CASE COMMENT

Vishaka and Ors. v. State of Rajasthan AIR 1997 SC 3011

PETITIONER: Vishaka and Ors.
Vs
RESPONDENT: State of Rajasthan
DATE OF JUDGEMENT: 13.08.1997
CORAM: CJI Sujata V. Manohar, B.N. Kirpal
SUPREME COURT OF INDIA

FACTS: The reason behind filing of the petition was the

enforcement of the fundamental rights (specifically the rights of
working women) guaranteed under Article 14, 19 and 21 of the
Indian Constitution. Bhanwari Devi, who was a child rights activist
and social worker spearheaded the “Stop Child Marriage in
Villages” programme that was run under the administration of
Government of Rajasthan. On one such missions, where she tried
to stop the marriage of Ramkaran Gujjar’s Daughter who was less
than a year old, she failed to do so. Ramkaran Gujjar held a grudge
on her due to her efforts on stopping the marriage and in
September 1992, he along with his friends, gang raped Bhanwari
Devi in front of her husband. The only doctor at the primary health
care centre refused to treat her. The doctors at Jaipur only
confirmed her age without making any reference to rape in the
medical report. The women constables at the police station
constantly taunted her while the Inspector asked her to leave
behind her lehenga as an evidence which made her return to her
village in her husband’s blood stained dhoti. The trial court
acquitted the accused but Bhanwari Devi didn’t stop fighting for
justice. She appealed in the High Court where the bench stated that
“It is a case of gang rape which was committed out of vengeance”.
This statement infuriated women right’s organisations which led
to NGOs filing petitions in the Supreme Court of India.
ISSUES: Whether there’s a stringent need for implementation of
guidelines and procedures for tackling sexual harassment or abuse
that women face at their workplaces?
ARGUMENTS: - The counsel argued that guidelines for preventing
sexual harassment at workplaces must be implemented as not
doing so violates the constitutional safeguards provided by virtue
of Article 14, 15 and 21 of the Indian Constitution.
-They highlighted the importance of providing the internationally
recognised right to work with dignity and how gender equality also
subsumes the right under its umbrella.
- It was argued that the court is obligated under article 32 of the
Indian Constitution for the enforcement of fundamental rights in
case of absence of legislation, also referred to in the “Beijing
Statement of Principles of the Independence of Judiciary” in the
LAWASIA region as the role of judiciary.
- The Article 11 of the International document, Convention on the
Elimination of all forms of Discrimination against Women was also
highlighted in the argument. Article 11 states that: “State parties
shall take all appropriate measures to eliminate discrimination
against woman 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”
JUDGEMENT: The judgment was pronounced by Chief Justice
J.S.Verma, on behalf of Justice Sujata Manohar and Justice
B.N.Kirpal.
-Observed that right to work, carry on any profession, trade or
business is a fundamental right of a woman guaranteed by the
constitution of India.
- It is the duty of the employer to provide safe working conditions
and environment to women.
- Laid down certain guidelines that came to be known as “Visakha
Guidelines” that were supposed to be followed by employers to
prevent sexual harassment of employees till the time a legislation
is drafted on the matter.
-The guidelines talked about the employer’s duty towards his/her
employee, steps that could be taken to prevent sexual harassment,
disciplinary actions that can be followed, methods to create
awareness, complaint procedure and mechanism etc.
-The Supreme Court stated that the sexual code at every workplace
be treated as a declaration of law under article 141 of the
Constitution.
ANALYSIS: The clear examination of the facts of the case shows a
grim scenario that working women or women in general face in the
Indian sub-continent that has more than once been touted as one
of the top five most unsafe countries for women. It shows the
appalling attitude displayed towards rape victims in law
enforcement agencies as well as health care centres. The doors of
justice are closed much before one can approach it. It is by the
virtue of the courage of a woman like Bhanwari Devi that a court
got a chance to consider for the first time a very important question
of safety of women at workplaces. The reason why this case is
important to be focused on is because it shows how law and
legislation must take turns with the turn of time. In modern times
when we talk about ensuring gender equality we see many women
stepping out of the threshold of their houses to practice their right
to work and this right must be provided to them even if they create
obligations on the state to protect the dignity of these women by
preventing sexual harassment at their workplaces. Few years
later, the Visakha Guidelines served as frame of reference for
drafting the “Protection of Women against Sexual Harassment Bill,
2010” which was then introduced in the parliament. The bill
defined the ambit of Sexual harassment at workplaces. It suggested
formation of an Internal Complaints Committee(ICC) at every
workplace with 10+ working force. The district officer is supposed
to establish a local complaints committee at district level. The
complaint committees hold power equal to civil courts in terms of
collecting evidence. The bill also mentions penalties for certain
acts. The major issues with this bill are: It doesn’t sound feasible to
have a ICC at every branch and office. It gives the ICC power equal
to civil courts but doesn’t make it compulsory for the members of
the committee to have a legal background. It talks about the
consequences of a false complaint and this might prevent women
from reporting cases of sexual abuse and the most deterrent flaw
that this bill has is that it doesn’t address the sexual harassment or
abuse that men face. Finally, in 2013, the bill was passed which
resulted in establishment of Prevention of Sexual Harassment at
Workplace Act, 2013. This shows the power of judicial activism in
a democratic country like India. This case served as an impetus for
the Indian law makers to finally address the question of a woman’s
right to life with dignity and her right to practice any occupation,
trade or business. We can conclude by remembering a quote by
Justice Arijit Pasayat which is- “While a murder destroys the
physical frame of the victim, a rapist degrades and defies the soul
of a helpless women”.
 KIIT SCHOOL OF LAW

LEGAL RESEARCH WRITING

CASE COMMENTARY

Submitted by:
Arya Senapati
1883160
B.A.LLB(Hons) Sec-B

Submitted to:
Ms. Mitul Dutta
Mrs. Shreya Chatterjee
Faculty, KiiT School of Law