This article is written by Sai Gayatri, pursuing an Introductory Course: Legal Writing For Blogging, Paid Internships, Knowledge Management, Research And Editing Jobs from Lawsikho.com.
Mahatma Gandhi once said – “The day a woman can walk freely on the roads at night, that day we can say that India has achieved independence.”
So, did India really achieve independence? I guess not. It has been seven decades since Mahatma Gandhi has spoken the above words and they still make sense when compared to the present-day scenario of women being subjected to sexual harassment, rape, gender discrimination, domestic abuse, eve-teasing, and so on in our country. It is a fact that India has been ranked first among the world’s most dangerous countries for women in the year 2018. This shows that even today, India has not achieved much in terms of women empowerment and their safety.
Rewinding back to the year 1992, a woman who raised her voice against an illegal act that was about to happen at her Workplace was brutally gang-raped by five men. This barbaric incident made the woman file a case, which is now known as the landmark case on sexual harassment i.e, Vishakha and Ors. vs State of Rajasthan and Ors. Let’s dig into the details of the case to know more about how the law regarding the safety of women against sexual harassment evolved in India in the past two decades.
Table of Contents
Quick insights on the case
NAME OF THE CASE
VISHAKA & ORS. V STATE OF RAJASTHAN & ORS.
CITATION OF THE CASE
(1997) 6 SCC 241
NAME OF THE COURT
HON’BLE SUPREME COURT OF INDIA
PETITIONERS IN THE CASE
VISHAKA AND ORS.
RESPONDENTS IN THE CASE
THE STATE OF RAJASTHAN AND ORS.
Chief Justice J.S. Verma,
JUDGMENT PASSED ON
13TH AUGUST 1997
Facts of the case
Bhanwari Devi, a woman belonging from Bhateri, Rajasthan started working under the Women’s Development Project (WDP) run by the Government of Rajasthan, in the year 1985. She was employed as a ‘Saathin’ which means ‘friend’ in Hindi.
In the year 1987, as a part of her job, Bhanwari took up an issue of attempted rape of a woman who hailed from a neighbouring village. For this act, she gained full support from the members of her village. In the year 1992, Bhanwari took up another issue based on the government’s campaign against child marriage. This campaign was subjected to disapproval and ignorance by all the members of the village, even though they were aware of the fact that child marriage is illegal.
In the meantime, the family of Ram Karan Gurjar had made arrangements to perform such a marriage, of his infant daughter. Bhanwari, abiding by the work assigned to her, tried to persuade the family to not perform the marriage but all her attempts resulted in being futile. The family decided to go ahead with the marriage.
On 5th May 1992, the sub-divisional officer (SDO) along with the Deputy Superintendent of Police (DSP) went and stopped the said marriage. However, the marriage was performed the next day and no police action was taken against it. Later, it was established by the villagers that the police visits were a result of Bhanwari Devi’s actions. This led to boycotting Bhanwari Devi and her family. Bhanwari also lost her job amid this boycott.
On 22nd September 1992, to seek vengeance, five men i.e, four from the above-mentioned Gurjar family- Ram Sukh Gujjar, Gyarsa Gujjar, Ram Karan Gujjar, and Badri Gujjar along with one Shravan Sharma had attacked Bhanwari Devi’s husband and later brutally gang-raped her.
The police had tried all possible ways to avoid filing any complaint against the accused which resulted in a delayed investigation. Even after facing so much criticism, Bhanwari Devi, with her incessant determination to get justice, managed to lodge a complaint. The medical examination was delayed for fifty-two hours. However, the examiner did not mention any commission of rape in the report but rather mentioned the age of the victim.
In the absence of sufficient evidence and with the help of the local MLA Dhanraj Meena, all the accused managed to get an acquittal in the Trial Court. But this acquittal resulted in a huge backlash from many women activists and organizations which supported Bhanwari. These organizations came together and raised their voice to attain justice, which resulted in the filing of a Public Interest Litigation (PIL).
The PIL was filed by a women’s rights group known as ‘Vishaka’. It laid its focus on the enforcement of the fundamental rights of women at the Workplace under the provisions of Article 14, 15, 19, and 21 of the Constitution of India, it also raised the issue of the need for protection of women from sexual harassment at Workplace.
Issues raised in the case
Whether sexual harassment at the Workplace amounts to a violation of Rights of Gender Inequality and Right to Life and Liberty?
Whether the court could apply international laws in the absence of applicable measures under the existing?
Whether the employer has any responsibility when sexual harassment is done to/by its employees?
A writ petition, seeking the writ of mandamus was filed by the ‘Vishaka’ group which comprised of various women’s rights activists, NGOs, and other social activists. They put forward their argument that the indecent acts of sexual harassment of women at Workplace violate the fundamental rights enshrined under Article14, 15, 19(1)(g) and 21 of the Constitution of India. The petitioners brought the attention of the Hon’ble court to the loophole that the legislation has regarding the provision of a safe working environment for women. They requested the Hon’ble Court to frame guidelines for preventing sexual harassment at Workplace.
The learned Solicitor General appearing on behalf of the respondents (with their consent) in this case did something unusual i.e, supported the petitioners. The respondent assisted the Hon’ble court in figuring out an effective method to curb sexual harassment and in structuring the guidelines for the prevention of the same. Fali S. Nariman – the amicus curiae of the Hon’ble court along with Ms. Naina Kapur and Ms. Meenakshi provided assistance to the Hon’ble court in dealing with the said case.
