CASE ANALYSIS ON VISHAKA AND ORS. V.

STATE OF RAJASTHAN

BY
GAURAV LALL
INTERN
1st YEAR
UNITED WORLD SCHOOL OF LAW, GANDHINAGAR
AHMEDABAD
Mob-9830573547
[email protected]

23rd April 2020

VISHAKA GUIDELINES IMPACT ON INDIAN SOCIETY

1
FACTS OF THE CASE
In the year, 1985 a woman named Bhanwari Devi who was a social worker in one of the
villages of Rajasthan. She employed under the Women’s Development Project (WDP) which
was ruined by the government of Rajasthan at the rural level which was about to stop child
marriage in villages. Bhanwari Devi used to directly work with the families to prevent the
marriage’s she tried to stop the marriage of the Ram Karan Gujjars(Thakurs) daughter who
was merely one year old i.e. she was an infant. After her lot of efforts, she terminated the
marriage. She was not excused for her fault, as to get revenge for the same act done by
Bhanwari Devi she was gang-raped by Ramkaran Gujjar and his five friends of Gujjar
community in front of her husband at September 1992. The male doctor at primary healthcare
declined to survey her and the Jaipur (Doctor) only made confirmation of her age without any
recommendation of her being raped in the medical report. In past midnight she was been
asked by the male constable to put down and leave her Lehnga as an evidence and go back to
her village after that she was only left with the blood-stained dhoti of her husband to wrap her
body. Despite preferential and the derogatory behaviour shown by the police and the doctor,
she was insistent to fight for justice so she complained about the accused. However, in the
absence of proper evidence, the Trial Court discharged the accused for not being guilty.
Many social organization and NGOs also raised their voices for Bhanwari Devi fight for
Justice. Therefore, a Public Interest Litigation (PIL) was filled by the women activists to
protect women from sexual harassment at the workplace.

ISSUE OF THE CASE

The Supreme Court of India inspected that this is the case which highlighted the problem of
Gender Inequality, outraging the modesty of women, sexual harassment at workplace and
rape as societal issues of importance intensity.

APPELLANT’S ARGUMENT
The present petition has been brought up by certain social activists and NGOs to focus
attention towards societal abbreation, gender inequality and to prevent sexual harassment at
the workplace due to the incident of the brutal gang rape of a social worker.
The incident reveals the hazards to which the working women may be exposed and the moral
corruption to which sexual harassment can degenerate.

2
The Legislative measures need to find effective measures to fulfil the urgency of safeguard to
sexual harassment.
The violation of the fundamental rights in the incident is a clear violation under Article 14,
19(1) (g) and 21 of the Constitution.
The logical consequences of the incident is also the violation of the fundamental right under
Article 19(1) (g).
This violation attracts the remedy under Article 32 of the Indian Constitution.
In this type of cases, most of the time Writ to Mandamus is the effective need, this need is to
be accompanied by directions for prevention, as this type of incident is a recurring
phenomenon.
The primary responsibility for ensuring the safety and dignity of women and the creation of a
mechanism for its enforcement is of the Legislative and the Executive.
By accompanying Article 32 of the Indian Constitution, an effective redresser requires to
provide some guidelines for the protection of the aforementioned rights to fill the Legislative
vacuum.

RESPONDENT’S ARGUMENT
The Learned solicitor applied for the Union of India and rendered valuable assistance in the
true spirit of a law officer to find a proper solution to the social problem. Shri Fali S. Nariman
appeared as Amicus Curiae.
The court has rendered us as an assistant to deal with unusual matters in the manner
considered appropriate for a cause of this nature.
Apart from Article 32 of the Indian Constitution of India, we may refer to the provisions
which envisage the judicial intervention for completing the destruction of social evil. The
provisions referred to Article 15(1), 15(3), 42, 51(a) and 51(c).
The Learned Counsel said, before we refer to the international conventions and norms which
are having relevance in this field and how they assume importance in application and judicial
interpretation, we may advert to some other provision in the Indian Constitution which permit
such use. Article 51(c), Article 253.
Any international convention not inconsistent with the fundamental rights and in harmony
with its spirits must implicit under Article 51(c) and enabling power to enact laws by the
Parliament for implementing International Conventions and norms under Article 253 read
with the Entry 14 of the Union List in the Seventh Schedule of the Indian Constitution.

