SIDDHARTH COLLEGE OF LAW

LEGAL LANGUAGE & LEGAL WRITING

VISHAKA AND OTHERS V. STATE OF RAJASTHAN

AND OTHERS

“A Project Submitted to Siddharth College of Law for the 1st

Year LL.B. Degree Course”

SUBMITTED BY
ULHAS MILIND SAPKALE
ROLL NO : 217

ACADEMIC YEAR
2019-20
 INDEX
SR NO TITLE REMARKS
1 INTRODUCTION
2 GENERAL POINTS
3 EMPLOYERS DUTY
4 ADVANTAGE TO THE VICTIM
5 FACTS
6 JUDGMENT
7 CRITICAL ANALYSIS
8 REFLECTIONS ON THE VISHAKHA
JUDGMENT
9 CONCLUSION
 ACKNOWLEDGMENT

With profound gratitude and sense of indebtedness I place on record my

sincerest thanks to SHIVAM SIR of Siddharth College of law, for his invaluable
guidance, sound advice and affectionate attitude during the course of my studies.

I have no hesitation in saying that he molded raw clay into watch ever I am
through his incessant efforts and keen interest shown throughout my academic pursuit.
It is due to his patient guidance that I have been able to complete the task.

I would also thank the Siddharth College of Law Library for the wealth of
information, therein. I also express my regards to the Library staff for cooperating and
making available

Date: 27 January 2020.

 NAME OF THE CASE

THE SUPREME COURT OF INDIA

A study on Sexual Harassment and Gender Equality in

workplace, with special reference to Vishaka and others V.
State of Rajasthan and others

Equivalent Citation – (1997) 6 SCC 241

Petitioner : Vishaka & Ors.
Respondent: State of Rajasthan & Ors.
Date of Judgment: 13/08/1997
Bench : J.S. Verma
C.J.I. Sujata V. Mahohar
B.N.Kirpal JJ
 LEGAL LANGUAGE – VISHAKHA CASE

INTRODUCTION

Vishaka case of sexual harassment at workplace is a case of landmark judgement

by Supreme Court of India. Not because it was attack on working women’s fundamental
right to work without fear and prejudice. Not becase it is a saga of immense torture of a
naïve working woman. Not because a woman showed exemplery courage to fight against
the male ego our immoral society.

It is a landmark case because 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. Till 1997 even after India’s independence of 50 years
there was hardly any law to safeguard sexual harassment of working women. As I write
this, I’m very much ashamed of being an Indian and even more being an Indian women. It
is no less than a curse.

The women harassment bill, 2010 is still being worked out. And there no special
laws to safeguard sexually harassed working women. Just some guidelines from different
courts in India, more importantly from Supreme Court of India.

However I want to narrate short summary of Vishaka case guidelines of Supreme

Court for a layman. I’m not a legal expert, but only a layman like you, but yes a victim of
sexual harassment.

You should try to understand it in simple terms and please don’t contact any
lawyer in the first place. Yes, please do contact nearby women cell, women right activists
or at least contact us or raise the issue in our non-profit Indian working women’s forum.
If you raise it in the working women’s forum then we’ll try to contact appropriate women
cells/activists or lawyers to answer you query(even though the forum may be empty, but
we’re watching it for support requests)
GENERAL POINTS

 Gender equality includes protection from sexual harassment and right to work
with dignity as per our constitution.

 Extra hazard for a working woman compared her male colleague is clear violation
of the fundamental rights of ‘Gender Equality’ & Right to Life and Liberty.

 Safe working environment is fundamental right of working woman.

 In no way working women may be discriminated at workplace against male

employees. (If a woman is, then it must be documented in company policies, for
example limitation of women in police and armed forces)

 Working with full dignity is the fundamental right of working women.

 The right to work as an inalienable right of all working women

 The right to protection of health and to safety in working conditions, including the
safeguarding of the function of reproduction(pregnancy, maternity & nursing etc)
is fundamental right of working women

FOLLOWING CAN BE TERMED AS SEXUAL HARASSMENT

 Anything at work that can place the working woman at disadvantage compared to
other male employees in her official career just because she is a woman – can be
termed as sexual harassment

 Unwelcome sexually determined behaviour & demands from males employees at

workplace:

o Any physical contacts and advances

o sexually colored remarks
 o showing pornography
o passing lewd comments or gestures
o sexual demands by any means

 Any roumors/talk at workplace with sexually colored remarks about a working

woman. Even spreading rumour about a woman’s sexual relationship with
anybody

EMPLOYERS DUTY

It is an obligatory requirement for employers:

 Appropriate notification/advertisement to be issued for prohibition of sexual

harassment at workplace for the employees of the company.

