UILS, Panjab University

`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.Com. LL.B.
(Hons.) in the subject of International Human Rights for the session 2023-24.

SUBMITTED TO: SUBMITTED BY:

Mr. Agampreet Singh Ravneet Kaur

332/19

B.Com. LL.B. (Hons.)

Section F

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 Mr. Agampreet Singh for his 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.

-Ravneet Kaur

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CONTENTS

Sr. no. Particulars Page no.

1. Synopsis 4

2. Introduction 5
o About the case
o What is sexual harassment?

3. Facts of the case 6-7

4. Issues involved 8

5. Contentions of the parties 9

6. Judgment 10-11

7. The Vishaka Guidelines 1997 12-14

8. Critical analysis 15

9. Conclusion 16

10. References 17

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SYNOPSIS

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.

VISHAKA & ORS. V STATE OF RAJASTHAN &

NAME OF THE CASE
ORS.

CITATION OF THE CASE (1997) 6 SCC 241

NAME OF THE COURT HON’BLE SUPREME COURT OF INDIA

PETITIONERS IN THE
VISHAKA AND ORS.
CASE

RESPONDENTS IN THE
THE STATE OF RAJASTHAN AND ORS.
CASE

Chief Justice J.S. Verma,

HON’BLE BENCH Justice Sujata V. Manohar and
Justice B.N. Kirpal.

JUDGMENT PASSED ON 13TH AUGUST 1997

1
1997 SC

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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 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.

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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.

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.

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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”.

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.

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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?

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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.

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.

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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 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:

2
Convention on the Elimination of All Forms of Discrimination against Women 1929

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(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.

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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
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.

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

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 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.

 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.

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 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 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

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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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 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.

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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.

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.

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REFERENCES
o https://indiankanoon.org/doc/1031794
o https://blog.ipleaders.in/
o https://www.legalbites.in/
o https://www.legalserviceindia.com
o H.O, Aggarwal, Human Rights, Central Law Publications, 2014
o S.K. Kapoor, International Law and Human Rights, Central Law Agency, 2014

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