PROJECT of Legal Language ON

Vishaka & Ors. V/s. State of Rajasthan & Ors. AIR 1997 SC 3011

A project on the subject of LEGAL LANGUAGE submitted to

By

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 INDEX

Sr. Contents Page

No. No.
01. Project Name with students details 1
02. Declaration 2
03. Acknowledgement 3
04. Index 4
05. Introduction 5
06. Earlier history of custodial violence and judicial approach 6
07. Constitutional provision for arrested person 7
08. Fact of the case 8-9
09. Legal issues 9
10. Arguments in favour of petitioner 10
11. Judgement 11
12. Effect of judgement 12-13

13. Opinion on the case study 14

14. Conclusion and Bibliography 15

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 INTRODUCTION

Vishaka & Ors. V/s. State of Rajasthan & Ors. AIR 1997 SC 3011 is a case which deals with
the evil of Sexual Harassment of women at her workplace. It is a landmark judgment case in
the history of sexual harassment which as being decided by the Supreme Court. Sexual
Harassment means uninvited/unwelcome sexual favor or sexual gestures from one gender
towards the other gender. It makes the person feel humiliated, offended and insulted to whom it
is been done. In many of the cases, it has been observed that homosexual labor harasses an
employee belonging to the same sex to which he belongs.

Sexual harassment is also termed as “Eve Teasing” in India, and it can be determined from the
following acts like- passing of indicative or typical comments or jokes, uninvited touching,
making appeals for sex, sexually blunt pictures or text messages or emails, discredit a person
because of sex.

The women of today being self-dependent and though holding good positions face harassment,
inequality, and biasness at workplace. Sexual offence is a serious offence which has destroyed
the reputation of many a public figure. Sexual harassment at workplace has always been one of
the most extreme subject of the women's movement from long time. The safety of women is
the most essential for the entire country but the scenario was completely destroyed after the
incident which took place in the year 1992 and popularly known as- The Vishaka Case. After
this the supreme court laid down guidelines for sexual harassment of women at workplace.

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 Earlier history of custodial violence and judicial approach

In India, before 1997, there were no formal guidelines for how an incident involving sexual
harassment at workplace should be dealt by a person. Women expressing sexual harassment at
workplace can lodge a complaint under Section 394 of the Indian penal code.

The judiciary could neither prevaricate nor procrastinate. It must respond to the knock of the
oppressed and the downtrodden for justice by adopting certain operational principles within the
parameters of the Constitution and pass appropriate directions in order to render and effective
relief. Judicial activism generally encompasses an area of legislative vacuum in the field of
human rights.

The Constitution has paved the base of equal status and number of legislations has provided
protection as well as support to the women in our country. The status of women in our country
has risen to the present level which may not be up to the mark but still satisfactory. 

Judicial Approach towards Sexual Offences:

State Of Maharashtra And Another vs Madhukar Narayan Mardikar on 23 October, 1990

(Supreme Court of India)

The court responded to the voice of a women activist. The Apex Court in this case laid down that
even a prostitute has a right to privacy-the unchastely of a woman does not make her open to any
and every person to violate her person as and when he wishes. She is entitled to protect her
person if there is an attempt to violate it against her wish. She is equally entitled to the protection
of law.

Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown aside.
At the most the officer called upon to evaluate her evidence would be required to administer
caution unto him before accepting her evidence. In the circumstances of the case however there
was sufficient corroboration of the fact of a police inspector's attempt to bend her by force to
submission which evidence was generated by the inspector's unsuccessful bid to camouflage the
incident into a prohibition raid.
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 Constitutional provision for arrested person

Article 20:
- The arrested person shall not be prosecuted or punished for the same offence twice.
- The arrested person shall not be compelled to be a witness against himself.
- The arrested person shall have protection against ex post facto law.

Article 22:
- A person arrested of an offence should be informed as soon as may be the grounds of
arrest.
- The arrested person shall not be denied the right to consult and be defended by a legal
practitioner of his choice.
- An arrested person should be taken to the Magistrate within 24 hours of arrest.

Right to Speedy Trail:

Justice delayed is justice denied. This is all the more true in a criminal trial where the accused is
not released on bail during the pendency of the trial and trial is inordinately delayed. The concept
of speedy trial is read into Article 21 as an essential part of the fundamental right to life and
liberty guaranteed and preserved under our Constitution.

