“Vishaka v.

State of Rajasthan”

INTRODUCTION

“Yatra naryastu pujyante ramante tatra Devata, yatraitaastu na pujyante sarvaastatrafalaah

kriyaah”(यययय ययययययययय ययययययययय यययययय यययय
ययययय:य,ययययययययययय य ययययययययय ययययययययययययययय:
यययययय:य) is a famous sloka taken from Manusmruthi which means where Women are
honored, divinity blossoms there, and where women are dishonored, all action no matter how
noble remain unfruitful.

Vishaka vs. State of Rajasthan AIR 1997 SC 3011, case is based on Sexual Harassment. Sexual
Harassment means Sexual harassment in the workplace is usually associated with a heterosexual
employee making unwelcome sexual advances to another heterosexual employee of the opposite
gender. There are also cases where a homosexual employee harasses an employee of the same
sex. But can a heterosexual employee sexually harass another heterosexual employee of the same
gender1.

Sexual harassment in India is also termed as "Eve teasing" and is described as: unwelcome
sexual gesture or behaviour whether directly or indirectly as sexually coloured remarks; physical
contact and advances; showing pornography; a demand or request for sexual favours; any other
unwelcome physical, verbal/non-verbal conduct being sexual in nature. The critical factor is the
unwelcomeness of the behaviour, thereby making the impact of such actions on the recipient
more relevant rather than intent of the perpetrator. According to India's constitution, sexual
harassment infringes the ‘fundamental right’ of a woman to gender equality under ‘Article 14’ of
the Constitution of India and her right to life and live with dignity under ‘Article 21’ of the
Constitution. Although there is no specific law against sexual harassment at workplace in India.

Having Regard to the definition of ‘human rights’ in Section 2 (d) of the Protection of Human
Rights Act, 1993,2 TAKING NOTE of the fact that the present civil and penal laws in India do
not adequately provide for specific protection of women from sexual harassment in work places
and that enactment of such legislation will take considerable time,

It is necessary and expedient for employers in work places as well as other responsible persons
or institutions to observe certain guidelines to ensure the prevention of sexual harassment of
women.

1
http://legal-dictionary.thefreedictionary.com/sexual+harassment
2
Human Rights Act, 1993

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  Duty of the Employer or other responsible persons in work places and other
institutions

It shall be the duty of the employer or other responsible persons in work places or other
institutions to prevent or deter the commission of acts of sexual harassment and to
provide the procedures for the resolution, settlement or prosecution of acts of sexual
harassment by taking all steps required.

 Definition :

For this purpose, sexual harassment includes such unwelcome sexually determined behaviour
(whether directly or by implication) as :

a) Physical contact and advances;

b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

Where any of these acts is committed in circumstances where-under the victim of such conduct
has a reasonable apprehension that in relation to the victim’s employment or work whether she is
drawing salary, or honorarium or voluntary, whether in Government, public or private enterprise
such conduct can be humiliating and may constitute a health and safety problem. It is
discriminatory for instance when the woman has reasonable grounds to believe that her objection
would disadvantage her in connection with her employment or work including recruiting or
promotion or when it creates a hostile work environment. Adverse consequences might be visited
if the victim does not consent to the conduct in question or raises any objection thereto.

 Preventive Steps :

All employers or persons in charge of work place whether in public or private sector should take
appropriate steps to prevent sexual harassment. Without prejudice to the generality to this
obligation they should take the following steps :-

(a) Express prohibition of sexual harassment as defined above at the work place should be
notified, published and circulated in appropriate ways.

(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and
discipline should include rules/regulations prohibiting sexual harassment and provide for
appropriate penalties in such rules against the offender.

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 (c) As regards private employers steps should be taken to include the aforesaid prohibitions
in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.

(d) Appropriate work conditions should be provided in respect of work, leisure, health and
hygiene to further ensure that there is no hostile environment towards women at work
places and no employee woman should have reasonable grounds to believe that she is
disadvantaged in connection with her employment.

In this case Supreme Court laid down various guidelines which recognized it not only as a
private injury to an individual woman but also as the violation of her fundamental rights. These
guidelines are significant because for the first time sexual harassment is identified as a separate
category of legally prohibited behavior. These are subjected to all workplaces until any other
legislation is passed by parliament in this regard based on the ‘Vishaka’ guidelines, the
Government of India, together with the civil society has proposed several draft laws between
2005 and 2010. However, the latest draft ‘Protection of Women against the Sexual Harassment at
the Workplace Bill, 20103’, introduced in the Parliament on December 7, 2010 is entirely a
government version; the absence of civil society consultation on this draft is acute.

