1

ACKNOWEDGEMENT
I have endeavored to attempt this project. However, it would not
have been feasible without the valuable support and guidance of
123456789. I would like to extend my sincere thanks to her.
I am also highly indebted to 123456789, for their patient cooperation as well as for providing necessary information & also for
their support in completing this project.
My thanks and appreciations also go to my co-intern who gave their
valuable insight and help in developing this project.

ABSTRACT
Vishaka v. State of Rajasthan case based on Sexual Harassment, Sexual Harassment
means Sexual harassment in the workplace is usually associated with a heterosexual
employee making unwelcome sexual advances to another heterosexual employee of
the opposite gender. There are also cases where a homosexual employee harasses an
employee of the same sex. But can a heterosexual employee sexually harass another
heterosexual employee of the same gender
Sexual harassment in India is termed Eve teasing and is described as: unwelcome
sexual gesture or behaviour whether directly or indirectly as sexually coloured
remarks; physical contact and advances, showing pornography; a demand or request
for sexual favours; any other unwelcome physical, verbal/non-verbal conduct being
sexual in nature. The critical factor is the unwelcomeness of the behaviour, thereby
making the impact of such actions on the recipient more relevant rather than intent of
the perpetrator. According to Indias constitution, sexual harassment infringes the
fundamental right of a woman to gender equality under Article 14 of the Constitution
of India and her right to life and live with dignity under Article 21 of the
Constitution. Although there is no specific law against sexual harassment at workplace
in India.
As observed by Justice Arjit Pasayat: While a murderer destroys the physical frame
of the victim, a rapist degrades and defiles the soul of a helpless female.
In this case Supreme Court laid down the following guidelines which recognized it not
only as a private injury to an individual woman but also as the violation of her
fundamental rights. These guidelines are significant because for the first time sexual
harassment is identified as a separate category of legally prohibited behavior. These
are subjected to all workplaces until any other legislation is passed by parliament in

this regardbased on the Vishaka guidelines, the Government of India, together with
the civil society has proposed several draft laws between 2005 and 2010. However,
the latest draft Protection of Women against the Sexual Harassment at the Workplace
Bill, 2010, introduced in the Parliament on December 7, 2010 is entirely a
government version; the absence of civil society consultation on this draft is acute.

CONTENT
Page No.

1. Summary of the case

05
2. Introduction
08

3. Scenario in the post-Vishakha guidelines period

10

4. Definition of sexual harassment at work

10
5. The Vishakha guidelines

11
6. Critical analysis of Judgement given in VISHAKHA CASE.

13

7. The Protection of Women against Sexual Harassment at Work Place Bill, 2016

15
8. Conclusion

17
9. References
19

OBJECTIVE/AIM OF THE STUDY

To understand that why VISHAKHA GUIDELINE cam into existance.

To know how a judgement (vishakha guideline) became a law as earlier there
were no such law to amend so how law made by Judges.
Neccesity of such law.

IMPORTENCE

From this project we will understand making of vishakha guideline and their
neccesity.we will understand how this could happen that law made by judgement
without amending. We will see how much crime this law can privale or how much
rights women has got against sexual harrasment on workplace.
SCOPE OF THE STUDY
In this project we will mainly deal will guideline given by Judges in respect of
Banwari case, so this project will be limited upto law against sexual harrasment of
women.
LITERATURE REVIEW
In my project i have included some relevent things from articles

FRAGILE

SPACE:

SEXUAL

HARASSMENT

AND

THE

CONSTRUCTION OF INDIAN FEMINISM BY MADHAVI SUNDER,

In this article, author explicates sexual harassment in India as a crime related to
womens everyday struggle to challenge traditional boundaries and reformulate
identities, according to him Sexual violence is often used to thwart these challenges
and lock Indian women into traditional roles. The resulting process-based He talked
about Indian analysis of sexual harassment, which departs from traditional victimbased analyses of the crime in the West, serves as one example of Indian feminists
self-consciously creating a legal reform movement that both engages international
dialogue on sexual harassment, and integrates that dialogue with its own particular
history to create a distinct legal reform and likewise things he has given in his article.

SEXUAL HARASSMENT OF WORKING WOMEN BY RAMNI

TANEJA ADVOCATE, NEW DELHI.

In this article author discussed Unequal employment opportunities as adults, reduced

access to healthcare at all ages, Discrimination and its effect that threatens womens

very survival. According to him women are harder than men; Indias sex ratio has
declined from 972 in 1901 to 927, putting 50 million in the missing category. He has
discussed the Girl Child Scheme, which is aimed at transforming the social
perception of girls from curses and liabilities to sought-after family members,
especially among the very poor who live below the poverty line.

