Name of the case – Vishaka & Ors. v. State Of Rajasthan & Ors.

Citation of the case- (1997) 6 SCC 241

Name of the court where the case was filed- Hon’ble Supreme Court of india

Petitioners in the case- Vishaka and ors.

Respondents in the case- The State of Rajasthan and Ors.

Hon’ble bench- Chief Justice J.S. Verma, Justice Sujata V. Manohar, and Justice B.N. Kirpal.

Judgment passed on- 13th August, 1997

Introduction

Vishaka is a Non-Governmental Organisation (NGO) in the state of Rajasthan dedicated to the

empowerment and welfare of women. A woman by the name of Bhanwari Devi was a community worker
who organised campaigns against child marriage and dowries in an effort to empower women and ensure
their safety. A group of men from the Rajasthani hamlet viciously gangraped her in 1992 as she was
preventing a child marriage from occurring in a household. The matter proceeded to the lower court, where
the learnt judge found the accused not guilty due to insufficient evidence. Disappointed with the ruling, a
group of women headed by Sakshi and Naina Kapur filed a Public Interest Litigation (PIL) against the State
of Rajasthan before the Hon'ble Supreme Court under Article 32 of the Indian Constitution in order to obtain
the proper remedies. The purpose of the aforementioned PIL was to raise awareness of the underreported
problem of sexual harassment that women were experiencing at worki.

Legal Aspect involved in this case

India's Constitution-

1) Article 14: Equality of rights

It states that within Indian territory, the state cannot deny its residents "equality before the law" or "equal
protection of the laws." A.V. Dicey introduced the British idea of "equality before the law," sometimes
known as the "rule of law," which suggests that no one is above the law. The American Constitution, on the
other hand, is the source of the positive idea of equal protection under the law, which states that everyone in
a similar situation should be subject to the same laws.

2) Article 15: Discrimination is prohibited

According to this article, the state has a duty to prevent discrimination against its residents based on a variety
of variables, including race, religion, caste, sex, and place of birth. It additionally states that no citizen shall
be denied access to stores, restaurants, hotels, wells, tanks, highways, bathing ghats, etc. on the basis of
religion, race, caste, sex, or place of birth. Clause (3), which makes particular provisions for the welfare of
women and children, allows for exceptions to clauses (1) and (2).

3) Article 19(1)(g): The freedom to engage in any occupation or profession.

The freedom to pursue any career or engage in any trade, company, or occupation is guaranteed by this
article. On the other hand, it is true that freedom has limitations. Additionally, this right is not unqualified; in
the interest of public decency and order, it is subject to some reasonable limitations.

4) Article 21: Individual liberty and the right to life

According to this article, everyone has the right to life and personal freedom. The core of the Indian
Constitution is regarded as this article. The Supreme Court has given this article a broad interpretation,
encompassing rights such as the right to sleep, the right to a healthy environment, and the right to education.

5) Article 11 of the CEDAW Convention, which was established in 1949, aims to eradicate all types of
discrimination against women.

According to Article 11 of the CEDAW, the state must take the necessary steps to end discrimination against
women and promote their advancement in all spheres of the workforce.

Facts

In 1985, Bhanwari Devi, a resident of Bhateri, Rajasthan, began working for the Government of Rajasthan's
Women's Development Project (WDP). She worked as a "Saathin," which translates to "friend" in Hindi.
Bhanwari took on the case of a woman from a nearby hamlet who had been attempted to be raped in 1987 as
part of her work. She received complete support from her village's residents for this deed. In 1992, Bhanwari
took up a different topic in response to the government's anti-child marriage drive. Even though everyone in
the hamlet knew that underage marriage is prohibited, they all disapproved of this campaign and were
ignorant about it.
Meanwhile, Ram Karan Gurjar's family had planned to perform this type of marriage for his baby daughter.
Following the tasks she was given, Bhanwari made an effort to convince the family not to execute the
marriage, but all of her efforts were in vain.

The marriage was approved by the family. The Deputy Superintendent of Police (DSP) and the Sub-
Divisional Officer (SDO) went to put an end to the aforementioned marriage on May 5, 1992. Nevertheless,
no police action was taken against the marriage, which was completed the following day. The locals later
proved that Bhanwari Devi's acts were the cause of the police inspections. As a result, Bhanwari Devi and
her family were boycotted. In the midst of this boycott, Bhanwari also lost her job.