3
LEGAL ASPECTS IN THIS CASE
As per the above-mentioned facts or circumstances of the issue of sexual harassment and
Gang rape which was suffered by a social worker named Bhanwari Devi at her workplace for
protesting against the child marriage. This offence is being defined under Section 3751 of the
Indian Penal Code (IPC) 1860 and the Section 376D2 of the IPC, 1860.

INTERNATIONAL ASPECTS OF LAW IN SEXUAL HARASSMENT

The United Nations General Recommendation 19 to the Convention on the Elimination of

all Forms of Discrimination towards Women (CEDAW) defines sexual harassment of
women to consist of: Unwelcome sexually decided conduct as physical contact and advances
showing pornography, sexually coloured remarks and sexual needs whether with the aid of
phrases or action. Such conduct may be humiliating and might represent a health and safety
problem; it is discriminatory when the women have reasonable ground to agree with that her
objection could drawback her in connection together with her employment, which includes
recruitment or merchandising, or whilst it creates hostile operating surroundings.3

AUSTRALIA

In this case, Nunan v Auction Traffic Services Pty Ltd.4A female traffic controller was
sexually abused by a male corporate worker for 5 months. He made personal comments and
questions of a sexually vague nature, banter, sounds and gestures culminating in an incident
after which the complainant suffered an emotional breakdown and major depressive disorder.

The complainant settled with the corporate respondents, but this did not release the individual
respondent from liability. The individual respondent was liable for the difference between the
total award and the amount already paid by the corporate respondents.

A person who sexually abuses someone is ordinarily responsible for their behaviour. In many
cases, the companies can also be held vicariously liable for sexual harassment by way of the
employees unless it can display the steps that it took to prevent the sexual harassment from
taking place. Under the Sex Discrimination Act, the employer has to take all reasonable steps

1
Provision-of-rape, <http://www.devgan.in/> accessed on Apr 20, 2020.
2
Ibid.
3
CEDAW-describes-sexual harassment, <http://www.blog.ipleaders.in/> accessed on Apr 20, 2020.

4
Nunan v Aaction Traffic Services Pty Ltd [2013] QCAT 565.

4
to limit the threat of sexual discrimination and harassment happening. The Sex and Age
Discrimination Legislation Amendment Act 2011 amended the Sex Discrimination Act 1984
in May 2011 to increase the protections in opposition to sexual harassment.5

Precautions for the victim:

The victim can make a complaint to the Australian Human Rights Commission in case the
individual has been sexually harassed. The Commission will then investigate the complaint
and will try to resolve the complaint through a process of action of disputing between people
or groups or appeasement, throughout duration which will help the two parties involve by
acting as an impartial person. If the complaint is not resolved, then the victim can file a
complaint to the Court.

UNITED STATES

In Barnes v. Costle,6, we held that an employer who abolished a female employee's job to get
revenge against the employee's resistance of his sexual advances violated under Title VII of
the Civil Rights Act of 1964.7

Statute in US for sexual harassment at workplace:

This law makes it illegal to discriminate against someone on the idea of race, colour,
religion, origin, or sex. The law also makes it illegal to take revenge against an
individual because the person complained about discrimination, filed a charge of
discrimination, or participated in an employment discrimination investigation or lawsuit.
The law also requires the employers to admit reasonable applicants and employees those
who sincerely held religious practices, unless doing so would impose an undue hardship
on the operation of the employer's business.8

5
supra note 3, (p. 4).
6
Paulette L. Barnes
Vs.
Douglas M. Costle
Barnes Vs. Costle (27.07.1977 - Dist. Of Columbia) : MANU/UDCC/0109/1977
7
As amended, 42 U.S.C. § 2000e et seq. (1976 Supp. III 1979).

