Case Study on Vishaka and Others vs. State Of Rajasthan (1997) 6 SCC 241
Written by: Ms Shalini Gupta
This case deals with the sexual harassment of a woman which was happened in the workplace. Sexual harassment is one of the most common crimes in India. Sexual harassment defines as any sexual act, attempt to obtain a sexual act, unwanted sexual comments, the threat of harm or physical force by any person regardless of relationship to the victim.
Sexual harassment is a type of crime which no women want. In India, women are worshipped as a goddess as they were given this position before ancient times. Still, it is a sad reality that they are not treated well by the men in the society. Before this case, there was no direct provision for sexual harassment cases. Therefore, this case is known as the landmark judgement on sexual harassment.
Facts of the case
There was a lady named Bhanwari Devi belonging to a lower caste, who was a social worker who lived in Bhateri which was situated in Rajasthan. On 22 September 1992, five men started beating her husband. When she ran to help her husband, three of the attackers raped her in the workplace. Before this attack, Bhanwari Devi tried to save the nine-month-old Gujjar’s girl from getting married at such an early age as she was against child marriage.
Therefore, the attackers i.e. Gujjars, dominant caste group in the village took revenge from her by raping her as they were angry as she tried to prevent the child marriage. She filed an FIR in the police station. The police did not take her complaint seriously and her medical test was conducted after 52 hours of the incident.
Generally, the medical test should be done within 24 hours of the incident as after that the evidence got disappeared. The accused got arrested after more than a year. But the trial Court acquitted the accused because of the insufficiency of evidence. They just got nine months of jail for assault and conspiracy.
After this judgement, the whole India fight for justice for Bhanwari Devi. Then Vishaka (Group for Women’s Education and Research) joined together with four other women’s organisations filed the writ petition under Article 32 of the Indian Constitution in the Supreme Court for the enforcement of fundamental rights of working women.[i]
Such an incident is the violation of Article 14, 15, 19(1)(g) and 21. Article 14 talks about equality before the law and Article talks about the prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
The Court analysed that the case is based on gender equality, recognising sexual harassment in the workplace as a violative of gender-based equality as the sexual harassment now becomes the social problem of the society and it is discriminatory for women.
According to Article 19(1)(g) of the Indian Constitution, this act violates the right of doing any profession as the work done by Bhanwari Devi was a part of her profession.
According to Article 21, every citizen has the right to live in a society with dignity.[ii] But in the present case, the accused had raped the victim and in the Indian society, it is believed that the women who were raped have no reputation at all and the society starts questioning the character of the women only.
Court also applied Article 11 and 24 of Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) to deal with the case. Article 11 of CEDAW[iii] states that States shall ensure that women get the same opportunities as men in employment, promotion, training, equal remuneration, social security and safe working conditions. Article 24 of the CEDAW states that the State shall undertake to adopt all necessary measures at the national level.
Decision of the Court
The judgement of this case delivered in August 1997 by a bench of then CJI Justice J.S. Verma, Justice Sujata Manohar and Justice B.N. Kripal.[iv] It was held 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..”[v]
Certain guidelines were being given in this case which has to be mandatorily followed by every workplace and mentioned that the guidelines were to be treated as law declared u/A 141. The guidelines are as follows
- It shall be the duty of every employer in workplaces to prevent such type of crimes. If such type of crime happens in their workplaces then the organizer of the workplace must provide certain facilities to the victim of the crime.
- For this purpose, the Supreme Court had defined the meaning of sexual harassment. 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 the victim has a reasonable apprehension of above-mentioned conduct in respect of her employment whether, in government, private or public enterprise and any of these acts is committed in circumstances such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for any women when she has reasonable grounds to believe that her objection with respect to her employment would lead to the disadvantage to her.
