CASE COMMENTARY

VISHAKA & ORS VS STATE OF RAJASTHAN & ORS

Citation:(1997) 6 SCC 241,AIR 1997 Sc 3011

Introduction
 In this case, a social worker from a tiny village in Rajasthan was victimised by a ruthless
gang rape while she was at work. The petitioners who brought a "class action" lawsuit
before the Supreme Court in the form of a PIL under Section 321 of the Indian
Constitution were a number of NGOs and social activists. They were all the same
petitioners.
 One of the reasons the NGO and social activists filed this PIL was to find practical ways
to educate people about the true meaning of "gender equality" at work and the prevalence
of sexual harassment at the workplace, mostly committed by employers.
 The petitioners in the lawsuit requested that the court solve this issue by using legal
procedure, making the workplace environment safer for women across the nation.

Brief Facts

 In the Indian state of Rajasthan, 55 kilometres from Jaipur, where the capital of Rajasthan
is located, lived Bhawari devi, a social worker.
 In order to prevent child marriage, the state government launched the "Women
Development Project" in 1985. Bhawari devi was hired as a social worker for the
initiative. She was one of many women recruited to the programme, serving as the
Sathini for Village Communication. When she got married, she was just 5 years old.
 The initiative opposed child marriage. She was working one day at the office to prevent
the marriage of a 9-month-old daughter who was a member of Ramkaran Gujjar's family.
Unfortunately, the family was able to wed the child the following day.
 On September 22, 1992, Bhawari devi and her husband were working in a field. As part
of their plan to extract revenge, the five men—Ram Sukh Gujjar, Gyarsa Gujjar, Ram
Karan Gujjar, and Badri Gujjar—as well as one Shravan Sharma—attacked Bhawari
devi's husband, who was then viciously gang-raped by all five of them.
 She visited the police station, but no one could assist her. She was instructed to leave her
lehenga (skirt) at the station in order to collect medical data. In her never-ending search
for justice, Bhawari Devi was able to lodge a complaint.
 A fifty-two-hour delay was experienced with the medical checkup. But the examiner only
included the victim's age in the report, not any rape commission.
 The district and sessions court in Jaipur dismissed the case and found all five defendants
not guilty in its ruling on November 15, 1995. Following the replacement of five judges,
the sixth judge declared the defendants innocent, reasoning that Bhawari's husband could
not have stood by while his wife was being gang-raped.
 After pressure from women's groups and non-governmental organisations, the State
government decided to appeal the verdict after a news story from the newspaper
 Rajasthan Patrika went viral. The matter was heard by the high court only once. At the
time of the high court proceeding, two of the five defendants had passed away.
 This prompted four organisations, including women's rights groups and an NGO called
"Vishakha," to join forces and file a petition to stop this vicious gang rape.
 This PIL, which these organisations filed in response to the heinous gang rape, focused
on the enforcement of women's fundamental rights at work under the terms of Articles
14, 15, and 21 of the Indian Constitution. It also brought up the issue of the need to
protect women from sexual harassment at work.

Issues Raised

 Whether breach of the rights to gender equality and to life and liberty occurs when sexual
harassment occurs in the workplace?
 Whether if there are no applicable measures under the current legislation, the court may
use international laws?
 Whether if an employee engages in sexual harassment, the company may be held
accountable?

Arguments made by both the parties:

 According to the petitioners, Bhanwari Devi wasn't the only woman to suffer such a
terrible crime; many other women also failed to come forward as a result of social
pressure and humiliation.
 The complainant also made the case, prior to the trial, that even though women can file a
formal complaint, there is no substantive recourse available to them because India lacks
established laws and/or regulations covering offences like the mistreatment of women at
work.
 The petitioner sought the court to tell the Indian government to resort to international
conventions and create rules governing matters like gender equality and workplace
harassment.
 The majority of the petitioners' arguments were based on the case of "Nilabati Behera v.
State of Orissa," in which the court cited a clause from the ICCPR to support its
conclusion that "an enforceable right to compensation is not alien to the concept of
enforcement of a guaranteed right" as a public law remedy under Article 32, distinct from
the private remedy in torts. Therefore, there is no reason why these international
conventions and standards cannot be applied to interpret the fundamental freedoms
explicitly enshrined in the Indian Constitution, which represent the core idea of gender
equality in all fields of human activity.
 The petitioner also cited the case "Minister for Immigration and Ethnic Affairs v. Teoh,"
in which it was determined that when there is a gap in the law or when a specific piece of
legislation is absent in relation to a legal matter, the court may refer to international
conventions, provided that they do not conflict with the basic human rights of the
population.