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http://indialawyers.wordpress.com

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 FACTS OF THE CASE

1. The petition filled was with reference to the enforcement of the fundamental right (of the
working women) under Articles 14,19 and 21 of the Constitution of India.

2. Bhanwari devi was a social worker at a village level of a social development programmed
named Stop child marriages in villages Which was administered by government of
Rajasthan.

3. She tried to stop the marriage of Ramkaran Gujjar’s daughter who was less than one year
old.

4. Nevertheless, marriage took place but she was not forgiven for her efforts to stop
marriage. She was subjected to social boycott.

5. In September 1992 Ramkaran Gujjar and his friends, gang raped her in front of her
husband.

6. The doctor confirmed only her age without making any reference to rape in medical
report at Jaipur.

7. 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.

8. The Trial court acquitted the accused.

9. High Court stated that “It is a case of gang-rape which was committed out of
vengeance”.

10. This provoked women’s groups and NGOs to file a petition in the Supreme Court of
India.

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 ISSUES OF THE CASE

1. Whether there is a need of implementing guidelines for avoiding sexual harassment of

women at workplaces.?

2. Does sexual harassment of women at workplace violates the fundamental rights of

women under Article 14, 15, 19, 21 redressed under Article 32?

3. Is there any exact provision or law that secures womens fundamental rights at the
workplace?

ARGUMENTS BY THE COUNSELS

The Counsels in the Supreme Court argued for implementing the sexual harassment
prevention guidelines that sexual harassment of women at workplace violates Article 14,
15 and 21 the Constitution of India and violate the constitutional rights of woman.

They argued that gender quality includes protection from sexual harassment and right to
work with dignity, which is a universally recognized basic human right. The common
minimum requirement of this right has received global acceptance.

The objectives and functions of the judiciary include following:

(a) To ensure that all persons are able to live securely under the Rule of Law;

(b) To promote, within the proper limits of the judicial function, the observance and the
attainment of human rights;

(c) To administer the law impartially among persons and between persons and the state.

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 JUDGMENT OF THE CASE

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 observed that it
is fundamental right of working woman under article 144, 195(1) (g), and 216 of the constitution
to carry on any occupation, trade or profession but it should be ensured that trader should
provide a safe working environment at work place. It was of the view that the fundamental right
to carry on any occupation, trade or profession depends on the availability of a “safe” working
environment. The right to life means life with dignity.

The Supreme Court referred to various international human right7 instruments, including
CEDAW8 and observed that every woman has a fundamental right to freedom from Sexual
Harassment. Supreme Court has laid down guidelines to be followed by employees to prevent
sexual harassment of women employees. The guidelines are mandatory till they are replaced by
legislation.

This is implicit from Article 519 and the enabling power of the Parliament to enact laws for
implementing the International Conventions and norms by virtue of Article 253,10 read with
entry 14 of the union list in Seventh of the Constitution.

Court ruled out that at every workplace there should be a sexual code and there should be a
proper mechanism to enforce cases which fall under the ambit of this sexual harassment code.
The main objective of this aim is to facilitate the gender equality and to prevent discrimination
for women at the workplace. The Supreme Court in absence of any enacted law was called upon
to provide for effective enforcement of basic human rights of gender equality and guarantee
against sexual harassment.

Supreme Court made the definition of sexually determined behavior in a wider sense by
including any kind of acts which include physical contact, demand for sexual favors, sexually
remarks, showing pornography, verbal or non verbal conduct of a sexual nature with women.

The Supreme Court stated that the guidelines for the sexual code at every workplace are to be
treated as a declaration of law in accordance with Article 14111 of the constitution. And these

4
Article 14(the right to equality)
5
Article 19 (I)(g) (the right to practice one’s profession)
6
Article 21(the right to life)
7
Nhrc.nic.in/hract.htm
8
Convention on the Elimination of All forms of Discrimination Against Woman.
9
http://www.indiankanoon.org/doc/237570/
10
http://www.indiankanoon.org/doc/237570/
11
Article 141 of the constitution. (Law declared by Supreme Court to be binding on all courts The law declared by
the Supreme Court shall be binding on all courts within the territory of India)

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rights should not be based on prejudices any right available under the protection of Human Right
Act 1993. The guidelines and norms specified by the Supreme Court include the duty of
employer in work place and other institutions, preventive steps to be taken in this regard,
criminal proceedings, disciplinary action, complaints mechanism and complaints committee, to
encourage workers initiative, creating awareness and against third party harassment etc.