3. All employers and in-charge of any workplace should take necessary steps to prevent sexual harassment in the workplace. They should take the following steps:
a) Sexual harassment which has been defined above should be prohibited expressly through notification. It should be published and circulated in inappropriate ways.
b) The discipline rules and regulations of every government and public sectors should include rules prohibiting sexual harassment and provide for penalties for the offender in such rules.
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 in which the women have no fear of sexual harassment should be provided to them and no women employee should be in reasonable apprehension that she is disadvantaged in connection with her employment.
4. Where any offence related to the sexual harassment defined under the Indian Penal Code or any other law has been committed in the workplace, the employer shall initiate appropriate proceeding by filing a complaint to the proper authority. While complaining it should be ensured that victims or witnesses are not victimized.
5. If there is misconduct with respect to the employment for such conduct as given in relevant service rules appropriate disciplinary action should be initiated by the employer.
6. Whether that act constitutes an offence or not under any law, a complaint mechanism should be created in the organisation for the remedy of the complaint made by the victim.
7. If necessary, the complaint mechanism may constitute a complaints committee, a special counsellor or another support service. It should be headed by a woman and more than half members of it should be women. It should also involve a third party either NGO or other body who is familiar with these issues to prevent the undue influence from senior levels. The complaints committee should make an annual report and give it to the Government department concerned with the complaints and action were taken by them.
8. If necessary, the complaint mechanism may constitute a complaints committee, a special counsellor or other support service. It should be headed by a woman and more than half members of it should be women. It should also involve a third party either NGO or other body who is familiar with these issues to prevent the undue influence from senior levels.
9. Awareness for these issues should be created by notifying the guidelines in a suitable manner.
10. When sexual harassment has been committed by the third person or the outsider then the employer or person-in-charge will take all necessary and reasonable steps to assist the victim.
11. The Central/State Governments are requested to adopt measures including legislation so that the orders of this guidelines should also be followed in the private sectors.
12. These guidelines will not prejudice any rights available under the Protection of Human Rights, 1993.
In the end, it is not wrong to say that the Supreme Court has adopted judicial activism in a perfect way in the landmark case of Vishaka and ors. Vs State of Rajasthan and Ors. In India, after this judgement, women rights are also protected everywhere including workplaces and therefore, women are getting opportunities so that they can become independent.
It is very sad to know that in modern times also if any women face any sexual harassment their family did not support them to raise their voice and to punish the accused. Instead, they told them to keep quiet. They did not raise their voice because of their reputation also. Therefore, many laws have been made for the protection of women and many workshops are being held to help the women who are living in villages so that they should also know what to do if they are in danger.
[i] Joseph Rowntree, Special Rapporteur violence against women, https://blogs.lse.ac.uk/vaw/landmark-cases/vishaka-v-state-of-rajasthan/.
[ii] Maneka Gandhi vs Union of India 1978 AIR 597, 1978 SCR (2) 621.
[iii] International Bill for rights of women.
[iv] Pushpit Singh, Case summary-Vishaka and others vs St. of Raj., LEGAL NEWS, (May, 11, 2020, 10:17 AM), https://5thvoice.news/legalnews/NzM5Ng==/CASE-SUMMARY-VISHAKHA-AND-OTHERS-VS-STATE-OF-RAJASTHAN.
[v] Vishaka and others v. State of Rajasthan and others (1997) 6 SCC 241, AIR 1997 SC 3011, (1998) BHRC 261, (1997) 3 LRC 361, (1997) 2 CHRLD 202, https://www.equalrightstrust.org/ertdocumentbank/Microsoft%20Word%20-%20Vishaka_edited.pdf.
[vi] Vishaka & ors. vs St. of Raj & ors. AIR 1997 SC 3011, https://www.iiap.res.in/files/VisakaVsRajasthan_1997.pdf.
[vii] 2017 Gauge Data Solutions Pvt. Ltd.,Vishaka & ors. V St of Raj & ors., https://www.casemine.com/judgement/in/5609ad17e4b0149711410837.