Judgment of the case
The lack of a law that would prevent sexual harassment and provide women with a safe working environment was acknowledged by the Hon’ble Supreme Court of India. Section 354 and 354A of the Indian Penal Code, 1860 were to be referred in any case of sexual harassment but these provisions were not specific to the issue at hand. This made the Hon’ble court realize the need for proper and effective legislation that would deal with sexual harassment.
The Hon’ble Court took reference from the international conventions to proceed with the case. It referred to the Beijing Statement of Principles on the independence of Judiciary in the LAWASIA region, to function as a guardian of citizens’ rights and independently make laws in the absence of any legislative framework. Then the Hon’ble court took reference from the provisions of Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). They were-
Article 11 (1) (a) & (f)- which states that the State takes all appropriate measures to eliminate discrimination against women in the field of employment.
Article 24- which states that the State shall undertake to adopt all necessary measures at the national level aimed at achieving the full realization.
The Hon’ble Supreme Court framed the guidelines to prevent sexual harassment at the Workplace, known as Vishaka Guidelines, that were to be treated as law declared under Article 141 of the Indian Constitution. These guidelines were the foundation for The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
The Vishaka guidelines (1997) 
EMPLOYER’S OR OTHER EQUIVALENT AUTHORITY’S DUTY– Employer or other responsible persons are bound to preclude such indecent incidents of sexual harassment from happening. In case such an act takes place, then the organization must consist of a mechanism to provide prosecutorial and conciliatory remedies.
DEFINITION – 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;
Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
MEASURES FOR PREVENTION– Employers or persons in charge of the workplace must take preventive measures such as an express prohibition of sexual harassment in the form of notifications or circulars, penalties by the government against the offender, appropriate work conditions in respect of hygiene, health and leisure.
PROCEEDINGS IN CASE OF MISCONDUCT– If the offenses committed are the ones that fall under the purview of the Indian Penal Code, 1860, then the employer is bound to take prosecutorial action by complaining to the appropriate authority.
APPROPRIATE DISCIPLINARY ACTION– If there is an occurrence of the violation of service rules, appropriate disciplinary action must be taken.
REDRESSAL MECHANISM– An organization must have a redressal mechanism to address the complaints. This must be irrespective of the fact that whether the act constitutes an offense under the Indian Penal Code, 1860, or any other law as such.
REDRESSAL COMMITTEE– Such a redressal mechanism or more precisely such a complaint committee must have women as more than half of its members and its head must be a woman. The committee must comprise of a counseling facility. It is also acceptable to collaborate with NGOs or any such organisations which are well aware of such issues. A report must be sent to the government annually on the development of the issues being dealt by the committee.
SPREADING AWARENESS– To raise sexual harassment issues, employer-employee meetings must be held. The employer must take appropriate actions/measures to spread awareness on the said issue.
Through the Vishaka Case, the Hon’ble Supreme Court of India took a great step towards the empowerment of women by issuing guidelines to curb sexual harassment at Workplace. The Hon’ble court took reference from various international conventions and laws in the absence of domestic law, then connected it to the law of the land and gave birth to a new law altogether. The efforts put in by the Indian judiciary, in this particular case to safeguard women is commendable. The Hon’ble Court through the Vishaka Guidelines provided a strong legal-platform for all the women to fight against sexual harassment boldly. The Vishaka case changed the outlook towards sexual harassment cases as serious issues, unlike the past when such cases were looked upon as petty matters.
Like every coin has its two sides, based on the Vishaka case, one can figure out that though India tried to overcome the social evils of gender inequality and sexual harassment by providing employment and provisions of law, it did not succeed in taking social responsibility for an equally safe working environment. Even after having the law on our side to safeguard women, there are many incidents of sexual harassment taking place regularly which get unreported.
As a small example, let us assume that a woman finally gets her dream job in a software company. The woman is subjected to sexual harassment due to some reason. She wants to go and lodge a complaint against the one who harassed her, but she chooses not to do it. She is worried that if she complains, then she might not be able to continue working in the company because her family members might stop her. Why? Cause the family fears that the woman has been harassed once, so she might be harassed again. The concern of people even today is that the female of their house must learn to adjust until she is in a “safe” environment according to their parameters. Not that the person who harassed her must be punished for what he has done and to see to it that he does not repeat it. Though there are remedies available with the law, for women facing sexual harassment at Workplace, the “safety” is not assured even after so many years.
FOOD FOR THOUGHT: There is a need for various Guidelines and an Act just to safeguard women on the working front. Why is it so hard for a woman to achieve the same freedom and opportunities that a man gets with not much of an effort?
The constitutional principles of equality and liberty have been upheld by the Hon’ble Supreme Court of India in the Vishaka Judgement. The inception of the law against sexual harassment has inspired many women to raise their voices against the suffering that they were silently subjected to until the year 1997. Vishaka Guidelines formed the basis for the establishment of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The true spirit of Judicial Activism has been portrayed in the Vishaka Judgement and it has been an inspiration to other nations. However, Bhanwari Devi, the spark that ignited the need for appropriate legislation to safeguard women against sexual harassment, even after two decades, is still awaiting justice to be served. It is paramount to take note of the fact that, though such comprehensive laws have been enacted to safeguard women in India, it still ranks as the most dangerous country for women. Maybe it is time to question ourselves, is it the law or is it us that must be responsible?
 (1997) 6 SCC 241
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