THE GUIDELINES GIVEN IN THIS CASE

Vishakha guidelines, as laid down by the Supreme Court put the onus of a safe working
environment on the employer.

The guidelines say that: “It shall be the duty of the employer or other responsible persons in
work places or other institutions to prevent or deter the commission of acts of sexual harassment
and to provide the procedures for the resolution, settlement or prosecution of acts, of sexual
harassment by taking all steps required.”

The guidelines also lay down a grievance redressal mechanism that mandates all companies,
whether operating in the public or private sector, to set up Complaints Committee within the
organisation to look into such offences. According to Tehelka’s managing editor, Shoma
Choudhary, their organisation (despite championing women causes) didn't have such a
committee.

“Whether or not such conduct constitutes an offence under law or a breach of the service rules,
an appropriate complaint mechanism should be created in the employer’s organisation for redress
of the complaint made by the victim. Such complaint mechanism should ensure time bound
treatment of complaints,” the Supreme Court guidelines say.

The Complaints Committee should be headed by a woman and not less than half of its member
should be women. Further, to prevent the possibility of any undue pressure or influence from
senior levels, such Complaints Committee should involve a third party, either NGO or other
body who is familiar with the issue of sexual harassment.

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 CRITICAL ANALYSIS OF THE CASE

The Supreme Court referred to the definition of Sexual harassment suggest in Vishaka vs. State
of Rajasthan12. Supreme Court give Sexual Harassment definition13 shows that sexual
harassment of a form of sex discrimination projected through unwelcome favors and other verbal
or physical conduct with sexual overtones, whether directly or by implication, particularly when
submission to or rejection of such a conduct by the female employee was capable of being used
for affecting the employment of the female employee and unreasonably interfering with her work
performance and had the effect of creating an intimidating or hostile working environment for
her. That sexual harassment of a female at the place of work is incompatible with the dignity and
honors of a female and needs to be eliminated and that there can be no compromise with such
violation admits of no debate.

The supreme court guideline set out that persons in charge of a workplace in the public or private
sector would be responsible for taking the appropriate steps to prevent sexual harassment by
taking the appropriate steps including :-

The prohibition of sexual harassment should be published in the appropriate ways and providing
the appropriate penalties against the offender, for private employees, the guidelines should be
included in the relevant employment guidelines, where sexual harassment occurs as a result of an
act or omission by any third party or outsider, the employer and person-in-change will take all
steps necessary and reasonable to assist the affected person in terms of support and preventive
action.

Vishaka v. State of Rajasthan a case presided over by Justice Bhagwati, Chief Justice of India,
whose quote begins this section. Vishaka involved the alleged rape of a woman by state
employees and the failure of officials to investigate the complaint. A group of activists brought a
“public interest litigation” action and requested the Supreme Court to frame guidelines for the
prevention of sexual harassment and violence against women based on CEDAW. Although
CEDAW does not have any specific provision on violence, the UN Committee on the
Elimination of Discrimination Against women had interpreted “discrimination” as including all

12
AIR 1997 SCC 3011 at 3014
13
www.indianknoon.org/doc/1031794/

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forms of violence against women14. Reading CEDAW together with the Committee’s
recommendation, the court held:

In the absence of domestic law occupying the field to formulate effective measures to
check the evil of sexual harassment of working women at all workplaces, the contents of
international

conventions and norms are significant for the purpose of the interpretation of the
guarantee of gender equality, the right to work with human dignity in articles 14, 15,
19(1) (g) and 21 of the Constitution of India15 and the safeguards against sexual
harassment implicit therein. Any international convention not inconsistent with the
fundamental rights and in harmony with its spirit must be read into these provisions to
enlarge the meaning and content thereof, to promote the object of the constitutional
guarantee.

This is the most direct impact of CEDAW and evidence that international human rights discourse
and feminist perspectives can play an effective and critical role, not just in informing reformers,
but actually influencing the law. The integration of international human rights norms into
domestic law is an important goal, which hopefully will slowly be realized.16

14
UN committee on the Elimination of Discrimination Against Woman, 11th Session, UN Doc
CEDAW/C/1992/L.1/Add.15 (1992), General Recommendation NO 19.
15
www.indianknoon.org/doc/1031794/
16
www.indianknoon.org/doc/1031794/

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THE PROTECTION OF WOMEN AGAINST SEXUAL HARASSMENT AT
WORK PLACE BILL, 2010

Finally approved the introduction of the Protection of Women against Sexual Harassment at
Workplace Bill, 2010 in Parliament. The bill seeks to ensure protection of women against sexual
harassment at the workplace, both in public and private sectors whether organised or
unorganized.