 State government, central government and PSU bodies to include in their conduct
and discipline rules/regulations prohibiting sexual harassment plus mention of
penalties for those found guilty of sexual harassment.

 For private employers, prohibition of sexual harassment and penalties to be

included in the standing orders under the Industrial Employment (Standing
Orders) Act, 1946.

 Employers need to provide conducive & appropriate work conditions for women
staff in the view of : work, health, hygiene & leisure. In short there mustn’t be any
conditions creating hostile environment towards working women staff and any
conditions which could put women at an disadvantage position with regards to her
career compared to other male employees of the company.

 The employer will need to have a written complaint mechanism which will need
to include time frame of resolution of sexual harassment claims.

 Employer should help the victim phychologically with counselling etc.

  Employer should maintain confidentiallity of the complaint and the identity of the
woman who raised the complaint and complaint specifics.

 Employers are bound to inform the details of sexual harassment complaints to

appropriate government bodies/labour department etc, every year. In short it’ll be
illegal to hide any sexual harassment complaints raised in the company or with the
employer and not report to government authorities.

 Employer should allow and encourage the employees to raise sexual harassment
issues in worker’s meetings and at appropriate forums. And all those complaints
need to be affirmatively discussed. In other words the employer must provide easy
way to discuss sexual harassment issues and should not show any lack of interest.

 Employer should take steps to make working women aware of their rights to
equality in everything in workplace by prominently notifying the guidelines by
appropriate means ( like sending emailers, sending letters, displaying rules on
notice boards)

 If the sexual harassment is due to third party that is not anything related to the
employer but by another person from different organization which you interacted
with him as part of discharging your official duties whether in office space or
outside, then the employer will need to take all necessary steps to assist and help
the victim in the terms of support & preventive action

EMPLOYERS DUTY AFTER RECEIVING A SEXUAL HARASSMENT

COMPLAINT

 The employer must assess the crime and if required legally, it must register
complaint with appropriate government authorities. For major sexual harassment
cases, it beehoves on the employer to immediately bring the issue to notice of
local Police and also nearby women cells. The employers should not delay filing a
police complaint just try to save it’s company’s image.
  The employer will need to ensure that the victim is not further traumatized or
victimized. Employer must not persecute the victim in any way due to a woman’s
complaint.

SETTING UP OF COMPLAINT COMMITTEE BY THE EMPLOYERS

 Committee should be headed by a woman

 More than 50% of committee members should be women

 The committee should also consist of third party members not affialiated to the
company or employer in anyway. Preferably from NGO’s, women right activists
who are familiar to the issue of sexual harassment. If you’re a victim then you
should be quite vigilant to this member as every company/employer tries to
include their "friends" in such committes which will not object to the decisions
made by the committee members on their payrols and loyal to the company,
prejudicing the sexually harassed woman. If it is the case, then please contact
us immediately.

ADVANTAGE TO THE VICTIM

The victim of sexual harassment should be given the option to seek the transfer of
the culprit or her own transfer to another department/palce etc.

Vishaka & ors. v/s state of Rajasthan is a case which deals with the evil of Sexual
Harassment of a women at her workplace. It is a landmark judgment case in the history of
sexual harassment which as being decide by Supreme Court. Sexual Harassment means
an uninvited/unwelcome sexual favor or sexual gestures from one gender towards the
other gender. It makes the person feel humiliated, offended and insulted to whom it is
been done. In many of the cases, it has been observed that homosexual labor harass an
employee belonging to the same sex to which he belongs.
 Sexual harassment is also termed as “Eve Teasing” in India, and it can be
determined from the following acts like- passing of indicative or typical comments or
jokes, uninvited touching, making appeals for sex, sexually blunt pictures or text
messages or emails, discredit person because of sex. Accordingly, Sexual Harassment
violates the fundamental right of the women of gender equality which is codified under
Article 14 of Indian Constitution and also the fundamental right to life and to live a
dignified life is violated/infringed under Article 21 of constitution of India. Even though
there has been no provision for sexual harassment at workplace under Indian
Constitution.

Justice Arjit Pasayat beholder from his beautiful thought that- “ while a murderer
destroys the physical frame of the victim, on the other hand the rapist defiles the soul of a
helpless female”.

Sexual harassment is one of the social evil faced by the fragile portion of the
society. Now at this point of time the high society people or the people who commits
sexual harassment should become aware about the vital needs or rights of women or
either when this tranquil volcano of anger will erupt will cause immense danger and
shattering which would have equal consequences which is cause from the burst or
eruption of an inactive volcano.