Judgement
 The three-judge panel that considered this issue, presided over by Justice J.S. Verma,
determined that even though there isn't a clause or article that specifically specifies
"gender equality," it is covered by articles 14, 19, and 21.

 Every time a woman experiences sexual harassment at work, it violates essential human
rights, particularly the idea of "gender equality," which in turn violates the fundamental
rights for women outlined above that are protected by the Indian Constitution. Such
violations also violate their fundamental right to practise any profession of their choosing
or to engage in any occupation, trade, or business, which is guaranteed to them under
Article 19 (1) (g).

 Due to this particular right, the employer is required by law to ensure that all employees,
male and female, work in an inclusive atmosphere and are treated equally. The court
observe tht right to life, as embodied under article 21 included the right to live with
dignity.
  The Supreme Court agreed with the petitioner and believed that setting up certain rules
and norms was the only way to stop crimes against women that would take place while
they are at work. The Indian government and the State of Rajasthan were given
instructions by the court to take the tightest possible measures to implement the court's
rules at all workplaces.

 The Supreme Court heard this case in 1997; at the time, India lacked legislation to
address "Gender Equality"-related issues as well as legislation to address crimes against
women committed at work. In this case, the Supreme Court ruled that in the lack of
legislation, the standards established should be regarded as the law for the purposes. In
reaching this decision, the Court utilised its authority under Articles 141 and 32 of the
Indian Constitution. The Court further stated that until the necessary legislation is passed,
these rules would be deemed to be the law.

 This court exercised the authority granted to it by Article 51(c) when read in conjunction
with Article 253 with regard to Entry 14 of the Union List of the Seventh Schedule of the
Constitution for the purpose of establishing the guidelines and norms, to the extent that
they do not violate any provision under domestic law. The Supreme Court believed that
by establishing these standards and regulations, it would fulfil both its obligations to
Indian citizens and its obligations under international law. The Beijing Statement of the
Principles of the Independence of the Judiciary in the LAWASIA region has India as a
signatory.

 These assertions place a duty on the judiciary of a nation to function independently and
uphold the minimal criteria necessary for it to function effectively and efficiently.

Analysis of the case:

 The Bhanwari Devi case dates back to 1997, a period when women were not viewed as
having the same rights as men. The patriarchal mindset that predominated at the time was
largely to blame for this behaviour. This was a contributing factor in the lack of
legislation protecting women from workplace discrimination of any type. Apart from this,
there was no law that would stop men from pestering women in a sexual manner at work.
 With the assistance of the union, India, and the State of Rajasthan, the court created the
infamous "Vishaka Guidelines" in the case of "Vishaka v. State of Rajasthan & Ors14.",
which would be implemented in every workplace to reduce violence against women that
they experience there.

Guidelines
 To prevent these offenses, and create a women-friendly environment at the workplace,
it would be the responsibility of the employer to formulate appropriate measures for
action that might be taken.
 Every place should have a special committee that would deal with these offenses.
 The apex court was of the opinion that these committee has been made to deal with
offenses against women. Thus, the committee should be headed by a woman, and also
should have an NGO dealing with the issues as an advisor to the committee.
 All the complaints in regards to sexual harassment faced by women at the workplace
would be dealt with this committee, and after a detailed investigation, appropriate
action can be initiated by the employer.
 “section 2 of the guidelines for the purpose of the guidelines defined “sexual
harassments” as for this purpose, sexual harassment includes such unwelcome sexually
determined behaviour as:
 Physical contact and advances
 A demand or request for sexual favors
 Sexually colored remarks
 Showing pornography
 Any other unwelcome physical verbal or non-verbal conduct of sexual nature.
 These guidelines were carefully formulated while referring to various international
convention and international laws that have been already implemented in many countries,
thus is in no manner ultra virus to any legislature of the domestic law.