REFINING THE REGULATION OF SEXUAL HARASSMENT BY

VIRGINIA GRAINER.

According to auther, Sexual harassment is no longer the novelty it was in the 1970s
and early 1980s. It is now recognized for what it is - an abuse of power most often
perpetuated by men against women. Anita Hill's experience has confirmed for the
world that allegations of sexual harassment are to be taken seriously. Hopefully,
considerable progress has been made in this jurisdiction since 1985 when the Equal
Opportunities Tribunal virtually apologised to a defendant for finding him guilty of
sexual harassment. It is time to stop congratulating ourselves that the problem is now
acknowledged and that procedures exist to cope with it. These procedures must be
refined so that they are no longer the blunt instruments they once were. Refining the
regulation of sexual harassment must be placed high on the agenda of legal change. So
in this article auther has given comparision between old laws and new laws regarding
sexual offences, that have I added in my project.

ALONG THE SPECTRUM OF WOMEN'S RIGHTS ADVOCACY: A

CROSS-CULTURAL COMPARISON OF SEXUAL HARASSMENT
LAW IN THE UNITED STATES AND INDIA BY LOUISE FELD.

In this article, it was contended that, The United States and India, represents an
opportunity for feminists to work together in order to confront a pressing problem.
Valuable comparisons educate feminists in both India and the United States about their
respective sexual harassment protections and how those protections function
simultaneously to help and hurt women in the workplace.

LAW MAKING BEYOND LAWMAKERS: UNDERSTANDING THE

LITTLE RIGHT AND THE GREAT WRONG (ANALYZING THE
LEGITIMACY OF THE NATURE OF JUDICIAL LAWMAKING IN
INDIA'S CONSTITUTIONAL DYNAMIC) BY SHUBHANKAR DAM.

Recent years have witnessed a novel culture dominate the workings of the Indian
judiciary and basically this has been discussed in yhis article. A process that began
nearly twenty-five years ago has changed the internal dynamics of Indias
constitutional democracy. Authored by the Indian Supreme Court, the novelties have
refashioned the institutional order in a manner historically unknown to constitutional
democracies. The new order has seen the emergence of the Court in stature,
domestically and beyond. The least dangerous branch in history became Indias
most assertive organ.For some the judiciary is the sanctuary of Indian humanity and
for others it is the worlds most powerful court. And some other issues also been
discussed.
RESEARCH METHODOLOGY
The method of Doctrinal reasearch has been followed.
HYPOTHESIS
In this project we assume that the gudelines given in Judgement has good effect to
prevent such type of crime.there were no seperate law against sexual harrasment ,and
these guideline came as a law given by Judges.These guideline are enough to get
justice in such type of cases.
SUMMARY OF THE CASE
a) Judgement

In disposing of the writ petition with directions, it was held that: The fundamental
right to carry on any occupation, trade or profession depends on the availability of a

safe working environment. The right to life means life with dignity. The primary
responsibility for ensuring such safety and dignity through suitable legislation, and the
creation of a mechanism for its enforcement, belongs to the legislature and the
executive. When, however, instances of sexual harassment resulting in violations of
Arts 14, 19 and 21 are brought under Art 32, effective redress requires that some
guidelines for the protection of these rights should be laid down to fill the legislative
vacuum.1
Quoram
J.S. Verma C.J.I.
Mrs. Sujata V. Manohar
B.N. Kirpal. JJ.
Dr. A.S. Anand, C.J.I.
V. N. Khare, J.

Statutes referred

Constitution of India Article 14 (the right to equality) Article 15 (the right to non
discrimination) Article 19(1)(g) (the right to practise ones profession) Article 21
(the right to life) Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW) Article 11 ([State] takes all appropriate measures to
eliminate discrimination against women in the field of employment) Article 24
([State shall] undertake to adopt all necessary measures at the national level aimed at
1http://www.dnaindia.com/india/report-explained-vishakha-judgment-on-sexualharassment-at-workplace-1923309

achieving the full realization)