FACTS

The facts of this case are given below:-

 Bhanwari Devi who was a social activist/worker in one of the Rajasthan’s village.
 She worked under a social development program at rural level which was about to
stop child marriage in a village and this social program was administered/ initiated
by the Rajasthan’s state government.
 Bhanwari Devi en-devoured to stop the marriage of the Ramkaran Gujjars
(thakurs) daughter, who was merely less than one year old i.e. she was an infant
only.
  As a part of her duty, Bhanwari Devi tried to terminate the marriage of her infant
daughter.
 Even of her vain-full efforts to stop the marriage, it happened, but Bhanwari devi
was not excused or pardoned for her’s this fault.
 She was exposed to or put forward to social punishment or boycott.
 September 1992, she was been gang raped by Ramkaran Gujjar and his five
friends in front of her husband.
 The male doctor at normal primary health center declined to survey her and the
doctor at Jaipur only made confirmation of her age without any recommendation
of her being raped in her medical report.
 At police station too she was been continually taunted by the women countable for
the whole of the midnight.
 In past midnight she was been asked by the policeman to leave her lehnga as the
evidence of that incident and go back to her village.
 After that, she was only left with the bloodstained dhoti of her husband to wrap
her body, as a result of which they had to spend there whole night in that police
station.
 The Trail Court made the discharge of the accused people for not being guilty.
 The High Court in his judgement propounded that –“ it was a case of gang rape
which was conducted out of revengeful situation.
 All these statement and judgement, aroused women and NGO’S to file pitition
(PIL) in Supreme Court of India.

ISSUE RAISED IN THIS CASE

 Whether, the enactment of guidelines mandatory for the repudment of sexual

harassment of women at workplace.

JUDGEMENT

The judgment of Vishakha's case was conveyed by Chief Justice J.S Verma as a
representative of Justice Sujata Manihar and Justice B.N Kripal on account of writ
petition which was file by Vishakha the victim of this case. The court observed that the
fundamental rights under Article 14[2], 19[3](1)(g) and 21[4]of Constitution of India that,
every profession, trade or occupation should provide safe working environment to
the employees. It hampered the right to life and the right to live a dignified life. The basic
requirement was that there should be the availability of safe working environment at
workplace.

The Supreme Court held that, women have fundamental right towards the freedom
of sexual harassment at workplace. It also put forward various important guidelines for
the employees to follow them and avoid sexual harassment of women at workplace. The
court also suggested to have proper techniques for the implementation of cases where
there is sexual harassment at workplace. The main aim/objective of the Supreme Court
was to ensure gender equality among people and also to ensure that there should be no
discrimination towards women at there workplace.

After this case, the Supreme Court made the term Sexual harassment well defined,
accordingly any physical touch or conduct, showing of pornography, any unpleasant taunt
or misbehavior, or any sexual desire towards women, sexual favor will come under the
ambit of sexual harassment.

CRITICAL ANALYSIS

In the case of Vishakha & others v/s the state of Rajasthan[5], the Supreme Court
specifically underlined the definition of Sexual Harassment[6],which conveys any
unwanted or uninvited physical touch or conduct or showing of pornography or any
definable sexual comments or texts will come under the ambit of Sexual Harassment.
According to me any such conduct done directly hampers the right of women to life and it
also affects there dignity to live. It also hinders the mental and physical health of women.
Sexual harassment shall be avoided and the equality between the genders shall be
established at workplace.

The Supreme Court held out guidelines that, the person-in-charge of the particular
institution, organisation or office whether be it private or public, will be responsible in
taking effective steps to prevent sexual harassment. Penalties shall be charged from the
accused people for conducting sexual harassment.
It had became a very crucial topic to act upon for the prevention of sexual
harassment women at workplace. In case of private companies the strict rules regarding
the punishment of sexual harassment shall be included. In case the sexual harassment is
conducted by the outsiders, the person-in charge of that institution must take strict action
for the conduct of such crime.

REFLECTIONS ON THE VISHAKHA JUDGMENT

Naina Kapur stated that Vishakha being a public interest litigation that arose from
Bhanwari Devi’s personal experience was targeted towards empowering working women
(Sood, 2006). The public interest petition used her story as a concrete illustration of
systemic rights violations, and then demonstrated a pattern of abuse by providing
examples of five other women who experienced sexual assault while doing public health
or social work. In the words of Akhila Sivadas who was quoted by Sood (2006), the
Vishakha judgement charted out a path, created multiple stakes, and never left the public
domain. Somebody or the other is always using it. It has snowballed into different kinds
of ownerships.