Five men, including four members of the aforementioned family—Ram Sukh Gujjar, Gyarsa Gujjar, Ram
Karan Gujjar, and Badri Gujjar—as well as one Shravan Sharma, attacked Bhanwari Devi's husband on
September 22, 1992, in an attempt to exact revenge. They then viciously raped her.

The investigation was delayed because the police made every effort to avoid making any complaints against
the accused. Bhanwari Devi encountered numerous obstacles, harsh criticism for her conduct, and pressure
from the relevant authorities to dismiss her case when she attempted to pursue justice. With her unwavering
will to obtain justice, Bhanwari Devi was able to file a complaint despite the harsh criticism she had
received. There was a fifty-two-hour delay in the medical examination. However, the examiner only cited
the victim's age in the report rather than any rapes that may have occurred.

In a Rajasthani district, Bhanwari Devi and her husband went to the trial court. However, due to a lack of
proof and with the assistance of Dhanraj Meena, the local MLA, all of the accused were acquitted. The trial
judge rejected the claim that Bhanwari Devi's husband did not assist her and was stopped while she was
being raped by the aforementioned males. However, many female activists and organisations that backed
Bhanwari strongly objected to this acquittal. A PIL was filed as a result of these organisations banding
together and speaking out for justice. A women's rights organisation called "Vishaka" filed a PIL after being
dissatisfied with the trial court's ruling. It focused on enforcing women's fundamental rights in the workplace
under Articles 14, 15, 19, and 21 of the Indian Constitution. It also brought attention to the necessity of
protecting women from sexual harassment in the workplace.

Issues

1) In the aforementioned case, did the trial court's ruling violate Bhanwari Devi's fundamental rights as
outlined in Articles 14, 15, 19(1)(g), and 21?
2) If there were no relevant measures under the current legislation, could the court nevertheless apply
international laws?
3) Does the employer have any liability when one of its workers engages in sexual harassment?

Arguments

(Petitioner)

In order to address these inevitable workplace sexual harassment issues that affect women and that no one
wanted to talk about, the petitioners made a compelling case before the Honourable Supreme Court.
According to the petitioners, Bhanwari Devi is not the only woman who has experienced this; many others
have, but individuals do not report such crimes because of social pressure and a fear of stigma. The
petitioners also cited the 1995 case of Minister of Immigration and Ethnic Affairs v. Teor, which held that the
Court may rely on an international convention in cases where the law is silent on a particular issue or
contains a gap, provided that it does not conflict with the fundamental rights guaranteed to Indian citizens
under Part III of the Constitution. In order to enhance women's contributions to the nation's development, the
petitioners urged the Supreme Court to defend and uphold women's rights.

(Respondent)

The learnt Solicitor General took a rare step by endorsing the petitioners while appearing on behalf of the
respondents (with their assent). The respondent helped the Hon'ble Court develop the guidelines for
preventing sexual harassment and identify an efficient way to stop it. The Hon'ble Court's amicus curiae, Fali
S. Nariman, Ms. Naina Kapur, and Ms. Meenakshi, assisted the Hon'ble Court in handling the
aforementioned case. According to the respondents, states ought to include information regarding sexual
harassment and the steps that must be taken to safeguard women against it as well as other forms of
workplace violence in their reports.

Judgment

The Hon'ble Supreme Court of India recognised the absence of legislation that would stop sexual harassment
and give women a safe workplace. Although they were not relevant to the matter at hand, Sections 354 and
354A of the Indian Penal Code, 1860, were to be referred to in any case of sexual harassment. The necessity
for appropriate and efficient laws to address sexual harassment was brought to the attention of the
Honourable Court by this.

