS FOR REACHING THE DECISION

Prominent reasons for reaching the decision:

Violation of Articles 14, 15, 19(1) (g), and 21 of the Constitution.

Absence of an enacted law for Sexual Harassment of Women at workplaces.

Due considerations to Article 42, 51A 51and 253 of the Constitution.

Beijing Statement of Principles of the Independence of Judiciary in LAWASIA

Region.

CEDAW Regulations.

4th World Conference on Women in Beijing.

The main reason of the Supreme Court in reaching the judgement or

formulation of guidelines was the absence of an enacted law to provide for the
enforcement of basic human rights of gender equality and guarantee against
sexual harassment and abuse, more particularly against sexual harassment at
workplaces. The case was also a violation of Fundamental Rights (Articles 14,
15,19, 21). The judges also considered other articles from the constitution of
India. Article 42 of the constitution provides for just and humane conditions of
work and maternity relief, while Article 15 includes prohibition of discrimination on
grounds of religion, race, caste, sex, or place of birth. The Judges also
considered international treaties and conventions. The Articles in the constitution
which gave effect to such considerations are Article 253 and Article 51. Article
253 talks about legislations for giving effect to international agreements. The
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 enabling power of Parliament to make laws for implementing International
Conventions and norms is by virtue of Article 253 read with Entry 14 of the Union
List.4

A very pertinent reason in reaching the decision was the role of judiciary
envisaged in Beijing Statement of Principles of the Independence of Judiciary in
LAWASIA Region. This statement talked about the Objectives of Judiciary which
the court wanted to hold high through its judgement. Another prominent reason is
the norms laid down in “Convention on the Elimination of all forms of
Discrimination against Women (CEDAW)”. This convention had been ratified by
the Government of India, except with some reservations. The main Articles of this
conventions relevant in the present case were Articles 11 and 24. It pointed out
that equality in employment can be seriously impaired when women are
subjected to gender specific violence, such as sexual harassment at workplaces.
According to the Supreme Court: “It is now an accepted rule of judicial
Construction that regard must be given to international conventions and norms
for constructing domestic law when there is no inconsistency between them and
there is void in the domestic law.”5

CRITICAL ANALYSIS
Through the Vishaka Case, the Hon’ble Supreme Court of India took a great step
towards the empowerment of women by issuing guidelines to curb sexual
harassment at Workplace. The Hon’ble court took reference from various
international conventions and laws in the absence of domestic law, then connected it
to the law of the land and gave birth to a new law altogether. The efforts put in by the
Indian judiciary, in this particular case to safeguard women is commendable. The
Hon’ble Court through the Vishaka Guidelines provided a strong legal-platform for all
the women to fight against sexual harassment boldly. The Vishaka case changed the
outlook towards sexual harassment cases as serious issues, unlike the past when
such cases were looked upon as petty matters.

Like every coin has its two sides, based on the Vishaka case, one can figure out that
though India tried to overcome the social evils of gender inequality and sexual
4
M.P. Jain, Indian Constitutional Law (7th ed. 2014)
5
L.I.C. of India v. Consumer Education and Research Centre, AIR 1995 SC
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harassment by providing employment and provisions of law, it did not succeed in
taking social responsibility for an equally safe working environment. Even after
having the law on our side to safeguard women, there are many incidents of sexual
harassment taking place regularly which get unreported.

As a small example, let us assume that a woman finally gets her dream job in a
software company. The woman is subjected to sexual harassment due to some
reason. She wants to go and lodge a complaint against the one who harassed her,
but she chooses not to do it. She is worried that if she complains, then she might not
be able to continue working in the company because her family members might stop
her. Why? Cause the family fears that the woman has been harassed once, so she
might be harassed again. The concern of people even today is that the female of
their house must learn to adjust until she is in a “safe” environment according to their
parameters. Not that the person who harassed her must be punished for what he
has done and to see to it that he does not repeat it. Though there are remedies
available with the law, for women facing sexual harassment at Workplace, the
“safety” is not assured even after so many years.

CONCLUSION
The decision of supreme court in this landmark case had a vast impact on the Indian
judiciary and upcoming laws in this regard. The definition laid down in the guidelines
also made women aware of their rights and under the discussed laws. The
constitutional principles of equality and liberty have been upheld by the Hon’ble
Supreme Court of India in the Vishaka Judgement. Government and employers
should ensure that women should be treated equally and gender discrimination
should not take place at the workplace. Effective implementation of the policies can
reduce the manifestation and mutilation of the sexual harassment to the minimum.
One organisation can alter its approach to handle sexual harassment by viewing
other organisations tactic. This will reduce or eliminate glitches caused by this
harmful transgression. Government should understand that separate laws may not
bring about equality in gender relations but a law dealing with sexual harassment
would provide women immense support in their struggle.

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The inception of the law against sexual harassment has inspired many women to
raise their voices against the suffering that they were silently subjected to until the
year 1997.

Vishaka Guidelines formed the basis for the establishment of The Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013. The true spirit of Judicial Activism has been portrayed in the Vishaka
Judgement and it has been an inspiration to other nations. The judgment not only
provided justice to women but also upheld the sanctity of the fundamental rights
enshrined in the Indian Constitution.

REFERENCES
o H.O, Aggarwal, Human Rights, Central Law Publications, 2014

o S.K. Kapoor, International Law and Human Rights, Central Law Agency, 2014

o https://indiankanoon.org/doc/1031794

o https://blog.ipleaders.in/

o https://www.legalbites.in/

o https://www.legalserviceindia.com

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