Cases referred

Nilabati Behera vs. State of Orissa 1993(2) SCC 746

b) Case (Background)
In India before 1997, there was no formal guidelines for how an incidents involving
sexual harassment at workplace should be dealt by an employer. Women experiencing
sexual harassment at workplace had to lodge a complaint under Section 354 of the
Indian Penal Code that deals with the criminal assault of women to outrage womens
modesty, and Section 509 that punishes an individual or individuals for using a
word, gesture or act intended to insult the modesty of a woman. These sections left
the interpretation of outraging womens modesty to the discretion of the police
officer.2
FACTS OF THE CASE
Bhanwari Devi was a social worker (saathin) at rural level in a development
programme initiated by State Government of Rajasthan, aiming to end the evil of child
marriages in villages of Rajasthan.
Once, as a part of her work, she tried to stop Ramkaran Gujjars daughter marriage
who was an infant but marriage took place. As a result of this, Bhanwari Devi was
subjected to social boycott.
In September 1992, she was gang-raped by a group of five men in which one was
Ramkaran himself. It happened in front of his husband.
The only doctor in the Primary Health Centre refused to examine Bhanwari and the
doctors at Jaipur only confirmed her age without mentioning any reference to rape in
his medical report. At the police station too, the women constables taunted her
2indiankanoon.org/doc/1031794

10

throughout the night. Even in past midnight policemen asked Bhanwari to leave her
lehenga behind as evidence and return to her village. She was left with only her
husbands bloodstained dhoti to wear.
Accused was acquitted by trial court but Bhanwari was determined to fight further and
get justice. She said that she had nothing to be ashamed of and that the men should be
ashamed due to what they had done, so she took the case in High Court. On December
1993, the High Court made a statement, it is a case of gang-rape which was
committed out of vengeance.
This sentence provoked womens groups and NGOs to file a petition in the Supreme
Court of India. The groups had filed a petition in the Supreme Court of India, under
the name Vishaka, asking the court to give certain directions regarding the sexual
harassment that women face at the workplace. The result is the Supreme Court
judgement, which came on 13th August 1997, and named as the Vishaka guidelines.
ARGUMENTS
The Counsels in the Supreme Court argued for implementing the sexual harassment
prevention guidelines that sexual harassment of women at workplace violates Article
14, 15 and 21 the Constitution of India and violate the constitutional rights of woman.
They argued that gender quality includes protection from sexual harassment and right
to work with dignity, which is a universally recognized basic human right. The
common minimum requirement of this right has received global acceptance. The
international conventions and norms are therefore of great significance in the
formulation of the guidelines to achieve this purpose.
The obligation of the court under Art. 32 3 of the Constitution of the enforcement of
these fundamental rights in the absence of legislation must be viewed along with the
role of judiciary envisaged in the Beijing statement of principles of the independence
of the judiciary in the LAWASIA region. There principles of the Independence of the
judiciary in the LAWASIA region. There principles were accepted by the Chief
3http://www.indiankanoon.org/doc/237570/

11

Justices of the Asia and the pacific at Beijing in 1995 as those representing the
minimum standards necessary to be observed in order to maintain the independence
and effective functioning of the judiciary. The objectives of the judiciary mentioned in
the Beijing statement are:
The objectives and functions of the judiciary include following:
(a) To ensure that all persons are able to live securely under the Rule of Law.
(b)To promote, within the proper limits of the judicial function, the observance and the
attainment of human rights; and
(c)To administer the law impartially among persons and between persons and the
state.
RATIO DECIDENDI
The present writ petition has been brought as a class action by a group of certain
social activitists and NGOs with the aim of focusing attention towards their sociatal
abberration and assisting in finding suitable methods for realisation of true concept of
gender equalityand to prevent sexual harrasment of working women in all work
places through judicial process,to fill the vacuum in existing legisletion.4
ORBITOR DICTA
At the Fourth World Conference on Women in Beijing, the Government of India has
also made an official commitment, inter alia, to formulate and operationalize a
national policy on women which will continuously guide and inform action at every
level and in every sector; to set up a Commission for Womens to act as a public
defender of womens human rights; to institutionalise a national level mechanism to
monitor the implementation of the Platform for Action..5

4http://www.slideshare.net/shobhitshukla904/admin-law-presentation
5http://www.iiap.res.in/files/VisakaVsRajasthan_1997.pdf

12

CONCLUSION
Vishakha guidelines against sexual harassment prove to be ineffective if they are not
followed up by prompt action and dissemination within the country. However, the i
still

