Vishakha & others V. State of Rajasthan & others (A.I.R 1997 SC 3011)
Updated: Aug 19, 2020
By – Surbhi Jain
(Mohanlal Sukhadia University College of Law)
Vishakha vs state of Rajasthan is a case which deals with the sexual harassment of woman at her workplace. Due to this case sexual harassment was presented in India for the first time. This decision helped a lot of girls to raise their voice against the injustice being done to them. This case is based on the violation of “Gender Equality” and “The Right of Life and Liberty” article 14, 15, 21 of Indian constitution. This case is also raised the issue of insult to woman and protection of woman. After the landmark judgment of this case it was accepted that there is a need of certain rules and regulations which deals with protection of woman at her workplace and the gender equality must become a lived reality and a need of our society. Sexual harassment is a kind of illegal behaviour towards a person that causes a high level of mental and emotional injury which is more dangerous than physical injury.
This was a case of 1997 where “ vishakha” ( non – governmental organisation ) and other woman’s welfare groups filed the public interest litigation against the state of Rajasthan and union of India to raised their feeling against the safety and protection from any kind of sexual harassment at the working place in which the supreme court laid down certain guidelines for the prevention of physical abuse and harassment. This case developed an idea to make sexual harassment free society.
Facts of the case –
· In 1992, a woman named as Bhawari Devi was employed as a village level social worker under the woman’s development project run by government of Rajasthan and it was the part of Bhawari Devi’s job to prevent and stop the child marriage in the society and report cases to the police.
· In one particular case it happened that Bhawari Devi reported a family which had belonged to the higher community to the police because of the arranged marriage of one-year old infant. She was exposed and boycotted by that family for her act because she was belonged to lower community and being interrupted by such a woman was against the pride of that peoples.
· In September 1997, to take revenge for the act of Bhawari Devi. Five people of that high-class family raped her in front of his husband and at her workplace. After this horrific event, firstly she went to the doctor who refused to make her medical report and the police abused her and also refused to write her report and she did not get justice anywhere just get insult.
· Despite disgrace and derogatory behaviour shown by the police and the doctor, she went to court and begged for impartiality. However, in the absence of sufficient evidence the court had exculpated the accused in the trial court.
· After this failure, various social organisations and woman activism also raised their voices for Devi’s fight for justice. Therefore, the P.I.L (public interest litigation) was filed for the woman’s protection from sexual harassment at her workplace and the matter came in the hands of supreme court.
· This case also represents the caste discrimination which is still present in society because the woman who was raped and tortured belongs to lower caste and tried to stop wrongful act which was done by the peoples of higher community, Along with this the police and doctor also did not help her as she is from lower society and the right which is given under article 15 of Indian constitution was violated.
Issues of the case –
The question was raised by the P.I.L in front of supreme court and in the bench of CJI, Sujata V. Manohar , B.N Kirpal and J.S Verma , the question was that where are the provisions of safety and protection for ladies who can protect them at her place of employment and if they are suffering from undue influence of sexual abuse and sexual pressure then who is responsible for that exploitation. The aim of this writ petition was paying attention towards the satisfactory procedure to prevent sexual harassment and inappropriate behaviour who is harassing woman at her workplace. The incident reveals the hazards and perils which a working woman may be tolerate and there is a great need of gender equality and woman’s security in our civilisation.
Question were also raised on a unjust and mean governmental system because whole of the government of Rajasthan said that we have nothing to do with it that it was an individual problem and the court dismissed the case on the grounds of incomplete evidence and under the influence of biasness and no one took the rape case seriously and it was a violation of article 32 (rights to constitutional remedies).
It was also demanded that it is very essential to implement a proper law regarding the sexual abuse and harassment which defines the various forms of sexual harassment and also describes punishment for those offences and make sexual harassment free workplaces where all the ladies can work without any fear of exploitation and unfairness.