1) Sexual harassment: a breach of the rights to life, liberty, and gender equality

In addressing the first problem, the Court declared that sexual harassment is a flagrant violation of the rights
to life and liberty, as well as gender equality, as guaranteed by Articles 14, 15, and 21 of the Indian
Constitution. Sexual harassment violates the rights to gender equality outlined in the aforementioned
sections of the Indian Constitution since it is typically a gender-based offence committed against women.
Since Article 21 covers a wide range of rights, including the right to a safe workplace and the right to live in
dignity, such actions also violate Article 21 since they have an adverse effect on women's mental health and
dignity. The Indian Constitution's Article 19(1)(g) guarantees the freedom to exercise or carry on any
profession, occupation, trade, or business is also violated. Under Article 32 of the Indian Constitution, the
victim may petition the Hon'ble Supreme Court for a remedy in order to enforce her fundamental rights as
protected by Part III of the Indian Constitution. According to Article 19(1)(g) of the Indian Constitution, the
right is contingent upon a safe workplace. The right to live with dignity is referred to as the right to life and
liberty, and the legislature should enact appropriate and effective laws to guarantee this goal.

2) When no measures are in place, international norms are applied.

In addressing the second issue, the Supreme Court declared that the courts could interpret the guarantee of
gender equality by relying on international conventions if there were no existing means to address the grave
evil of sexual harassment. The rights granted to citizens under Article 51(c) of the Indian Constitution, as
stated in the Directive Principles of State Policy, may be protected by relying on international conventions
that are consistent with the Constitution and fundamental rights. The right to work with dignity and the
protection against sexual harassment are also included in the notion of gender equality. To accomplish the
aforementioned goal, international conventions are crucial. In order to move on with the case, the
Honourable Court referred to international norms. In order to serve as a protector of citizens' rights and
freely enact laws in the absence of any legislative framework, it cited the Beijing Statement of Principles on
the independence of the judiciary in the LAWASIA region. After then, the Honourable Court cited the
CEDAW regulations. They were according to Article 11(1)(a) & (f), the State takes all necessary steps to end
discrimination against women in the workplaceii-

According to Article 24, the State will commit to implementing all national policies required to achieve full
realisation. the general guidelines established in Articles 11, 22, 23, and 24 of CEDAW, 1949. Unwelcoming
sexual behaviour, sexually suggestive comments, physical touch, etc. are all considered forms of sexual
harassment under article 11.

At the World Conference in Beijing, China, the Indian government also formally declared its intention to
create a National Commission in each sector to protect and advance women's rights.

3) The employer's responsibility

In addressing the third and last concern, the Supreme Court ruled that employers have a need to take all
reasonable steps to stop sexual harassment of this kind. To handle such problems and properly dispose of
them, the companies should have the right processes and forums.

The Vishaka Guidelines, which were created by the Hon. Supreme Court to prohibit sexual harassment in the
workplace, were to be regarded as a law established by Article 141 of the Indian Constitution. The Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013 was based on these
rules.

Conclusion

By releasing rules to prevent sexual harassment in the workplace, the Hon'ble Supreme Court of India made
significant progress towards women's empowerment through the Vishaka Case. In the lack of domestic
legislation, the Hon'ble Court drew inspiration from a number of international treaties and statutes, linked
them to national law, and created a brand-new law. It is admirable that the Indian judiciary made an attempt
to protect women in this specific case. Through the Vishaka Guidelines, the Hon'ble Court gave all women a
solid legal foundation on which to bravely combat sexual harassment. In contrast to earlier times when
sexual harassment claims were viewed as trivial, the Vishaka case altered public perception of these cases as
serious issues. Similar to how every coin has two sides, the Vishaka case shows that, despite India's efforts to
combat sexual harassment and gender inequality through employment and legal provisions, it was unable to
assume social responsibility for an equally safe workplace. Many instances of sexual harassment occur on a
regular basis but go unreported, despite the fact that the legislation is in place to protect women. Let's take
the hypothetical scenario where a woman eventually lands her ideal position at a software company. Sexual
harassment is inflicted on the lady. Despite her want to go and file a complaint against the harasser, she
decides against doing so. She is concerned that if she complains, her family members may stop her from
continuing to work for the company... Why? Because their family is afraid that since the woman has already
experienced harassment, it will happen again. Even now, individuals worry that the women in their homes
need to adapt until they are in a "safe" setting that meets their standards. It's not necessary to punish the
harasser for his actions and make sure he doesn't do them again. Even after so many years, women who
experience sexual harassment at work are still not guaranteed "safety," despite the fact that the law offers
remedies.
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