feels

that

specific

customised

guidelines

for

our

country

prove

advantageous.Unions have a duty to make members aware of the nature and scope of
the problems involved, to take action to prevent sexual harassment occurring and to
set up a grievance procedure to deal with it. Male trade unionists will need to examine
their behaviour towards women at work and in the union. The more the problem of
sexual harassment is discussed in the open by the trade unionists, both female and
male, the easier it will become to eliminate it from the workplace.
Vishakha guideline initiatives
There were no formal guidelines for how an incidents involving sexual harassment at
workplace should be dealt by an employer. Women experiencing sexual harassment at
workplace had to lodge a complaint under Section 354 of the Indian Penal Code that
deals with the criminal assault of women to outrage womens modesty, and Section
509 that punishes an individual or individuals for using a word, gesture or act
intended to insult the modesty of a woman.After that Bhanwari devi vs state of
Rajasthn happened in which a social worker was repes by men just because she tries to
stop child marriage.In respect to that a party of social worker women loaded complain
for not having enough guideline for sexual harrasment cases.
Sexual Harassment at the Workplace (SHW) has remained one of the central concerns
of the womens movement in India since the early 80s. During the 1980s, militant
action by the Forum Against Oppression of Women (Mumbai) against the sexual
harassment of nurses in public and private hospitals by patients and their male
relatives, ward-boys and other hospital staff; of air-hostesses by their colleagues and
passengers;

of

teachers

by

their

colleagues,

principals

and

management

representatives; of PhD students by their guides and so on and so forth received a

lukewarm response from the trade unions and adverse publicity in the media (FAOW,

13

1991). But this trivialisation did not deter the womens rights activists. More and more
working women started taking systematic action against SHW. During the 1990s, the
most controversial and brutal gang rape at the workplace involved a Rajasthan state
government employee who tried to prevent child marriage as part of her duties as a
worker of the Women Development Programme. The feudal patriarchs who were
enraged by her (in their words: a lowly woman from a poor and potter community)
guts decided to teach her a lesson and raped her repeatedly (Samhita, 2001). After an
extremely humiliating legal battle in the Rajasthan High Court the rape survivor did
not get justice and the rapists educated and upper caste affluent men -- were
allowed to go free. This enraged a womens rights group called Vishakha that filed PIL
in the Supreme Court of India (Combat Law, 2003).
Some noteworthy complaints of SHW that came into the national limelight were filed
by:

Rupan Deo Bajaj, an IAS officer in Chandigarh, against super cop K.P.S Gill.

An activist from the All India Democratic Women's Association, against the
environment minister in Dehra Dun.

An airhostess against her colleague Mahesh Kumar Lala, in Mumbai.

An IAS officer in Thiruvananthapuram, against the state minister.

Before 1997, women experiencing SHW had to lodge a complaint under Section 354
of the Indian Penal Code that deals with the criminal assault of women to outrage
womens modesty, and Section 509 that punishes individual/individuals for using a
'word, gesture or act intended to insult the modesty of a woman'. These sections left
the interpretation of 'outraging women's modesty' to the discretion of the police
officer.
In 1997, the Supreme Court passed a landmark judgment in the Vishakha case laying
down guidelines to be followed by establishments in dealing with complaints about
sexual harassment. The court stated that these guidelines were to be implemented until
legislation is passed to deal with the issue (Mathew, 2002).

14

Scenario in the post-Vishakha guidelines period

Several organisations have carried out research on SHW that has been widely
disseminated. A survey by Sakshi (Delhi) throws up some worrying data: 80% of
respondents revealed that SHW exists, 49% had encountered SHW, 41% had
experienced SHW, 53% women and men did not have equal opportunities, 53% were
treated unfairly by supervisors, employers and co-workers, 58% had not heard of the
Supreme Courts directive of 1997, and only 20% of organisations had implemented
the Vishakha guidelines (Dalal, 2003). Controversy over SHW by the senior manager
of Infosys (Nair, 2003), by the chairman and managing director of NALCO
(Ramanujan, 2004), the Medha Kotwal petition on SHW of a PhD student by her
guide at M S University, Vadodara, complaints against a senior professor at Lucknow
University (Times of India, 2003), complaints about SHW by the film star Sushmita
Sen against the CEO of Coca-Cola have all alerted employers to the economic burden
and efficiency loss from SHW. Still, most private companies refrain from investing
funds in such committees.
A Sophia Centre for Womens Studies and Development study shows that awareness
and implementation of the Supreme Court's guidelines is very low and there is a need
to spread awareness about the same. A study by Samhita (Kolkata), throwing light on
the Bhanvari Devi case, has highlighted to the state and civil society the gravity of the
menace of SHW (SCWSD and ICHRL, 2003).
Definition of sexual harassment at work
The Supreme Court directive of 1997 clearly and unambiguously provides an answer
to the question What is sexual harassment?.
As defined in the Supreme Court guidelines (Vishakha vs State of Rajasthan, August
1997), sexual harassment includes such unwelcome sexually determined behaviour as:

15

Physical contact

A demand or request for sexual favours

Sexually coloured remarks

Showing pornography

Any other unwelcome physical, verbal or non-verbal conduct of a sexual

nature, for example, leering, telling dirty jokes, making sexual remarks about a
person's body, etc