8
‘Law-for-protecting-women-in-US’,
<http://www.eeoc.gov/> accessed on 21 April 2020

5
Precautions for the victim:

To file complain in US legal options are been provided: mediation, filing with the EEOC
(Equal Employment Opportunity Commission) or filing a claim under a state Fair
Employment Practices (FEP) statute both are for workplace sexual harassment, filing a
complaint, etc. Not all harassment is going to be considered severe enough to make an
ideology for a legal claim. However, most frequently there are several ways of harassing the
women, and there's no minimum level for harassing conduct under the law. More experienced
harassment would have a solid legal case against the accused. Due to this, the common
preference for settling, few cases ever make it to court.

GERMANY

Since the overall Equal Treatment Act, entered into force in 2006, the prohibition and
protection from harassment of women at workplace are regulated by the overall Equal
Treatment Act. Not only concrete rights are options for the action of persons, suffering from
harassment are often derived from this Act, but also duties of prevention and intervention on
the part of the employer.9 Under the Protection of Employees Act, Employers and managers
are going to be required to protect employees against harassment at the workplace of business
or employment and additionally, each male and female personnel can file a complaint if
they'll be sexually burdened. Employees affected, shall have the right to complain to those
responsible within the commercial enterprise or the department who are sexually abused. The
company has the responsibility to examine the complaint and take appropriate measures to
stop the harassment from preventing it. If the enterprise fails to do so, the employees who're
harassed have the concrete right to suspend their pastime work at the workplace concerned,
without loss of wages or revenue, for as long as that's important for the individual's safety.

INDIA
The Sexual Harassment of Women at Workplace Act, 2013 is a legislative act in India which
protects women from sexual harassment at their workplace. It was passed by the Lok Sabha
(the lower house of the Indian Parliament) on 3rd of September 2012. It became exceeded
with the aid of the Rajya Sabha (the upper house of the Indian Parliament) on 26th of
February 2013. The Bill got the approval by the President of India on 23 April 2013. This Act
came into force from 9th of December 2013. This Act deals with protection against women
from sexual harassment within the workplace and presenting a secure environment. India
9
<www.antidiskriminierungsstelle.de/> accessed on 21 Apr 2020.

6
took 50 years to come up with a definition for what constitutes sexual harassment inside the
place of business, courtesy of a Supreme Court justice.

Complaint procedure in India

Police are authorized to act or take action against offences of sexual harassments on women.
Any women facing sexual harassment can make a complaint to the police for taking
necessary action against the one who commits such wrong.
On (April 2013) new amendments were administered in Indian legal code after the Vishakha
and others V. State of Rajasthan case, sexual harassments against women. Section 354A,
354B, 354C, 354D was newly inserted in Indian legislation, especially for the acts which
shall be treated as sexual harassments.

According to Section 354A, the subsequent activities by a person shall be treated as

harassment against women:
“Physical contact and advances involving unwelcome and clear sexual overtures; or demand
request for sexual favours; or showing pornography again because of the will of a woman; or
making sexually coloured remarks are going to be treated as an offence of harassment on
women”. 10

Punishment in India

For the above said offences under Section 354A, the punishment shall be for a period of
1 to 3 years of imprisonment or with fine, or both.

