Guidelines

Presentation and preparation of file – 2 marks

Research – 3 marks

Application of the understanding of legal context – 5 marks

Legal reasoning and logic – 5 marks

Viva – 5 marks

Bibliography/ Research References

https://lawtimesjournal.in/vishakha-vs-state-of-rajasthan/
https://www.slideshare.net/saketsinghal/law-vishaka-case
https://www.iiap.res.in/files/VisakaVsRajasthan_1997.pdf
https://www.bbc.com/news/world-asia-india-39265653
https://www.lawteacher.net/free-law-essays/english-legal-system/sexual-harassment-during-
eve-teasing.php
https://www.latestlaws.com/articles/supreme-court-case-analysis-vishaka-and-ors-v-state-of-
rajasthan-and-ors-by-kavisha-gupta/
https://blogs.lse.ac.uk/vaw/landmark-cases/vishaka-v-state-of-rajasthan/
https://www.scribd.com/document/164229270/1-Case-Study-Vishaka-v-State-of-Rajasthan
https://www.equalrightstrust.org/content/ert-case-summary-vishaka-and-others-v-state-rajast
han-and-others-1997
https://www.equalrightstrust.org/sites/default/files/ertdocs//Microsoft%20Word%20-%20Visha
ka_edited.pdf
https://blogs.lse.ac.uk/vaw/landmark-cases/vishaka-v-state-of-rajasthan/
https://www.academia.edu/37178746/Vishaka_and_others_V._State_of_Rajasthan_and_oth
ers_1997
https://legaldesire.com/recap-vishakha-ors-vs-state-rajasthan-20-years-landmark-judgement-
rights-female-workers/
https://www.indiatimes.com/news/all-you-need-to-know-about-the-bhanwari-devi-case-that-le
d-to-the-formation-of-the-vishakha-guidelines-261665.html
https://indiankanoon.org/doc/1031794/

Doubts
Writ petition
Inter alia
 ​Case and Citation

Vishaka and others V. State of Rajasthan and others

Air 1997, Supreme Court 3011/

Writ Mandamus

Date of Decision: 13 August, 1997

1.Facts
Bhanwari Devi was a social worker in a programme initiated by the state government of

Rajasthan aiming to curb the evil of Child Marriage. Amidst, the protest to stop a child marriage

in one Ramakant Gujjar’s family Bhanwari Devi tried her best to stop that marriage. However,

the marriage was successful in its completion even though widespread protest. In 1992, to seek

vengeance upon her, Ramakant Gujjar along with his 5 men gang raped her in front of her

husband. The police department at first tried to dissuade them on filing the case on one pretext or

other but to her determination; she lodged a complaint against the accused. They were however,

subjected to harsh cruelty by the female police attendants even to the extent that for procuring

​ as demanded from her and she was left with nothing but her husband’s
evidence her ​lehenga w

​ dding to their misery, their request to spend the night in the police station
blood – stained ​dhoti. A

was also refused.

The trial court acquitted the accused but she didn’t lose hope and seeing her determination all

female social workers gave their support. They all filed a writ petition in Supreme Court of India

​ he apex court was called upon to frame guidelines for preventing

under the name ​‘Vishakha’. T

Sexual Harassment at Workplace.

The hon’ble court did come up with such guidelines as ​Vishakha Guidelines ​which formed the

basis of ​The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)

Act, 2013.

It has been laid down in the judgment above-mentioned that it is the duty of the employer or other

responsible persons in work places or other institutions to

1. Prevent the happening of such event

2. To furnish the employees with effective mechanism for the process of resolving &

trying of such indecent acts of sexual harassment

 3. For this purpose “​Sexual harassment​” means disagreeable sexually determined

behavior direct or indirect as:

● physical contact and advances;

● a demand or request for sexual favours;

● sexually coloured remarks;

● showing pornography;

● any other unwelcome physical, verbal or non-verbal conduct of sexual nature

…………………………………………………………………………………………………………………………………………

2.Issues

3.Relevant Legislation
○ Article 14: Equality before the law
○ Article 15: Prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth
○ Article 19 (1)(g): Right to practice one’s profession, or to carry on any
occupation, trade or business
○ Article 21: Right to life and personal liberty
In particular, the Court referred to India’s ratification of the Convention on
the Elimination of All Forms of Discrimination against Women (CEDAW),
which has prohibits discrimination in the workplace and outlines specific
state obligations to end it:

● Article 11(1)(a, f): The right to work and the right to protection of health and to
safety in working conditions, including the safeguarding of the function of
reproduction
● Article 24: States parties undertake to adopt all necessary measures at the
national level aimed at achieving the full realization of the rights recognized in
the present Convention
 ● General Recommendation No. 19: On the elimination of violence against
women.
Without domestic legislation to adequately address sexual harassment in
the workplace, the Court undertook measures to enforce gender equality
and non-discrimination in accordance with universal human rights norms
and standards.