The Supreme Court directive provided the legitimate space for the hidden truth about
SHW to surface; earlier one only heard about victim-blaming, witch-hunting and
blackmailing. Now women are fighting back tooth and nail. The electronic and print
media have become extremely responsive to the issue of SHW. My firsthand
experiences with providing support to women survivors of SHW has convinced me
that we need to counter the myths about SHW with concrete facts, case studies and a
database.
The

Vishakha

guidelines

categorically

state

that:

It is the duty of the employer or other responsible persons in the workplace or

institution to:

Prevent sexual harassment

Provide mechanisms for the resolution of complaints

All women who draw a regular salary, receive an honorarium, or work in a voluntary
capacity in the government, private sector or unorganised sector come under the
purview of these guidelines.
Complaints mechanism

All workplaces should have an appropriate complaints mechanism with a

16

complaints committee, special counsellor or other support services.

A woman must head the complaints committee and no less than half its
members should be women.

The committee should include an NGO/individual familiar with the issue of

sexual harassment.

The complaints procedure must be time-bound.

Confidentiality must be maintained.

Complainants/witnesses should not experience victimisation/discrimination

during the process.

Preventive steps

Sexual harassment should be affirmatively discussed at workers' meetings,

employer-employee meetings, etc.

Guidelines should be prominently displayed to create awareness about the

rights of female employees.

The employer should assist persons affected in cases of sexual harassment by

outsiders.

Central and state governments must adopt measures, including legislation, to

ensure that private employers also observe the guidelines.

Names and contact numbers of members of the complaints committee must be

prominently displayed.

Employers responsibilities

17

Recognise sexual harassment as a serious offence.

Recognise the responsibility of the company/ factory/workplace to prevent and

deal with sexual harassment at the workplace.

Recognise the liability of the company, etc, for sexual harassment by the
employees or management. Employers are not necessarily insulated from that
liability because they were not aware of sexual harassment by staff.

Formulate an anti-sexual harassment policy. This should include:

1. A clear statement of the employer's commitment to a workplace free of unlawful

discrimination

and

harassment.

2. Clear definition of sexual harassment (using examples), and prohibition of such

behaviour

as

an

offence.

3. Constitution of a complaints committee to investigate, mediate, counsel and resolve

cases of sexual harassment. The Supreme Court guidelines envisage a proactive role
for the complaints committee, andprevention of sexual harassment at work is a crucial
role. It is thus imperative that the committee consist of persons who are sensitive and
open

to

the

issues

faced

by

women.

4. A statement that anyone found guilty of harassment after investigation will be

subject to disciplinary action.

The range of penalties that the complaints committee can levy against the
offender should include:

5. Explicit protection of the confidentiality of the victim of harassment and of

witnesses.
6. A guarantee that neither complainant nor witnesses will be subjected to retaliation.
7. Publishing the policy and making copies available at the workplace. Discussing the
policy with all new recruits and existing employees. Third-party suppliers and clients

18

should

also

be

aware

of

the

policy.

8. Conducting periodic training for all employees, with active involvement of the
complaints committee.
Employers duty
Freedom from sexual harassment is a condition of work that an employee is entitled to
expect. Womens rights at the workplace are human rights.
CRITICAL ANALYSIS OF JUDGEMENT GIVEN IN VISHAKHA CASE
JUDGEMENTThe judgment was delivered by Chief Justice J.S.Verma, on behalf of Justice Sujata
Manohar and Justice B.N. Kirpal, on a writ petition which was filed by Vishaka. The
court observed that it is fundamental right of working woman under article 14 6, 197(1)
(g), and 218 of the constitution to carry on any occupation, trade or profession but it
should be ensured that trader should provide a safe working environment at work
place. It was of the view that the fundamental right to carry on any occupation, trade
or profession depends on the availability of a safe working environment. The right
to life means life with dignity.
The Supreme Court referred to various international human right 9 instruments,
including CEDAW10 and observed that every woman has a fundamental right to
freedom from Sexual Harassment. Supreme Court has laid down guidelines to be
followed by employees to prevent sexual harassment of women employees. The
guidelines are mandatory till they are replaced by legislation.

6 Article 14(the right to equality)

7 Article 19(I)(g) (the right to practice ones profession)
8 Article 21(the right to life)
9 Nhrc.nic.in/hract.htm
10Convention on the Elimination of All forms of Discrimination against Woman.