According to Section 354B, any man who assaults or uses criminal force to any women
or encourage such act with the intention of undressing or convincing her to be naked. For
this offence, the punishment shall not be less than three years, but may be extended to 7
years, and also shall be liable to fine.
According to Section 354C, any man who watches captures images of
girls engaging during a private act in circumstances where she would usually have the
exception aren't being observed either by the illegal or immoral person or by any
other person. For this offence, the punishment shall not be less than three years, but may
10
‘the-complaint-procedure-of sexual-harassment,
<http://www.whatishumanresource.com/> accessed on 20 April 2020

7
extended to 7 years, and also shall be liable to fine.
According to Section 354D, the subsequent shall be treated as an offence by a person.
Following a women and contacts, or attempts to contact such women repeatedly despite a
transparent indication of disinterest by such women. 11

PRECEDENTS OF HIGH COURT

In this case, Ruchika Singh Chhabra V. Air France and Another.12 Air France urged a
preliminary objection with respect to the jurisdiction of this Court to entertain the appellant’s
writ petition asserting that no cause of action arose within the National Capital Territory of
Delhi and this Court lacked jurisdiction to entertain the writ petition. It is argued by the
Appellant that the impugned judgment is in error in stating that this Court does not have
territorial jurisdiction to entertain the writ petition.
It has been argued by the respondent that DCW has no authority over the proceedings of the
ICC which is acting as the committee for the Gurgaon office in the present case.
The charge to lack of qualification in accordance with law was repelled by the respondent
employer.
Many hapless women are suffering, for their grievances against ICC formulated by their
employers which do not get suitably redressed by way of the appellate mechanism under
Section 18 of the Workplace Harassment Prohibition Act and the rules thereunder.
At the outset, Air France objects on the issue of jurisdiction of the court to entertain her writ
petition.
Its reply affirms that no cause of action has arisen within the National Capital Territory of
Delhi and this Court does not have the jurisdiction to entertain the writ petition as the cause
of action did not arise within Delhi. It cannot be said that the Delhi office is only a
communication address. Air France reasoned that there was nothing to prove that there was
any need for approval from the head office or any connection between the functioning of the
two offices and concluded that the mere fact that the head office was located in a state would
not confer jurisdiction upon the courts in that state.

11
Provision-for-punishment #sexual-harassment,
<http://www.whatishumanresource.com/> accessed on 21 Apr 2020
12
Ruchika Singh Chhabra
Vs.
Air France India and Ors.
Ruchika Singh Chhabra vs. Air France India and Ors. (30.05.2018 - DELHC) : MANU/DE/2069/2018

8
For the court to exercise jurisdiction, it is imperative that the registered office at Delhi have
some nexus to the cause of action in the present case, in the absence of which, this court is
devoid of any jurisdiction.
It is apparent that only those facts relevant to the prayer claimed in a writ petition would be
the bundle of facts constituting the cause of action.
The court holds that in the present case, it is clear that the cause of action is directly related to
the constitution and functioning of the ICC and since the ICC has been constituted both for
the Delhi as well as the Gurgaon office, and further, Delhi office being the registered office
of Air France in India, all these facts constitute direct nexus to the cause of action in this case.
To the extent, the facts in the present case can be distinguished from those in the case of
Eastern Coalfields Limited (supra).Unlike in that case, the registered office of the
respondents are not devoid of any linkage to the cause of action in the present case.
In the aforesaid situation, it would not be possible to hold that not even a part of the cause of
action has arisen at Delhi so as to deprive this court the jurisdiction to entertain the writ
petition filed by the Appellant.
The valid order, of the learned Single Judge was set aside. The constitution of the ICC by Air
France and all its resultant proceedings, including the report submitted by it, are declared
invalid and set aside.

PRECEDENTS OF SUPREME COURT

After viewing the fact of this case Dr. Vijayakumaran C.P.V. V. Central University of
Kerala & Ors.13 It appears to the Committee that the complaint is genuine and consistent and
it was unexpected that all eighteen students of a batch (complainants) could be influenced
falsely to an allegation against the accused by the University authorities. The possibility of
any such interventions was categorically denied by the complainants. The evidences against
the accused, both oral as well as written statements are strong and authentic, and the accused
failed to establish his innocence during the investigation process. The Committee with the
agreement of all people feels that the accused had committed sexual offences against girl
students spoiling the entire academic atmosphere in the department and as well in the campus
as a whole which may affect the reputation of the University. Accordingly, this appeal was
partly succeeded.
13
Vijayakumaran C.P.V.
Vs.
Central University of Kerala and Ors.
Vijayakumaran C.P.V. vs. Central University of Kerala and Ors. (28.01.2020 - SC) : MANU/SC/0094/2020

