Vishaka & Ors. V. State Of Rajasthan & Ors.

Author: Manishka Seal Student, Amity University, Kolkata

Introduction:

“While a murderer destroys the physical frame of the victim, on the other hand, the rapist defiles the soul of a helpless female.”

-Justice Arijit Pasyat

Women, in India, have been victims of sexual harassment, rape, gender inequality, domestic violence, etc. Indian women still cannot declare themselves to be free, safe and empowered. No wonder, India was declared first among the world’s most unsafe countries for women in 2018, according to a survey conducted by Thomson Reuters Foundation. Sexual harassment at the workplace has been a critical subject of women empowerment for a long time. Sexual harassment, as enumerated by the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), refers to unwelcome sexual behaviour, like physical contact, sexual remarks, display of pornography and lewd remarks, in words or actions. Acts of sexual harassment include sexual favours, unsolicited touching, suggestive jokes or comments, vulgar pictures and texts, etc. Sexual harassment amounts to infringement of fundamental rights under Articles 14[1] and 21[2]. It violates the woman’s right to equality and her right to live a life with dignity, since she is subject to gender discrimination.

The Indian Constitution does not contain any provisions relating to sexual harassment at the workplace. In case of a woman being sexually harassed at her place of work, she can lodge a complaint under Sections 354[3] and 509[4] of the Indian Penal Code. In these sections, the phrase ‘outraging women’s modesty’ was not defined. In 1992, Bhanwari Devi, a social worker protested against child marriage and was thus brutally gang-raped, which resulted in various women’s groups filing  a public interest litigation (PIL) against the state of Rajasthan. It has emerged into a famous landmark case, Vishaka & Ors. v. State of Rajasthan &Ors[5]. It led to the formation of the Vishaka Guidelines. This was a notable victory for women in India.

Facts of the Case:

Bhanwari Devi resided in Bhateri, Rajasthan. In 1985, she started working as a ‘Saathin’ (meaning friend) under the Women’s Development Programme, run by the Rajasthan Government. In 1992, she pursued a campaign by the government against child marriage, which was deprecated by the villagers. At such a time, Ram Karan Gujjar arranged for the marriage of his one-year-old infant daughter. It was not unknown to them that child marriage was illegal, hence, Bhanwari Devi, dedicated to her job, tried to persuade them to not perform the marriage, but the Gujjars did not budge from their decision. On 5th May, 1992, on Bhanwari Devi’s persuasion, the Sub-Divisional Officer (SDO) and Deputy Superintendent of Police (DSP) stopped the marriage. Nevertheless, the marriage took place the next day. Consequently, Bhanwari Devi was deprived of her job and was exposed to social boycott.

On 22nd September, 1992, five men- Ram Karan Gujjar, Ram Sukh Gujjar, Badri Gujjar, Gyarsa Gujjar, Shravan Sharma- attacked Bhanwari Devi’s husband and brutally gang-raped her, to seek revenge. After the incident, the police tried to avoid lodging any complaints, but Bhanwari Devi’s consistent efforts led them to finally lodge a complaint. This led to a fifty-two hours delay in the medical investigation. The doctor at the primary health centre refused to perform her medical examination. A doctor in Jaipur did her medical test and only confirmed her age in the report, mentioning nothing about rape. She was asked to leave her lehenga as evidence, and she was left with her husband’s bloodstained dhoti to cover herself up. Bhanwari Devi had been subjected to preferential and derogatory behaviour by the police and doctors.

On grounds of insufficient evidence, the accused were acquitted, with the help of the local MLA, Dhanraj Meera. The victim received no justice from the Trial Court or the Rajasthan High Court. This enraged the women activists, who along with other NGOs, sided with Bhanwari. As a result, a PIL was filed under the name of ‘Vishaka’, a women’s rights group. It stressed the enforcement of rights under Articles 14[6], 15[7], 19[8] and 21[9] of the Indian Constitution. It also shed light on the importance of having effective legislation regarding sexual harassment of women at their workplace.

Issues and Judgement:

In this case, the judgement was passed on 13th December 1997, by a three-judge bench, consisting of the then Chief Justice of India, J.S. Verma, Justice Sujata V. Manohar and Justice B.N. Kirpal. The following issues were addressed in the said judgement:

  1. Whether sexual harassment at the workplace violates the rights under Articles 14, 15, 19 and 21?


The Indian Constitution enshrines in its Preamble the ‘Equality of status and opportunity’. Additionally, it guarantees to its citizens ‘Equality before law’ and ‘Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth’ under Articles 14[10] and 15[11] respectively. Article 21[12] provides for the protection of life and personal liberty. Keeping this in mind, it can be said that providing a safe workplace for women is their legal right and they should not be subjected to any sort of gender discrimination. Sexual harassment is one such example of gender inequality, which deprives women of the equality and dignity, they are entitled to. Thus, it results in violation of fundamental rights under Articles 14, 15 and 21. Furthermore, such violations of fundamental rights also hamper the right provided under Article 19 (1)(g)[13] which guarantees the right to practice any profession or trade.


