Behind India’s Law on Sexual Harrassment: Vishaka v. State of Rajasthan
Author: Adv. Siddhi Gokuldas Naik
Designation: Student, First Year LLM, V.M.Salgaocar College of Law, Goa
Email ID: firstname.lastname@example.org
“Each time a woman stands up for herself, without knowing and claiming it, she stands up for all women!”
-Maya Angelou 
It is really distressing to know that women/girls who were once upon a time adored as an epitome of Shakti (Power) are facing innumerable evils in the society today. Each day we read or hear about so many girls being raped, sexually abused and murdered. A 2019 Report stated that India witnessed 32,033 rape cases in the past year with approximately 88 cases on a daily basis.
With an enhancement in the country, millions of women are stepping into the nation’s work domain. However, many of them are subjected to sexual harassments at workplace. The birth of the law on the same can be traced back to 1992, when a woman was ruthlessly gang raped. Let’s delve into the past records to study the case.
This landmark judgment was the end product of a PIL filed by a Women’s Rights group, “VISHAKA” on account of the ferocious gang rape of Smt. Banwari Devi, a social worker (Saathin-a friend) from Bhateri village, who was appointed by the Rajasthan Government under the Women Development Project. As a part her job, Banwari was very determined to prevent the happening of child marriages in her village. In May, 1992 she reported the Gujjar family to the Sub Divisional Officer and the Deputy Superintendent of Police for arranging the marriage of a one year old toddler. However her attempt was unsuccessful and the marriage was accomplished with no actions taken. In turn she lost her job and was boycotted. Burning with revenge, four men from the Gujjar family along with another man from the village attacked her husband and raped her mercilessly on 22nd September, 1992.
In her fight for justice she faced vast criticisms and rejections by the police and other authorities. Her medical examination was hampered for 52 hours and the happening of the crime was not revealed in the report. Due to this, all the accused were acquitted by the Trial Court. When an appeal was made in the High Court, the court held that the gang rape occurred only out of a revengeful situation.
These statements of the Courts led to a disgust among women and finally a PIL pertaining to protection of fundamental rights of working women was filed by Vishaka along with four other women organisations in the Supreme Court of India.
The historic decision was pronounced by C.J. J.S.Verma, representing J.Sujata and J.Kripal. The court relied upon The Convention on the Elimination of All Forms of Discrimination against Women, 1979. It was held that women have the fundamental right to a safe working environment free from sexual harassment  and also a right to a dignified life. Such dreadful incidents destroy gender equality. The definition of sexually determined behaviour was elaborated to include demands of all sorts of physical and sexual favours from women.
The Supreme Court laid down a binding set of guidelines in accordance to the Constitution, based on the Protection of Human Rights Act, 1993, to be followed by all the employers until an appropriate law was framed. The main aim was to preserve and enforce the right to gender equality and avoid discrimination against working women. Certain significant guidelines were:
1. Duty of employer to ensure women employee’s safety.
2. Victims to be given immediate remedies.
3. Strict action to be taken against the accused by the complaints committee.
4. Employees shall have the right to raise their voice against such crimes.
5. Governing bodies to come up with effective laws on the concerned area.
The Apex Court, no doubt has done a commendable job by setting up a precedent for the coming future. However the judgment still fails certain remarkable aspects.
1. The guidelines were laid down in 1994 and The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act was passed in 2013. So the question was what would happen to the cases that were reported during this period of sixteen years. There was no provision for any statutory remedy.
2. The guidelines have proved to be very vague. There is no clarity on the constitution of a proper administrative channel for registering the complaints.
3. There is focus laid on cases within the workplace. There can be a possibility that harassment can happen outside the workplace too.
4. These guidelines were out of the reach of many employers and women employees.
Therefore this judgment could not alone address the menace of sexual harassment as it failed miserably in its execution. There was a strong need for an ancillary interference for awareness and participation through policies, programmes and legislations.
Sexual harassment is a long existing disease in the society. It has to be uprooted completely. Of course it can’t be done in one shot, however I strongly believe that strong implementation of stringent laws is of utmost importance. There are so many cases reported everyday but still the conviction rate is very low. Many women are forced to silence their voice. There is a need for large scale awareness programs like seminars, panel discussions, debates, conferences and movies to educate people on the topic. It’s high time we realise that, a woman’s dignity is her jewel and is a part of her non-perishable and immortal self , so it cannot be simply traded off!”
Pinterest, (Nov.21, 2020, 9:50 PM),https://www.pinterest.com/pin/119063983871801887/. National Crime Records Bureau Report, 2019, (Nov.28, 2020, 1:30 PM), https://ncrb.gov.in/en/crime-india-2019- 0. The Convention on the Elimination of All Forms of Discrimination Against Women, 1979.arts.11(1)(a f), 24. INDIA CONST.arts.14,15,19(1)(g),21. Maneka Gandhi v.Union of India,(1978) A.I.R.597,(1978)S.C.R(2) 621(India). P.Ishwara Bhat, Law and Social Transformation 599 (Eastern Book Company 2012). INDIA CONST.art.141. The Protection of Human Rights Act, 1993, sec2(d). State of Madhya Pradesh v. Madanlal, (2015)7 S.C.C.681 (India).