9
In this case Deputy Inspector General of Police and Another V. Samuthiram14 the Tamil
Nadu Prohibition of Eve-teasing Ordinance, 1998 promoted with the aid of the Governor and
which was posted inside the Tamil Nadu Government Gazette Extraordinary, dated 30th July
1998.The judgment of the Criminal Court was brought to the notice of the Tribunal and it
was submitted that, at the same set of information, the wrongdoer be no longer proceeded
within the departmental intended. The Tribunal took the view that no reliance may be placed
at the judgment of the Criminal Court. The original application was dismissed by using the
Tribunal vide order dated 23rd March 2004.

The High Court took the view that if a criminal case and departmental complaints in
opposition to an authentic are based totally on the equal set of data and evidence and the
criminal case ended in an honourable acquittal and now not on technical grounds, enforcing
punishment of removal of the antisocial reputable from service, based at the findings of
domestic enquiry could now not be legally sustainable. The High Court allowed the writ
petition and set aside the impugned order dismissing him from service. The mere acquittal
with the aid of the criminal court does now not entitle the delinquent for exoneration within
the disciplinary lawsuits.

The Learned counsel submitted that the judgment of the criminal court acquitting the
respondent must be construed as an honourable acquittal and that the respondent cannot be
proceeded with at the same set of facts on which he was acquitted by way of a Criminal
Court. It held that the said conduct of the respondent might undermine the morale of the
police force the Superintendent of Police offered the punishment of dismissal from carrier of
the respondent, vide its proceeding dated 4th January 2000.

The Criminal Court took the view that when you consider that PW 1 and PW 2 grew to
become adverse, the criminal case got weakened. It turned into below such instances that the
criminal court took the view that there is no evidence to implicate the respondent-accused he
was found now not responsible beneath Section 509 IPC study with Section 4 of the Eve-
teasing Act and became acquitted. The Court in Southern Railway Officers Assn. V. Union
of India 15 held that acquittal in a criminal case by using itself cannot be a ground for
14
Deputy Inspector General of Police and Anr.
Vs.
S. Samuthiram
Deputy Inspector General of Police and Anr. v. S. Samuthiram MANU/SC/1029/2012

15
Southern Railway Officers Assn. and Ors.
Vs.
Union of India (UOI) and Ors.

10
interfering with an order of punishment imposed by means of the disciplinary authority. The
Court reiterated that the order of dismissal can be passed even if the delinquent officer had
been acquitted of the criminal charge. We are of the view that the mere acquittal of an
employee through a criminal court has no effect at the disciplinary complaints initiated by the
Department.

This Court has considered the effect of Regulation forty six (four) coping with honourable
acquittal through a criminal court on the disciplinary proceedings. As we have already
indicated, inside the absence of any provision inside the service rules for reinstatement, if a
worker is honourably acquitted by a criminal court, no right is conferred on the employee to
claim any advantage inclusive of reinstatement. The Court acquitted the accused giving the
benefit of doubt. We have also stumble upon cases wherein the service rules provide that on
registration of a criminal case, an employee can be kept below suspension and on acquittal
with the aid of the criminal court, he be reinstated. The attraction is permitted with the above
guidelines and the judgment of the High Court is set aside.