The original creators may have moved on, but they have left a very powerful
legacy. Sexual harassment at workplace as an issue was approached from the point of
view of systematic discrimination. It was highlighted that societal attitudes needed to
change. Importantly the Court ruled that the issue of sexual harassment at the workplace
is a human rights issue not merely an issue falling in the framework of criminal law. The
fact that the Supreme Court chose to cite the Human Rights Act, 1993 as a basis for the
Vishakha judgment holds significance for the issue of sexual harassment. Within the
understanding of human rights it was held as an 6 issue to be dealt with at the workplace
rather than in courts. Focus was shifted from convicting the perpetrator to protecting
rights of women in relation to work.

It can be said that the Vishakha judgment filled a void because for the first time
the Apex Court upheld constitutional rights of women by directly applying the provisions
of CEDAW to enact guidelines related to sexual harassment in the workplace. The
judgment played a key role in demonstrating compliance by India to the CEDAW. India
signed the CEDAW on 30th July 1980 and ratified it on 9th July 1993. In its first three
reports to the CEDAW committee on the measures taken to effect to the provisions of
CEDAW i.e. initial report (1999), second and third reports (2005) the Government of
India referred and resorted to the key judgments by the Supreme Court of India to
demonstrate compliance to the CEDAW of which Vishakha judgment was prominent.
GOI informed the CEDAW committee that the Indian judiciary played a proactive role
and paved the way to use principles of the treaty in many judgments.

It was brought to the notice of the international community that Supreme Court of
India adopted the definition of sexual harassment from the General Recommendation
number 19 while laying down guidelines for employers with respect to sexual
harassment. In this light, the Vishakha guidelines embodied landmark legislation. It was
revolutionary way of conceptualising sexual harassment at the workplace. Sood (2006)
quoted Justice Verma who expressed the Vishakha judgment represented a quantum leap
forward not only for gender justice, but also for the development of Indian jurisprudence
on international law. He said the international law could be used for the purpose of
expanding the scope of existing constitutional guarantees, and also for filling the gaps
wherever gaps existed for the purpose of enlargements of human rights. Vishakha was a
landmark case as it laid down a new path because it was not intended merely to deal with
sexual harassment since it opened new vistas in the field of international law becoming
part of national law.

Through its integrated use of CEDAW, Vishakha established a strong precedent

for the direct application of international conventions in future cases. According to Justice
Verma whether a country ratified a convention or otherwise, if there was a constitutional
guarantee akin to that, it could be read into that provision. Sood stated that his comment
explained the Court’s comfort in relying upon CEDAW even though the Indian
government ratified the treaty one year after the Vishakha petition was filed but four years
before the final judgment was issued. Sood (2006) brought out that the Vishakha
judgment represented a quantum leap forward not only for gender justice, but also for the
development of Indian jurisprudence on international law.
 It compelled the Indian government to acknowledge the issue as a form of
violence against women. International law was used for the purpose of expanding the
scope of existing constitutional guarantees, and also for filling the gaps wherever gaps 7
existed for the purpose of enlargements of human rights. It was indeed a landmark case as
it laid down a new path. It was not intended merely to deal with sexual harassment since
it opened new vistas in the field of international law becoming part of national law.
Through its integrated use of CEDAW, Vishakha established a strong precedent for the
direct application of international conventions in future cases. Sood (2006) further
explained that Vishakha being a public interest litigation that arose from personal
experience of a woman worker was targeted towards empowering working women.

The public interest petition used her life experience as a concrete illustration of
systemic rights violations, and then demonstrated a pattern of abuse by providing
examples of five other women who experienced sexual assault while doing public health
or social work. The Vishakha judgement was instrumental in carving out a path which
created multiple stakes for various groups and it continued to remain in the public
domain. It was seen that subsequently it was used in all the other judgments on the issues
of violation of human rights at work thus leaving a powerful legacy.

The judgment upheld the idea that concept of equality was much more than
treating all persons in the same way. It pronounced that equality between men and women
in the true sense of the term could be realised by making concentrated efforts towards
rectification of already existing power imbalances in the society. This broader view of
equality is the core principle and the goal in the struggle for recognition and acceptance
of the human rights of women. Chapter two looks at framework for analysing the issue
from legal and sociological point of view.
CONCLUSION

Sexual Harassment of women at workplace happens at a very frequent rate in

India. If any strict action will not be taken towards this crime, it will directly hamper the
working ration of the women in India and on other hand it will hamper the economic
situation of India. Government should make strict laws regarding the aversion of sexual
harassment at workplace, because it should realize that, women also constitute the
working population of our country.

It should be abolished to prevent the dignity and the respect of the women.
Various new approaches and skills shall be implemented by the institutions, organisations
to prevent there women employees from such a social evil. The main objective behind the
stabilization of this right is to promote gender equality at workplace without any kind of
discrimination and discernment among the workers of an organisation.