19

This is implicit from Article 5111 and the enabling power of the Parliament to enact
laws for implementing the International Conventions and norms by virtue of Article
25312 read with entry 14 of the union list in Seventh of the Constitution.
Court ruled out that at every workplace there should be a sexual code and there should
be a proper mechanism to enforce cases which fall under the ambit of this sexual
harassment code. The main objective of this aim is to facilitate the gender equality and
to prevent discrimination for women at the workplace. The Supreme Court in absence
of any enacted law was called upon to provide for effective enforcement of basic
human rights of gender equality and guarantee against sexual harassment.
Supreme Court made the definition of sexually determined behavior in a wider sense
by including any kind of acts which include physical contact, demand for sexual
favors, sexually remarks, showing pornography, verbal or non verbal conduct of a
sexual nature with women.The Supreme Court stated that the guidelines for the sexual
code at every workplace are to be treated as a declaration of law in accordance with
Article 14113 of the constitution. And these rights should not be based on prejudices
any right available under the protection of Human Right Act 1993. The guidelines and
norms specified by the Supreme Court include the duty of employer in work place and
other institutions, preventive steps to be taken in this regard, criminal proceedings,
disciplinary action, complaints mechanism and complaints committee, to encourage
workers initiative, creating awareness and against third party harassment etc.
CRITICAL ANALYSIS
The Supreme Court referred to the definition of Sexual harassment suggest in Vishaka
vs. State of Rajasthan14. Supreme Court give Sexual Harassment definition 15 shows
11http://www.indiankanoon.org/doc/237570/
12http://www.indiankanoon.org/doc/237570/
13Article 141 of the constitution.(Law declared by Supreme Court to be binding on all courts The law
declared by the Supreme Court shall be binding on all courts within the territory of India)
14 AIR 1997 SCC 3011 at 3014
15www.indianknoon.org/doc/1031794/ para16 point2

20

that sexual harassment of a form of sex discrimination projected through unwelcome

favors and other verbal or physical conduct with sexual overtones, whether directly or
by implication, particularly when submission to or rejection of such a conduct by the
female employee was capable of being used for affecting the employment of the
female employee and unreasonably interfering with her work performance and had the
effect of creating an intimidating or hostile working environment for her. That sexual
harassment of a female at the place of work is incompatible with the dignity and
honors of a female and needs to be eliminated and that there can be no compromise
with such violation admits of no debate.
The supreme court guideline set out that persons in charge of a workplace in the
public or private sector would be responsible for taking the appropriate steps to
prevent sexual harassment by taking the appropriate steps including :The prohibition of sexual harassment should be published in the appropriate ways and
providing the appropriate penalties against the offender, for private employees, the
guidelines should be included in the relevant employment guidelines, where sexual
harassment occurs as a result of an act or omission by any third party or outsider, the
employer and person-in-change will take all steps necessary and reasonable to assist
the affected person in terms of support and preventive action.
Vishaka v. State of Rajasthana case presided over by Justice Bhagwati, Chief
Justice of India, whose quote begins this section. Vishaka involved the alleged rape of
a woman by state employees and the failure of officials to investigate the complaint. A
group of activists brought a public interest litigation action and requested the
Supreme Court to frame guidelines for the prevention of sexual harassment and
violence against women based on CEDAW. Although CEDAW does not have any
specific provision on violence, the UN Committee on the Elimination of
Discrimination Against women had interpreted discrimination as including all forms

21

of violence against women16. Reading CEDAW together with the Committees

recommendation, the court held:
In the absence of domestic law occupying the field to formulate effective measures to
check the evil of sexual harassment of working women at all workplaces, the contents
of international conventions and norms are significant for the purpose of the
interpretation of the guarantee of gender equality, the right to work with human
dignity in articles 14, 15, 19(1) (g) and 21 of the Constitution of India and the
safeguards against sexual harassment implicit therein. Any international convention
not inconsistent with the fundamental rights and in harmony with its spirit must be
read into these provisions to enlarge the meaning and content thereof, to promote the
object of the constitutional guarantee.
This is the most direct impact of CEDAW and evidence that international human
rights discourse and feminist perspectives can play an effective and critical role, not
just in informing reformers, but actually influencing the law. The integration of
international human rights norms into domestic law is an important goal, which
hopefully will slowly be realized.17
The Protection of Women against Sexual Harassment at Work Place Bill, 2010
Finally approved the introduction of the Protection of Women against Sexual
Harassment at Workplace Bill, 2010 in Parliament.The bill seeks to ensure protection
of women against sexual harassment at the workplace, both in public and private
sectors whether organised or unorganized.
The Bill lays down the definition of sexual harassment and seeks to provide a
mechanism for redressing complaints. It provides for the constitution of an Internal
Complaints Committee at the work place and a Local Complaints Committee at the
16UN committee on the Elimination of Discrimination, against Woman, 11th Session, UN Doc
CEDAW/C/1992/L.1/Add.15 (1992), General Recommendation NO 19.
17 The term domestic violence is used in Malaysia and finally violence in Singapore and they are
treated interchangeably in this article.

