Sexual harassment is an unwelcome behavior of sexual nature. Whether it be a
developed nation or developing nation or an underdeveloped nation, sexual
harassment at workplace is a widespread problem in the world. This is a problem
and it is universal which gives negative impact on both men and women. The
percentage of the happening of sexual harassment is more to women when compared
to men. These kinds of violation will always take place in spite of all the
efforts taken to protect, prohibit and prevent from happening. Sexual
harassments or unwelcome sexual advances, request for sexual favors and other
verbal or physical harassment of a sexual nature can be included under
The word unwelcome does not mean involuntary. There are certain cases in which
the victim may give consent or agree to certain conduct and they may actively
participate in it even though it is offensive and objectionable. Hence, the
sexual activities are said to be unwelcomed only when the person subjected to it
considers it unwelcome. This depends on the circumstance whether the person in
fact welcomed a request for date, sex-oriented comment or joke. When it comes to
sexual harassment at a workplace it can be considered as a violation of women's
right to equality, life and liberty under the Indian constitution. Due to these
types of activities, it creates an insecure and hostile work environment and
this may discourage women's participation in work and it adversely affecting
their social and economic empowerment and the goal of inclusive growth. As a
result of these sexual harassment cases there raises a need for legislature
enactment to address the sexual harassment of women at workplace.
This was first observed by the Supreme court in the landmark case of Vishaka
vs. state of Rajasthan
. With the powers entrusted under Article 32 of the
Indian constitution, the Supreme court due to the absence of any law at that
time framed guidelines to be followed at all workplaces or institution for
providing measures to check the evil of sexual harassment of working women until
the legislation is enacted for the same. After the judgment and with the help of
the guidelines framed by the hon'ble Supreme court the legislature formulated
the sexual harassment of women at workplace (prevention, prohibition and
redressal) act, 2013. This paper throws light on the facts and the judgment
given by the Hon'ble Supreme court in the Vishaka case
Summary Of The Facts:
In the year 1985 a woman named Bhanwari Devi from Bhateri started working under
the women's development project (WDP) which is run by the government of
Rajasthan. The employment position of Bhanwari Devi is as a saathin which in
Hindi means friend. As a part of her job, in the year 1987, she took up an issue
of attempted rape of a woman from a neighboring village. The members of the
village gave their full support for the act of Bhanwari Devi. She took up
another issued which is based on the government's campaign against child
marriage in the year 1992. But this campaign received a disapproval and
ignorance from the members of the village.
The village members were aware of the fact that child marriage is illegal and
rejected the idea of the government campaign. One of the family in that village
had made arrangement to perform a child marriage. Ram Karan Gurjar is the one
who planned a marriage for his infant daughter. Bhanwari Devi try to persuade
the family not to perform the marriage because of the work assigned to her, but
all her attempts to stop the marriage resulted in being futile. In spite of all
the things done by her the family decided to go ahead with the marriage.
The sub-divisional officer and superintendent of police on May 5 1992 went to
the village and stopped the marriage of a infant girl. Notwithstanding the order
of police, the marriage was performed on the next day and the police did not
take any action against the marriage. In the course of event the villagers found
out that the visit of the police was a result of Bhanwari Devi's actions. Due to
this Bhanwari Devi and her family was boycotted and Bhanwari also lost her job.
After that to seek vengeance on 22nd September five men among them four from the
Gurjar family- Ram Sukh Gurjar, Gyarsa Gurjar, Ram Karan Gurjar and Badri Gurjar
along with the family there was another one-man Shravan Sharma, they all
attacked Bhanwari Devi's husband and later brutally gang-raped her.
The police delayed the investigation and tried all possible ways to avoid
filling any complaint against the accused. After lot of struggles and facing so
much criticism Bhanwari Devi lodge a complaint. The medical examination was also
delayed and the examiner did not mention any commission of rape in her report.
Due to lack of evidence and with the support of local MLA all the accused
managed to get an acquittal in the trial court. As a result of this acquittal
many women activists and organizations came forward and supported Bhanwari Devi.
The organizations and women activists raised their voice against the injustice
and thus resulted in filling of a public interest litigation. The PIL was filed
by the group called “vishaka”. The PIL was filled for the enforcement of the
fundamental rights of women at workplace under the provision of article, 14, 15,
19, and 21 of the Indian constitution. The PIL also raised the issue relating to
the need for protection of women from sexual harassment at workplace.
Issues In The Case
- Whether sexual harassment at workplace amounts to a violation of rights
guaranteed under article14, 15, 19, and 21 of the constitution?
- Whether the employer is responsible for the happening of sexual
harassment at his workplace?
The petition was filed by a group named vishaka and they put their contention
saying that the sexual harassment for women at workplace violate the fundamental
rights guaranteed under article 14, 15, 19(1)(g) and 21 of the constitution of
India. Those articles guarantee the following:
- Article 14 gives equality before the law and equal protection of law to
all the persons
- Article 15 prohibits the person from discrimination on the grounds of
religion, race, caste, sex or place of birth.