Arguments and pleading of the parties –
· the petitioner explained the violation of victim’s fundamental rights of gender equality and right of life and liberty. There was a huge violation of article 14, 15, 21, of the Indian constitution. Article 19(1)(g) which represents a right to practice any profession, or to carry on any occupation, trade or business was also violated.
· The petitioner also emphasized that no responsible public authority helped her and fundamental duty which is explained in article 51-A(e) was an infringed. It was also disclosed that how the ladies are molested and exploited at their working places and warned to close their mouths and threatened to expel them from their jobs.
· It was also pleaded by the supreme court that there are various laws in India which is already deals with the offences relating of the woman’s security but the petitioner made it clear that there is no proper enforcement of law relating to the sexual harassment at workplace.
· The aggrieved party urged for judicial intervention to make workplaces safer for woman and also prayed to punish the accused of Bhawari Devi’s case. The supreme court observed that India was already a signatory to convention on elimination of all forms of discrimination against woman (CEDAW) and held that international conventions are to be read into the fundamental rights to enlarge their scope and advance their objectives. It thus, read the provisions of CEDAW (signed by India in1980) in the article 14, 15, 19, 21 of the constitution and laid down binding guidelines to be following by every private and public sector to ensure the dignity and safety of woman in the place if employment.
· It was argued by the opposition that the judiciary cannot make the laws, it can only interpret them. But the supreme court also makes it clear that under article 141 (law declared by supreme court to be binding on all courts) and article 142 (enforcement of decrees and orders of supreme court and orders as to discovery, etc.) court has a power to make certain laws.
The supreme court resisted such orthodox theoretical interpretations of separation of powers and proved that it would not hesitate to occupy the space vacatur by the legislature by its inaction to meet the ends of justice.
Legal provisions used and the judgement –
· After all the pleading the bench of supreme court accepts the necessity of providing needful provisions regarding the sexual harassment at workplace and declares certain guidelines which is known as “vishakha guidelines”.
· Vishakha guidelines are considered to be the most powerful tool for woman to guard them against sexual harassment and punish the guilty accused. In judgement, the court provided a set of guidelines for employers as well as other responsible persons or institution to ensure the prevention of sexual harassment , In accordance with article 141 ( law declared by supreme court to be binging on all courts ) of constitution these guidelines were to be considered as a law until appropriate legislation was created.
· In this judgement for the first time the definition of sexual harassment was given, it is defined as ‘Sexual harassment consists of unwelcomed sexually determined behaviour as physical sexual contact, sexual favour, sexual remark, pornographic content and also verbal and non-verbal conduct of sexual nature without the consent of woman. Whenever a sexual harassment takes place which amounts to a specific offence under law, the employer should take action by complaining about the same to the appropriate authority.
· It is the duty of every institution, department, office, company, etc to established appropriate mechanism of prevention should be created for redressal of the complaint. The complaint committee should be headed by a woman and not less than half of its members should be woman. Further, to prevent the possibility of any undue pressure or influence from senior levels such complaint committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
· The company should notify, publish and circulate the definition of sexual harassment in an appropriate way, the employers must ensure that victims and witnesses are not victimized. The employer needs to talk disciplinary action as per the norms and guidelines. If harassment is committed by a third party or an outsider, the employer still can talk necessary and preventive steps to support the affected person.
· The vishakha guidelines gain an institution mechanism that all ladies at workplace can be sexually harass, and the onus is to giving a sexual harassment free workplace is on the employer. This was landmark judgment because before 1997 there were no formal guidelines for how an incident involving sexual harassment at workplace dealt by an employer.
Various national laws regarding woman’s rights-
After independence, it was believed that woman should also get all the facilities that a human being gets. Keeping this in mind, all the laws have been implemented which would give strength to woman and they could live in the society without any violence.