IMPORTANT PROVISIONS OF THE ACT-:

1-The Act defines harassment at the work place and provides a mechanism
for redressal of complaints and also safeguards against the false charges.

2. The definition of “aggrieved woman”, WHO can get protection beneath the Act
is extraordinarily wide to hide all girls, no matter her age or employment
standing, whether or not within the organized or unorganized sectors, public
or personal and covers purchasers, customers and domestic employees
similarly.
3. whereas the “workplace” within the Vishaka tips is confined to the normal
workplace set-up wherever there's a transparent employer-employee
relationship, the Act goes abundant additional to incorporate organisations,
department, office, branch unit etc. within the public and personal sector,
organized and unorganized, hospitals, nursing homes, academic
establishments, sports institutes, stadiums, sports advanced and anyplace
visited by the worker throughout the course of employment as well as the
transportation.
4. Each leader is needed to represent an interior Complaints Committee at every
workplace or branch with ten or a lot of staff. The District Officer is needed to
represent a neighborhood Complaints Committee at every district, and if
needed at the block level.
5. The Committee is needed to complete the inquiry inside a fundamental
quantity of ninety days. On completion of the inquiry, the report are sent to the
leader or the District Officer, because the case could also be, they're
mandated to require action on the report inside sixty days.
6. The Complaints Committees have the powers of civil courts for gathering
proof.
7. The Complaints Committees square measure needed to supply for
conciliation before initiating Associate in Nursing inquiry, if requested by the
litigant.
 8. Penalties are prescribed for employers. Non-compliance with the provisions of
the Act shall be punishable with a fine of up to fifty thousand.

CRITICAL ANALYSIS OF THE ACT:

The molestation Act was a way hoped-for piece of legislation as a result of

before this act, there was no law to manipulate this matter and so it looked
as if it would be a major step towards making certain ladies a secure and
healthy work atmosphere. However, the Act still suffers from some flaws.

Firstly, it fails to hide those ladies operating within the agricultural

employees and defense force, that area unit mostly men – dominated
sectors.

Secondly, the act seems to be gender biased since it solely protects ladies.

Thirdly, the act has wide scope for false allegations. There area unit high
possibilities of those laws obtaining put-upon at the hands of girls for his or
her personal advantages.

Fourthly, the availability relating to the fixing of the financial compensation

per the economic potential of the person, makes it discriminatory since the
person with high rank and standing are going to be created to pay quite the
person with status, that out of nothing appears to serve any purpose
although being discriminatory in nature.

It is to not be denied that the Act marks a very important step in recognizing
a priority that affects most girls but heaps remains required to be done
since for a much better safety and protection of girls, one thing quite the
regulation of sexual conduct is required as a result of creating regulation to
guide the conduct of alternative person or ethical police investigation of
women’s lives solely strengthen the sexual stereotypes and sexual
orthodoxy.
Therefore, a additional demanding law is required to deal with the problem
of molestation with the support of and not at the price of women’s basic
rights.

4.Discussed precedent

5.Decision of Case/Judgement
Gender Equality finds place in Fundamental Rights enshrined under Article 14, 19 & 21. Sexual

Harassment at Workplace is a clear violation of gender Equality which in turn violates these

integral rights of the female class. Such harassment also results in the freedom provided under

Article 19(1)(g). The protection of females has become a basic minimum in nation across the

globe. In the absence of domestic law to curb the evil, assistance could be rendered from

International Conventions and Statues to the extent that it does not contravenes with any domestic

law or the do not violates the spirit of Constitution. The Judiciary derived this authority from

Article 51(c) and 253 r/w Entry 14 of the Union List of Seventh schedule of the Constitution. The

court held that such violation therefore attracts the remedy u/a 32.

The Indian Judiciary has time and again reiterated upon the fact that Right to life under Art. 21

also comprise Right to live with dignity. Such aforesaid dignity could and should be protected

with suitable guidelines. It is of utmost importance to frame some guidelines to fill the legislative

vacuum and curb the evil.

The apex court found authority in filling the legislative gap by making law so as to maintain the

Independence of Judiciary and its role envisaged under Beijing Statement of Principles and

Independence of Judiciary in LAWASIA region which was signed by the Chief Justice of the

Asia Pacific in 1995 as those representing the minimum standards necessary to be observed in

maintain an independent and effective Judiciary.

The judiciary found the following as source of the guidelines which would act as law of the land:

● Convention on the Elimination of all forms of Discrimination against Women (Article

11 & 24)

● General recommendations of CEDAW in this context (Article 11,22,23,24)

● At the 4​th​ World Conference on Women in Beijing, Govt. of India made an official

commitment to set up a National Commission at every level and in every sector that

will look after Women’s Rights.

The Supreme Court inter alia, clearly mentioned that the guidelines were to be treated as law

declared u/a 141.

6.Vishakha Guidelines
1. Employer or other answerable persons are bound to preclude such incidents from
happening. In the event of happening of such incidents the organization must consist of
mechanism to provide conciliatory and prosecutionary facilities.