  1. Whether any responsibility is imposed on the employer when his employees are sexually harassed?


The employer must take all measures to avoid incidents of sexual harassment at the workplace and spread awareness regarding the same in his organisation. The organisation should have a mechanism to resort to prosecution or conciliation, in case any of the employees are subjected to sexual harassment. The detailed guidelines have been enumerated by the Hon’ble Supreme Court in the Vishaka Guidelines.


  1. Whether the enactment of guidelines is necessary to stop sexual harassment of women at their workplace?


The provisions for sexual harassment in the Indian Penal Code were not specific, and there were no specific domestic laws to manage sexual harassment. Hence, it was deemed necessary to form proper laws, concerning sexual harassment. The Beijing Statement of Principles and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) were referred to by the Hon’ble Supreme Court. Accordingly, the Supreme Court formulated the Vishaka Guidelines to tackle sexual harassment at the workplace. It laid the basis for The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013[14].

Vishaka Guidelines:

The Vishaka Guidelines were formulated to avoid sexual harassment at workplaces and to punish those who sexually harass women. Under Article 141[15], the Vishaka Guidelines were to be considered as law, until appropriate legislation was passed. The main characteristics of these guidelines are summarised below:

  1. The Supreme Court defined the acts of sexual harassment as:

  2. Physical contact

  3. Sexual favours

  4. Lewd remarks

  5. Display of pornography

  6. Any sort of uninvited conduct, either verbal or non-verbal

  7. The employer must provide a safe working environment to his employees, and take appropriate measures if any of his employees engage in sexual harassment. He should also assist those employees, in case the employee is exposed to sexual harassment. Further, he should spread awareness in his workplace about sexual harassment, via workshops and inform the female employees of their rights.

  8. If his employee’s conduct amounts to a criminal offence under the Indian Penal Code, the employer should file a complaint against the employee.

  9. The workplace should have a proper redressal committee to ensure the employees’ grievances are addressed properly and appropriate actions are taken.

  10. The government is responsible to make a pass the necessary law to tackle sexual harassment at workplaces, to ensure the safety of women and the growth of the nation, as a whole.

Developments post-Vishaka Judgement:

The Vishaka judgement was a major contribution to women empowerment, since before such judgement there were no specific or proper laws to deal with the evil of sexual harassment. It aimed to attain a safe working space for women. This judgement inspired women across the country to speak up against any injustice they were being subjected to. After the Vishaka judgement, there have been many developments, some of which are discussed below:

  1. In 1998, the Central Civil Services (Conduct) Rules 1964[16] were amended to include a provision to deal with sexual harassment of women.

  2. In Apparel Export Promotion Council v. A.K Chopra[17], the Supreme Court referred to the Vishaka judgement, dismissing a Superior Officer who sexually harassed a female employee.

  3. In Medha Kotwal Lele & Ors. v. Union of India & Ors.[18], the Apex Court directed the State Governments to ensure proper implementation of the Vishaka Guidelines.

  4. The most significant development was The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013[19]. It was India’s first law to protect women from being sexually harassed at the workplace. It amended the Vishaka Guidelines to suit the changing needs of society. For example, it incorporated both organized and unorganized sectors in its ambit. It also introduced ‘extended workplace’ because women are put through sexual harassment even outside the workplace- it covers all acts of sexual harassment in the course of employment. It provided for redressal mechanisms.


Conclusion:

The case of Vishaka & Ors. v. State of Rajasthan &Ors. is a huge milestone in the field of women empowerment, but it is not sufficient. Till today, many incidents of sexual harassment go unreported because of the fear of humiliation and revenge persisting in this patriarchal society, which teaches women to be tolerant of the injustice they’re subjected to. However, that is not the only issue that is hampering the delivery of justice to women. In a survey conducted in 2020, it was reported that 38.1% of the victims of sexual harassment were aware of the relevant laws. It clearly shows the huge number of people who are uninformed about their rights and the appropriate remedies to enforce them. Further, there are many victims of sexual harassment, who are still awaiting justice to be served to them. As mentioned earlier, India is still the most dangerous place for women, despite all the laws that have been enacted. It is high time for us to create a safer space for women, instead of disparaging them and depriving them of their basic rights.



[1]India Const. art. 14.

[2]India Const. art. 21.

[3]Indian Penal Code, 1860.

[4]Ibid.

[5]Vishaka&Ors. v. State of Rajasthan &Ors., AIR 1997 SC 3011.

[6]Supra note 1.

[7]India Const. art. 15.

[8]India Const. art. 19.

[9]Supra note 2.

[10]Supra note 1.

[11]Supra note 7.

[12]Supra note 2.

[13]India Const. art. 19, cl. 1(g).

[14]The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

[15]India Const. art. 141.

[16]Central Civil Services (Conduct) Rules 1964.

[17]Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625.

[18]Medha Kotwal Lele & Ors. v. Union of India &Ors., 2013 (1) SCC 297

[19]Supra note 14.

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