- Article 19(1)(g) allows a person to practice any profession or to carry
on any occupation, trade or business.
- Article 21 gives a person their right to life and personal liberty.
Hence, the sexual harassment at workplace violates the above mention rights
given to the person under the Indian constitution. The petitioner also stated
the loopholes that the legislation has regarding the provision relating to the
safe working environment for women. The petitioner also requested the hon'ble
court to frame guidelines for prevention of sexual harassment at workplace.
In this particular case the respondent counsel did something unusual, the
learned solicitor general appeared on behalf of the respondent and he supported
the petitioner. The respondent counsel requested the hon'ble court to find out
an effective way to stop the sexual harassment for women at workplace and also
wanted to frame guidelines for the prevention of the same.
The article 14,19 and 21 of the Indian constitution enshrines gender equality as
a fundamental right. There is a clear violation of gender equality by the sexual
harassment in the work place which in turn violates these integral rights of the
female class. In nations across the globe the protection of females has become a
basic minimum requirement. When there is no domestic law to curb the evil, the
court could assist from the international conventions and statues. The
international conventions and statues can be referred only to the extent that it
does not violates or does not contravene with any of the provisions of domestic
law or do not violate the spirit of the constitution. This authority was given
to judiciary under article 51(c) and 253 r/w entry 14 of the union list of
seventh schedule of the constitution.
It was held by the hon'ble court that there was violation of fundamental rights
of the constitution and also reiterated upon the fact that right to life under
article 21 includes right to live with dignity. Therefore, the court of law
wanted to prevent the dignity of women at workplace and framed certain
guidelines which has to be followed. It was clearly mentioned by the supreme
court that the guidelines should be treated as law. Due to the lack of law which
can prevent sexual harassment and which can provide women with safe working
environment the hon'ble supreme court acknowledged the guidelines can be
considered as law.
- The first and foremost thing is the employer's or other equivalent
authorities are bound to preclude such incidents of sexual harassment from
- There has been a change in the definition of the term sexual harassment.
- The employer's or other authorities who is in charge must take
preventive measures like notification or circulars mentioning the
prohibition of sexual harassment and penalties mentioned by the government
against the offender.
- These types of offences fall under the purview of Indian penal code of
The great step was taken by the hon'ble Supreme court through the vishaka case,
towards the women empowerment by issuing guidelines to curb sexual harassment at
workplace. Due to the absence of domestic law the hon'ble Supreme court took
references from various international conventions and laws. After that the
hon'ble Supreme court connected it to the law of the land and gave a new law
altogether. The Indian judiciary has put a lot of efforts to safeguard women on
this particular case and this is commendable. As a result of vishaka guidelines
there is a strong legal-platform for all the women to fight against sexual
harassment boldly. In the past sexual harassment cases were looked upon as petty
matters but the vishaka case changed the outlook of sexual harassment cases as a
Every positive has its own negative, when we look into the case in our hand, we
can figure out that the Indian judiciary have tried to overcome the social evils
of gender discrimination and sexual harassment by providing an employment
opportunist and making provisions in the law, but it was failed in taking social
responsibility for an equally safe working environment. There are many sexual
harassment incidents taking place on a regular basics but many of them are not
reported. Even in educational institution there are lot of sexual harassment and
many of the students are afraid to file a complaint against the institution and
in some of the cases the students are afraid to share such incident to their
fellow colleagues. In the recent times the Chennai police arrested a teacher for
sexual harassment of the student. Why the women are afraid to lodge a complaint?
For example, we can take a woman who finally gets her dream job.
During her job she was harassed by her coworker and she decided to file a
complaint against the person who harassed her but she did not. She was worried
that if she lodged a complaint against, she may not be able to continue working.
Her family may stop her from working and there is a possibility that her total
career my loss because of that one particular complaint she filed. The family
stops her from working because they think that there is a possibility that she
might be harassed again. This view will change only when the people feel that
the working environment is safe for their family women to work. Though we have
remedies for the women who have been sexually harassed and the person who
harassed get punishment under the law, but there is no safety is assured and
even after so many years the sexual harassment has been happening again and
One of the most gifted pieces of law the court has ever enacted in the history
is vishaka judgment. This is because the court on seeking the importance and the
necessity for enactment of the law came directly into the ground to frame such
guidelines which would ensure that no such act of harassment against women goes
unpunished. This judgment is a landmark judgment not only because it laid
guidelines which has to be followed but it also does not hesitate to refer
international law when there is a absence of domestic law.
By the combined reading of article 253 read with entry 14 of union list in
seventh schedule the hon'ble supreme court found its authority to issue such
guidelines. In the vishaka judgment the constitutional principles of equality
and liberty have been upheld by the Hon'ble Supreme court of India. It is also
important to note that the true spirit of judicial activism has been portrayed
in this judgment and it has set an example to other nations.
- (1997) 6 SCC 241.
- Constitution of India.
Award Winning Article Is Written By: Ms.Aiswarya Lakshmi.J.S
Authentication No: JA200993390393-09-0122