22

district and block levels. A District Officer (District Collector or Deputy Collector),
shall be responsible for facilitating and monitoring the activities under the Act.
In 1997 as part of the Vishaka judgment, the Supreme Court drew upon the CEDAW
and laid down specific guidelines on the prevention of sexual harassment of women at
the work place. The Vishaka guidelines defined sexual harassment and codified
preventive measures and redressal mechanisms to be undertaken by employers.
A draft Bill was circulated by the Ministry of Women and Child Development for
public feedback in 2007. The current Bill establishes a framework to be followed by
all employers to address the issue of sexual harassment.

Highlights of the Bill

The Bill defines sexual harassment at the work place and creates a mechanism
for redressal of complaints. It also provides safeguards against false or
malicious charges.

Every employer is required to constitute an Internal Complaints Committee at

each office or branch with 10 or more employees. The District Officer is
required to constitute a Local Complaints Committee at each district, and if
required at the block level.

The Complaints Committees have the powers of civil courts for gathering
evidence.

The Complaints Committees are required to provide for conciliation before

initiating an inquiry, if requested by the complainant.

23

Penalties have been prescribed for employers. Non-compliance with the

provisions of the Act shall be punishable with a fine of up to Rs 50,000.
Repeated violations may lead to higher penalties and cancellation of licence or
registration to conduct business.

Key Issues and Analysis

There could be feasibility issues in establishing an Internal Complaints

Committee at every branch or office with 10 or more employees.

The Internal Complaints Committee has been given the powers of a civil
court. However, it does not require members with a legal background nor are
there any provisions for legal training.

The Bill provides for action against the complainant in case of a false or
malicious complaint. This could deter victims from filing complaints.

Two different bodies are called Local Complaints Committee. The Bill does
not clearly demarcate the jurisdiction, composition and functions of these
Committees.

Cases of sexual harassment of domestic workers have been specifically

excluded from the purview of the Bill.

Unlike sexual harassment legislation in many other countries, this Bill does not
provide protection to men.

Sexual Harassment: Case laws in India

Apparel Export Promotion Council v. A.K Chopra18

181997 IVAD Delhi 646, 68 (1997) DLT 303, 1997 (42) DRJ 526

24

Mrs. RupanDeol Bajaj v. Kanwar Pal Singh Gill19

State of Punjab Vs. Gurmit Singh20

State of Maharashtra Vs. Madhukar N. Mardikar21

Railway Board Vs. Chandrima Das22

Mohd.Habib Vs State23

Law
Constitution of Indian

Article 14 (the right to equality).

Article 15 (the right to non discrimination).

Article 19(I) (g) (the right to practice ones profession).

Article 21 (the right to life).

Convention on the Elimination of All Forms of Discrimination against Woman

(CEDAW)

Article 11 ([state] takes all appropriate measures to eliminate discrimination

against woman in the field of employment.

Article 24 ([sate shall] undertake to adopt all necessary measures at the national level
aimed at achieving the full realization
191996 AIR 309, 1995 SCC (6) 194
20(1996) 2 SCC 384
21 (1991) 1 SCC 57
22AIR, 2000 SC 988
231989 Cr.LJ 137 Delhi

25

OUTCOME OF PROJECT
After doing the project we can see that it was essential to have such type of law or
guideline against sexual harrasment and it is really effective nowdays.
CONCLUSION
Sexual harassment at the workplace is a universal problem. Even though the
occurrence of sexual harassment at the workplace is widespread in India and
elsewhere, this is the first time it has been recognised as an infringement of the
fundamental rights of a woman, under Article 19(1)(g) of the Constitution of India to
practice any profession or to carry out any occupation, trade or business.
Of late, the problem of sexual harassment at the workplace has assumed serious
proportions, with a meteoric rise in the number of cases. Surprisingly, however, in
most cases women do not report the matter to the concerned authorities.
In India, Articles 14, 15 and 21 of the Indian Constitution provide safeguards against
all forms of discrimination. In recent times, the Supreme Court has given two
landmark judgments -- Vishakha vs State of Rajasthan, 1997, and Apparel Export
Promotion Council vs A K Chopra, 1999 -- in which it laid down certain guidelines
and measures to ensure the prevention of such incidents. Despite these developments,
the problem of sexual harassment is assuming alarming proportions and there is a
pressing need for domestic laws on the issue.
India is rapidly advancing in its developmental goals and more and more women are
joining the workforce. It is the duty of the state to provide for the wellbeing and
respect of its citizens to prevent frustration, low self-esteem, insecurity and emotional
disturbance, which, in turn, could affect business efficacy, leading to loss of
production and loss of reputation for the organisation or the employer. In fact, the
recognition of the right to protection against sexual harassment is an intrinsic
component of the protection of womens human rights. It is also a step towards