National laws –
· the Indian penal code, 1860 deals with the substantive criminal law of India, it defines offence and prescribes punishment. It is also defined various kinds of offences which specially relates to woman like section 304-A (dowry death), section 312 ( causing miscarriage), section 375 (rape), section 376 (punishment of rape), section 376A ( punishment for causing death or resulting in persistent vegetative), section376B ( sexual intercourse by husband upon his wife during separation), section 376C ( sexual intercourse by the person in authority), section 376D ( gang rape), section 376E ( punishment for repeat offenders), section 498 ( enticing or taking away or detaining with criminal intent a married woman), section 498A ( husband or relative of husband of a woman subjecting her to cruelty), section 509 ( word, gesture or act intended to insult the modesty of the woman).
· Sexual harassment of woman at workplace (prevention, prohibition and redressal) act, 2013 is an act which deals with the offences of sexual harassment at workplace. This act includes several provisions of the vishakha guidelines that 1st requires the formulation of a code of conduct for workplace building on the vishakha guidelines. This act seeks to guard woman from harassment at their place of work in an exceedingly abundant wider sense.
· Constitution of India is the supreme law of our country, it gives six fundamental rights to every citizen of India. In some articles of constitution, discrimination of woman has been explicitly prohibited article 14 (right to equality), article 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), article 19 (right to freedom), article 21 (protection of life and personal liberty). In all other fundamental rights, the word ‘citizen’ means both male and female of every age. Hence woman is equally entitled for the protection of all fundamental rights along with men. There is no discrimination of woman relating to the fundamental rights in Indian constitution.
· The dowry prohibition act, 1961 is an act which defines dowry as an offence. Section 2 of this act defines the clear definition of dowry as any property or valuable security given or agreed to be given either directly and indirectly at and before or any time after the marriage. It also declares various penalties for giving, taking and demanding dowry.
· The indecent representation of woman (prohibition) act,1986 prohibits indecent representation of woman through advertisement or in publication, writing, paintings, figures, or in any other manner and for matters connected therewith or incidental thereto.
· Maternity benefit act,1961 deals which the rights of working woman in India to get maternity benefit at the time of confinement, miscarriage, sickness, death. The maternity benefit act is intended to achieve the object of doing social justice to woman workers.
· Equal remuneration act,1976 deals with equal pay for equal work for both men and woman. It is the duty of the employer to pay equal remuneration to men and woman for same work or work of a similar nature.
· The domestic violence act, 2005 is an act which is enacted to protect woman from domestic violence. The act provides for the first time in Indian law a definition of ‘domestic violence’ with this definition being broad and including not only physical violence, but also other forms of violence such as emotional, verbal, sexual, and economical abuse.
These are the major laws that protect woman from violence and injustice. There are some international laws which deals with the woman’s equality in all over the world. The united nations (UN) convention on the eliminations of discrimination against woman (CEDAW) is the most comprehensive treaty on the rights of woman and the international court of justice also ensure that woman’s human rights are respected by law.
With the help of this landmark judgement we got a perfect guideline who saved a lot of woman. Bhawari Devi had to struggle a lot for justice, but she did what the society desperately needed. India is a society where woman have been harassed for years but seeing women like Bhawari Devi fighting, other woman also gets courage. It is correct to say that any society that fails to harness the energy and creativity of its woman, is at a huge disadvantage in this modern world.
This case is very important but we got India’s first guidelines for sexual harassment at workplace, this judgement gave a foundation to sexual harassment of woman at workplace (prevention, prohibition and redressal) act, 2013. This is the time where we need of understand that woman’s rights are the human’s rights and as a human being the woman are entitled to get all the fundamental rights. She is not only a woman; she is living person and a part of society. This case is a good example of how to raise your voice against the violence happening with you. LET THE VOICE BE YOURS.
1. The constitutional law of India book by – Dr. J.N Pandey
2. The Indian penal code book by- prof. S.N Mishra
3. Women in law book by- prof (Dr.) Samiya Tabasum
[DISCLAIMER: This article is for general information only. We have tried to include as much information as possible but there are chances that some important information may have been missed .It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the this article shall not be liable for any act or omission based on this note].