2. Definition – For this purpose “Sexual harassment” means disagreeable sexually

determined behavior direct or indirect 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

3. Every employer other than providing services under (1) is under an obligation to

i. Expressly notify the prohibition of sexual harassment

ii. The rules/regulations of govt. & public – sector bodies must include rules/regulations
prohibiting sexual harassment.

iii. The Standing Orders of the private employer made under Industrial Employment
(Standing Orders) Act, 1946 should include such provisions to prohibit sexual harassment.

iv. The working conditions must be appropriate and not hostile to the woman employees of
the organization. Further, the female employees should feel a sense of equality in the
atmosphere.

4. When the offences committed are the one discussed under Indian Penal Code or any
other law, the employer is bound to start the prosecution with complaining to appropriate
authority.
Further, the employee must provide the victim all sort of protection while dealing with the
complaints.

5. Appropriate Disciplinary Action shall be taken in case there is a violation of service rules.

6. Irrespective of the fact that the particular act constitutes an offence under IPC or any other
law, the organization must have a redressal mechanism to deal with it.

7. The Complaint Committee must be headed by a woman and not less than half of the
members must be woman. For further assistance the committee shall also include NGO’s or
someone aware with such issues.

The committee must be adequate in providing relief to the victim with appropriate counseling
facilities. An annual report shall be submitted to the govt. by the committee informing the
former of the development regarding the said issue in the organization.

8. An employee-employer meet shall be arranged where the workers shall be allowed to

raise issues of sexual harassment.
9. The employer shall take adequate steps in order to spread awareness about the social
evil.

7. Critical Analysis
​ as called upon for the enforcement of the fundamental rights mentioned
The court in ​Vishakha w

under article 14, 19 & 21. The country had after 1991 seen rise in gender equality in terms of

employment. Since, 1991 more women were employed in establishments than pre 1991 period.

This rise also was a crucial factor in the rise of incidents of sexual harassment and related

offences. At that point of time there was no law to prevent & punish commission of such offences

therefore, majority of the incidents went unreported and hence unpunished. This was a black stain

on the Indian criminal justice system. Due to this absence of law, there were many gross

violations of rights & the victims had no remedy. The legislature was still silent on making any

law in such regard even after multiple incidents of similar nature where there was sexual

harassment. India in competing with the liberal world succeeded in providing employment to

women in order to achieve gender equality however, it failed miserably to provide a healthy

environment for such employment.

Therefore, in a class action, brought by various NGO’s and social workers, finally the apex court

brought this silence to an end. The court without hesitating in breaking its constitutional

boundaries (only to interpret law) formulated guidelines for the prevention of such incidents.

These guidelines are known as ​Vishakha guidelines. ​This was a welcome step by the SC where it

finally provided the victims of such incidents a law through which they can seek remedy.

This incident revealed the consequences to which a employed woman faces and the pressing need

for protection by any other procedure in the lack of statute. The court therefore felt the need to

find an alternative mechanism to deal with such incidents. These guidelines had the effect of

protecting female liberty in the employment establishment so that they could feel an atmosphere

of equality. The court ruled that violation of gender equality is violation of Right to life & liberty
mentioned under Article 21. Along with the violation of Art. 21, the court also found gross

violation of Article 14 & 15.

The court after a combined reading of Article 51(c) with Article 253 and Entry 14 of Union List

mentioned in 7​th​Schedule found that in the absence of relevant statutes the court can draw

inspiration from international law, treaties and conventions to resolve a problem.

Therefore, the court after a deep interpretation of:

● Convention on the Elimination of all forms of Discrimination against Women (Article

11 & 24)

● General recommendations of CEDAW in this context (Article 11, 22, 23, 24)

● At the 4​th​ World Conference on Women in Beijing, Govt. of India made an official

commitment to set up a National Commission at every level and in every sector that

will look after Women’s Rights.

came up with Vishakha guidelines to prevent the taboo that was in the past without any remedy.

The court ruled that Gender equality & right to work with dignity is injured whenever there is a

any incident of Sexual Harassment. These rights have gained universal acceptance therefore,

interpretation of international covenants and agreements is must to formulate such guidelines.

8. Conclusion
Vishakha judgment is one of the most gifted pieces of law the court has ever enacted in its history

since its inception. The court seeing the importance of the matter, came directly into the ground

by breaking all the restrictions upon it by the constitution and laid down such guidelines which

would ensure that no such act of harassment goes unpunished.

The court in the absence of domestic law didn’t hesitated in reading international law on the

subject matter (CEDAW). The SC found authority for such reference in combined reading of art.

253 read with entry 14 of Union List in Seventh Schedule.

The Vishakha judgment along with its importance also contains the rationality in the sense that it

does not over-pressurize the employer in constructing redressal mechanism. The judgment has

only directed what seems appropriate for employer in order to maintain the constitutional

principles of equality and liberty. The judgment can never be termed as one where judiciary

encroaches its boundaries irrationallyi.e. Judicial Overreach instead it is the best example of

judicial activism.