CRITICAL ANALYSIS OF THE JUDGEMENT

The former Judge JS Verma, gave the judgement on behalf of Justice Sujata Majumdar
and Justice BN Kirpal, on a writ petition which was filed by the social activists and
different NGOs. The court observed that it's a fundamental Right of functioning the
women under Article 14, 19(1) (g) and 21 of the constitution to hold on any work, trade
or profession but it should be ensured that employer should provide a secure working
environment at work place. It had been of the remark that the elemental right to hold on
any quite occupation, trade or profession depends on the convenience of use of a “safe”
working environment. The proper to life means life with dignity and strength. The
Supreme Court ruled that in the least workplace there should be a sexual code and there
should be a correct mechanism to enforce cases, which fall into the ambit of
this harassment code. The most purpose of this aim is to facilitate the sexual
characteristics equality and to avoid discrimination for ladies at the workplace. The court
in lack of any enacted commandment was called upon to deliver for effective
enforcement of basic human rights of gender equality and prevention against harassment.
Supreme Court made the definition of sexually determined behaviour during a wider
sense by including any quite acts which include bodily contact, involve sexual favours,

Southern Railway Officers Assn. and Ors. vs. Union of India (UOI) and Ors. (04.08.2009 - SC) :
MANU/SC/1489/2009

11
sexual comments, showing pornography, oral or physical conduct of a sexual nature with
women. The Supreme Court stated that the rules for the sexual code at every workplace
are to be treated as a declaration of law in accordance with Article 141 of the
Constitution 16. And these rights shouldn't be supported prejudices any right available
under the protection of Human Rights Act 1993. The rules and norms specified by the
Supreme Court include the requirement of employer in work place and other institutions,
preventive steps to be taken during this regard, criminal proceedings, disciplinary action,
complaints, mechanism and complaints committee to encourage worker initiative,
creating awareness and against any third party harassment etc. 17

CONCLUSION

Vishakha judgment is one of the foremost gifted pieces of law the court has ever
enacted in its history since its inception. The court seeing the importance of the matter,
came directly into the bottom by breaking all the restrictions upon it by the constitution
and laid down such guidelines which might make sure that no such act of harassment
goes unpunished. The Court within the absence of domestic law didn’t hesitated in
reading law of nations on the topic matter of Convention on the Elimination of all Forms
of Discrimination towards Women (CEDAW). The Supreme Court of India found
authority for such reference in combined reading of Article 253 read with entry 14 of
Union List in Seventh Schedule. The Vishakha judgment and its importance also
contains the rationality within the sense that it doesn't over-pressurize the employer in
constructing redressed mechanism. The judgment has only directed what seems
appropriate for employer so as to take care of the constitutional principles of equality
and liberty. The judgment can never be termed together where judiciary encroaches its
boundaries irrationally i.e. Judicial Overreach instead it's the simplest example of broad
interpretation.

REFERENCES

1. http://www.devgan.in/ 20 Apr 2020. As amended, 42 U.S.C. § 2000e et seq. (1976

Supp. III 1979).

16
Article-141-of-the-constitution, <https://www.indiankanoon.org/doc/882644/> accessed on 23 Apr 2020.
17
Analysis-of-judgement, <http://www.jcil.lsyndicate.com/> accessed on 23 Apr 2020.

12
 2. Ibid.
3. <http.//www.blog.ipleaders.in/>
4. Nunan v Aaction Traffic Services Pty Ltd.
5. <http://www.blog.ipleaders.in />
6. Barnes v. Costle
7. <http://www.eeoc.gov/>
8. <http://www.antidiskriminierungsstelle.de/>
9. <http://www.whatishumanresource.com/ >
10. Ruchika Singh Chhabra V. Air France and Anr.
11. Dr. Vijayakumaran C.P.V. V. Central University of Kerala & Ors
12. Deputy Inspector General of Police and Another V. Samuthiram.
13. Southern Railway Officers Assn. V. Union of India.
14. <https://www.indiankanoon.org/doc/882644/>
15. http://jcil.lsyndicate.com/

BRIEF ABOUT AUTHOR

Gaurav Lall is pursuing B.B.A.LLB (Hons.) a 1st year student of United World School of
Law, Gandhinagar. He has published articles and research papers in the various legal
platforms of India. By being a part of Team ProBono, he is contributing to society through
legal aid.

13