26

providing women independence, equality of opportunity and the right to work with
dignity. Government and employers should ensure that women should be treated
equally and gender discrimination should not take place at the workplace. Effective
implementation of the policies can reduce the manifestation and mutilation of the
sexual harassment to the minimum. One organisation can alter its approach to handle
sexual harassment by viewing other organisations tactic. This will reduce or eliminate
glitches caused by this harmful transgression. Government should understand that
separate laws may not bring about equality in gender relations but a law dealing with
sexual harassment would provide women immense support in their struggle. By
focusing on the implementation of the Vishaka guidelines across sectors, examining
the issue comprehensively through its components of redressal, prevention and
protection, and drawing from experiences and perspectives shared at the Consultation,
the organizers facilitated the process of identifying problems to fill gaps that need to
be addressed by any law combating sexual harassment at the workplace.
In the last 50 years, various international human rights organisations have been
focusing on promoting and protecting women's rights. The United Nations has
acknowledged that womens rights are synonymous with human rights. The same was
reiterated in the Beijing Declaration.
Most international women's human rights movements have raised their voice against
abuse and violence perpetrated against women in general. In 1979, the UN General
Assembly adopted the Convention on the Elimination of all forms of Discrimination
Against Women (CEDAW). Areas where discrimination was found to be rampant
include political rights, marriage, family and employment. The convention emphasised
that discrimination and attacks on a woman's dignity violated the principle of equality
of rights.
A Bill to Prevent Sexual Harassment at the Workplace, 2005, has already been
introduced in the Indian Parliament. Womens groups have begun lobbying with

27

parliamentarians to get it passed as an Act in the winter session of Parliament. For any
sexual harassment law to be successful in India, it is important to be aware of the
difficulties confronting our society and ways to overcome them. We all know that
India is a patriarchal society and most cases of sexual harassment remain unreported.
Women are reluctant to complain and prefer silence due to lack of sensitivity on the
part of Indian society. There is a need to gender-sensitise our society so that the victim
does not feel guilty and is encouraged to report any form of harassment. The victims
privacy must be protected. The police and the judiciary, in particular, also need to be
gender-sensitised. There should be speedy redressal and an increase in the conviction
rate. Women themselves should be made aware of their right to a safe and harassmentfree work environment. The concept and definition of sexual harassment should be
clearly laid down, and the redressal mechanism made known to women in each and
every sector of the economy. Structures and mechanisms should also be created for
women in the unorganised/informal sector to combat SHW. Despite bold judgments
by the Supreme Court, there is no sexual harassment complaints committee at most
workplaces, even in the government sector. The apex court must direct the various
workplaces to form sexual harassment committees within a stipulated time frame.
In any civilised society, it is the fundamental right of people to be able to lead their
lives with dignity, free from mental or physical torture. To ensure this, transgressors
must pay for their unsolicited sexual advances. At the same time organisations such as
Men Against Violence and Abuse, that conduct gender-sensitisation programmes and
self-defence classes to combat sexual harassment at the workplace, must be
encouraged (Sadani, 2003).
To effectively prevent SHW we need both a top-down initiative by the state and
employers and civil society initiatives from citizens' groups, women's organisations
and trade unions.
References (Bibliography)

28

Books

Thinking about Sexual Harassment: A Guide for the Perplexed By Margaret

A. Crouch,Oxford University Press, 2001

Indian Constitutional Law, M.P.Jain, 7th edition, 2015, Lexis Nexis

Publication.

Cases

Tarum Tejpal vs State of Goa

Bhannwari Devi vs Sate of Rajasthan
Medha Kotwal Lele and Others vs.Union of India and Others

Articles

In a Fragile Space: Sexual Harassment and the Construction of Indian

Feminism by MADHAVI SUNDER.

Sexual Harassment of Working Women by Ramni Taneja Advocate, New

Delhi.

Refining the regulation of sexual harassment by Virginia Grainer.

Along the spectrum of women's rights advocacy: a cross-cultural comparison

of sexual harassment law in the United States and India by Louise Feld.

Lawmaking beyond Lawmakers: Understanding the Little Right and the Great
Wrong (Analyzing the Legitimacy of the Nature of Judicial Lawmaking in
India's Constitutional Dynamic) by Shubhankar Dam.

29