The Bill lays down the definition of sexual harassment and seeks to provide a mechanism for
redressing complaints. It provides for the constitution of an ‘Internal Complaints Committee’ at
the work place and a ‘Local Complaints Committee’ at the district and block levels. A District
Officer (District Collector or Deputy Collector), shall be responsible for facilitating and
monitoring the activities under the Act.

In 1997 as part of the Vishaka judgment, the Supreme Court drew upon the CEDAW and laid
down specific guidelines on the prevention of sexual harassment of women at the work
place. The Vishaka guidelines defined sexual harassment and codified preventive measures and
redressal mechanisms to be undertaken by employers.
A draft Bill was circulated by the Ministry of Women and Child Development for public
feedback in 2007. The current Bill establishes a framework to be followed by all employers to
address the issue of sexual harassment.

Highlights of the Bill

 The Bill defines sexual harassment at the work place and creates a mechanism for redressal
of complaints. It also provides safeguards against false or malicious charges.
 Every employer is required to constitute an Internal Complaints Committee at each office or
branch with 10 or more employees. The District Officer is required to constitute a Local
Complaints Committee at each district, and if required at the block level.
 The Complaints Committees have the powers of civil courts for gathering evidence.
 The Complaints Committees are required to provide for conciliation before initiating an
inquiry, if requested by the complainant.
 Penalties have been prescribed for employers. Non-compliance with the provisions of the
Act shall be punishable with a fine of up to Rs 50,000. Repeated violations may lead to
higher penalties and cancellation of licence or registration to conduct business.

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Key Issues and Analysis

 There could be feasibility issues in establishing an Internal Complaints Committee at every

branch or office with 10 or more employees.
 The Internal Complaints Committee has been given the powers of a civil court. However, it
does not require members with a legal background nor are there any provisions for legal
training.
 The Bill provides for action against the complainant in case of a false or malicious
complaint. This could deter victims from filing complaints.
 Two different bodies are called ‘Local Complaints Committee’. The Bill does not clearly
demarcate the jurisdiction, composition and functions of these Committees.
 Cases of sexual harassment of domestic workers have been specifically excluded from the
purview of the Bill.
 Unlike sexual harassment legislation in many other countries, this Bill does not provide
protection to men.

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 OTHER SEXUAL HARASSMENT: CASE LAWS IN INDIA
 Apparel Export Promotion Council v. A.K Chopra17

 Mrs. Rupan Deol Bajaj v. Kanwar Pal Singh Gill18

 State of Punjab Vs. Gurmit Singh19

 State of Maharashtra Vs. Madhukar N. Mardikar20

 Railway Board Vs. Chandrima Das21

 Mohd.Habib Vs State22

17
1997 IVAD Delhi 646, 68 (1997) DLT 303, 1997 (42) DRJ 526
18
1996 AIR 309, 1995 SCC (6) 194
19
(1996) 2 SCC 384
20
(1991) 1 SCC 57
21
AIR, 2000 SC 988
22
1989 Cr.LJ 137 Delhi

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 CONCLUSION
Sexual harassment at workplace is highly prevalent in India and there is a need to provide a
positive environment to the women workers. Government should make separate laws dealing
with this issue. It should also realize that women worker also constitute a part of working
population in India and it’s the duty of the government to provide them security at work. New
strategies should be made by the employers and managers to protect the organisation from this
evil. 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. By
focusing on the implementation of the Vishaka guidelines across sectors, examining the issue
comprehensively through its components of redressal, prevention and protection, and drawing
from experiences and perspectives shared at the Consultation, the organizers facilitated the
process of identifying problems to fill gaps that need to be addressed by any law combating
sexual harassment at the workplace.

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 BIBLIOGRAPHY

1. M.P Jain “Indian constitution” 7th edition.

2. J.N. Pandey 53rd edition.

3. V.N. Shukla 12th edition.

4. Human Rights Bare Act, 1993

5. www.indiankanoon.org

6. indialawyers.wordpress.com

7. legal-dictionary.thefreedictionary.com

8. en.wikipedia.org/wiki

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