Right of Appeal:
The arrested person shall have a right of appeal for correction/reversal of the order. An appeal is
a inferior one, whose judgment or decision the court above is called upon to correct or reverse.

Some Other Provisions:

1. Rules for Bail
2. Right against solitary confinement
3. Right against Inhuman Treatment
4. The fair trial is the foremost requirement of criminal proceedings and it is utmost right of
an accused

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 FACT 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.

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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.

LEGAL ISSUES

1. Whether sexual harassment at the Workplace amounts to a violation of Rights of Gender

Inequality and Right to Life and Liberty?

2. Whether the court could apply international laws in the absence of applicable measures
under the existing? 

3. Whether the employer has any responsibility when sexual harassment is done to/by its
employees?

4. Lack of a law that would prevent the occurrence of sexual harassment and provide
women with a safe working environment.

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 Arguments in favour of Petitioner

1. 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.

2. Existing vacuum in law should be filled which is created due to lack of legislative
measures by promoting gender equality in the workplace and preventing sexual
harassment of working women.

3. The international conventions and norms are to be read but not inconsistent with the
fundamental rights but in harmony with its spirit, in the absence of enacted domestic law
occupying the field.

4. Bhanwari devi was doing her duty of stoping child marriage which hurted the ego of the
person (men) whose daughter’s marriage was stopped. Hence, such an act of rape to be
done against a women who has just done her duty is a crime and the accussed needs to be
punished.

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 JUDGEMENT

The judgment of Vishakha's case was conveyed by Chief Justice J.S Verma as a representative of
Justice Sujata Manihar and Justice B.N Kripal on account of writ petition which was file by
Vishakha the victim of this case. The court observed that the fundamental rights under Article
14[2], 19[3](1)(g) and 21[4]of Constitution of India that, every profession, trade or occupation
should provide safe working environment to the employees. It hampered the right to life and the
right to live a dignified life. The basic requirement was that there should be the availability of
safe working environment at workplace.

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[3] 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)[4]. 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 Supreme Court held that, women have fundamental right towards the freedom of sexual
harassment at workplace. It also put forward various important guidelines for the employees to
follow them and avoid sexual harassment of women at workplace. The court also suggested to
have proper techniques for the implementation of cases where there is sexual harassment at
workplace. The main aim/objective of the Supreme Court was to ensure gender equality among
people and also to ensure that there should be no discrimination towards women at there
workplace.

After this case, the Supreme Court made the term Sexual harassment well defined, accordingly
any physical touch or conduct, showing of pornography, any unpleasant taunt or misbehavior, or
any sexual desire towards women, sexual favor will come under the ambit of sexual harassment.

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 EFFECT OF JUDGEMENT

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;
 Showing pornography;
 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.

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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.

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 OPINION ON THE CASE

In the present case, the Supreme Court specifically underlined the definition of Sexual
Harassment, which conveys any unwanted or uninvited physical touch or conduct or showing of
pornography or any definable sexual comments or texts will come under the ambit of Sexual
Harassment.

According to me any such conduct done directly hampers the right of women to life and it also
affects their dignity to live. It also hinders the mental and physical health of women. Sexual
harassment shall be avoided and the equality between the genders shall be established at
workplace.

The Supreme Court held out guidelines that, the person-in-charge of the particular institution,
organisation or office whether be it private or public, will be responsible in taking effective steps
to prevent sexual harassment. Penalties shall be charged from the accused people for conducting
sexual harassment. It had become a very crucial topic to act upon for the prevention of sexual
harassment women at workplace.

In case of private companies the strict rules regarding the punishment of sexual harassment shall
be included. In case the sexual harassment is conducted by the outsiders, the person-in charge of
that institution must take strict action for the conduct of such crime.

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?

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 CONCLUSION

Sexual Harassment of women at workplace happens at a very frequent rate in India. If any strict
action will not be taken towards this crime, it will directly hamper the working ration of the
women in India and on other hand it will hamper the economic situation of India. Government
should make strict laws regarding the aversion of sexual harassment at workplace, because it
should realize that, women also constitute the working population of our country.

It should be abolished to prevent the dignity and the respect of the women. Various new
approaches and skills shall be implemented by the institutions, organisations to prevent there
women employees from such a social evil. The main objective behind the stabilization of this
right is to promote gender equality at workplace without any kind of discrimination and
discernment among the workers of an organization.

 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? 

Biblography:

1. www.google.com
2. www.indiakanoon.org
3. www.wikipedia.com

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