CASE LAW ANALYSIS ON

VISHAKA V. STATE OF RAJASTHAN

VISHAKA V. STATE OF RAJASTHAN

Facts
Bhanwari Devi, a Saathin working with the Rajasthan Women's Development Project, showed
incredible bravery by questioning social norms and standing up for women's rights. She gained
sympathy in her area in 1987 by getting involved in a case involving an attempted rape. When
her attempts to stop a family from arranging a child marriage later in 1992 were met with
resistance, she became emboldened. Bhanwari continued to be an activist even after she was
fired and faced rejection.
Because of Bhanwari's efforts, officials stopped a child marriage on May 5, 1992, but it
continued the following day. She was fired and boycotted because the villagers held her
responsible for the police intervention. On September 22, 1992, five men—including several
from the offending family—brutally gang-raped Bhanwari's husband in an attempt to exact
retribution.
Justice was hampered by police unwillingness to submit a report and their delayed medical
evaluation. Bhanwari filed a complaint in spite of these difficulties, but the examiner's report
omitted any reference of rape. Women's rights campaigners were incensed when the accused,
with the help of local political clout, was found not guilty in the Trial Court.
In response, groups like Vishaka launched a Public Interest Litigation (PIL), drawing attention to
the need for protection against sexual harassment in the workplace and infringement of women's
fundamental rights under the Indian Constitution. The PIL sought to uphold Articles 14, 15, 19,
and 21 in order to bring Bhanwari's case to justice and to promote more extensive legal rights for
women in the workforce.

Issue
1.​ Does sexual harassment in the workplace constitute a breach of the rights to life, liberty,
and gender equality?
2.​ Could the court employ international law in the event that the current framework did not
provide any suitable measures?
3.​ Does the employer have any accountability when one of its workers engages in sexual
harassment?

Law
The laws concerned were primarily the Fundamental Rights enshrined in the Indian Constitution
- Articles 14,15,19 and 21, which guarantee equality before the law, prohibit discrimination on
various grounds including sex, and ensure the right to life and personal liberty.
The court also interpreted constitutional rights and obligations in light of international treaties
and standards, such as the Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW).
The case demonstrated the necessity of specialised laws to fully handle the problem of sexual
harassment. The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and
Redressal) Act, 2013, which established a legislative framework for stopping and dealing with
sexual harassment at work, was passed by the Indian Parliament in response to the ruling.

Analysis
In her writ petition, Vishaka argued that, in the lack of sufficient legislation, sexual harassment at
work is a widespread occurrence and that employers frequently get away with it. These actions
infringe upon the fundamental rights guaranteed to women by Articles 14, 15, 19(1)(g), and 21
of the Constitution.
The Supreme Court of India addresses the issue of sexual harassment in the workplace,
recognizing the absence of specific legislation to protect women from such harassment. The
court invoked several provisions of the Indian Constitution to provide a legal framework for
addressing this social evil.
1
Article 32 of the Constitution grants the Supreme Court the power to enforce fundamental
rights, including the right to gender equality and the right to work with dignity. However, the
court also highlighted other constitutional provisions relevant to this issue, such as Article 15,
which prohibits discrimination based on gender, among other grounds. Additionally, Article 42
mandates the state to ensure just and humane conditions of work and provide maternity relief.
Article 51A outlines fundamental duties of citizens, including promoting harmony and
renouncing practices derogatory to the dignity of women. Furthermore, Article 51 emphasizes
fostering respect for international law and treaty obligations, indicating the significance of
international conventions in interpreting and implementing domestic laws.
Article 253 empowers Parliament to enact laws for implementing international agreements, while
Entry 14 of the Union List in the Seventh Schedule authorizes the central government to enter
into treaties and agreements with foreign countries. These provisions underscore the importance
of international conventions and norms in shaping domestic legislation and judicial
interpretation.
The court emphasized that in the absence of domestic legislation, international conventions and
norms play a crucial role in addressing sexual harassment in the workplace. These conventions
align with the constitutional guarantee of gender equality and the right to work with dignity.
The Supreme Court's intervention was guided by the principles of the Beijing Statement of
Principles of the Independence of the Judiciary, emphasizing the judiciary's role in ensuring the
observance of human rights and promoting gender equality.
Drawing from international conventions and norms, including the Convention on the Elimination
of All Forms of Discrimination Against Women (CEDAW), the court laid down guidelines to
prevent and address sexual harassment at all workplaces. These guidelines were considered
binding until legislation was enacted to address the issue comprehensively.

1
Goel, A., 2021. Vishaka and Others vs the State of Rajasthan: The Importance of Due Process and Its
Effectiveness in Addressing Sexual Harassment. Available at SSRN 3859309.
2
The Hon’ble Supreme Court outlined the rules to forestall sexual harassment at the Workplace,
known as ‘Vishaka Guidelines’3, that should have been treated as law under Article 141 of the
Indian Constitution to allow time-bound treatment of complaints. These rules provided the
foundation for The Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013. The guidelines laid down were as follows :
1.​ Employers should take preventive measures like an express preclusion of harassment and
provide healthy work conditions in matters of hygiene, comfort and health.
2.​ If there is an event of the infringement of administration rules in the workplace, suitable
disciplinary action should be taken.
3.​ If the offences submitted fall under the domain of the Indian Penal Code, 1860, the
employer must report them to the authorities.
4.​ An organisation should have a redressal committee to address harassment. This should be
independent of the way that the demonstration establishes an offence under the Indian
Penal Code, 1860, or some other law. Such a committee must have women as more than
half of its members, and its head must also be a woman, including a counselling facility.
A report must also be sent to the government annually on the development of the
committee.
5.​ The business should take proper measures to spread awareness on the said issue.

Conclusion
The Hon'ble Supreme Court of India upheld equality and liberty as fundamental constitutional
elements in the Vishaka Judgement. The enactment of laws prohibiting sexual harassment has
motivated some women to speak out against the quiet agony they endured until 1997. The Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was
established on the basis of the Vishaka Guidelines4. The Vishaka Judgement embodies the true
spirit of judicial activism and has served as a model for other countries. Even after two decades,
Bhanwari Devi, the spark that sparked the demand for suitable laws to protect women against

2
Shinde, S., 2023. Case Analysis: Vishaka & Others vs State of Rajasthan. Issue 1 Indian JL & Legal
Rsch., 5, p.1.
3
Vishaka & Ors. v. State of Rajasthan (1997), Legal Bites,
https://www.legalbites.in/vishaka-ors-v-state-of-rajasthan-1997/?infinitescroll=1
4
Devarsha, D., 2014. Implementation of Vishaka Guidelines: Post Vishaka Judgement. Indian JL & Pub.
Pol'y, 1, p.104.
sexual harassment, is still waiting for justice to be served. It is crucial to remember that India
continues to be the country where women are most at risk, despite the fact that extensive
legislation has been passed to protect women there.

HOHFELD ANALYSIS
Hohfeld's analysis of legal relationships deconstructs legal concepts into pairs of jural opposites.
These opposites include rights and duties, privileges and no-rights, power and disability, and
immunity and liability.5 Rights signify entitlements to act or demand actions from others, while
duties are corresponding obligations to fulfill those entitlements. Privileges denote permissions
granted by law, while no-rights indicate the absence of such permissions. Power refers to the
ability to alter legal relations, while disability implies a lack of power or a limitation on
exercising rights. Finally, immunity shields individuals from certain legal consequences, while
liability holds them accountable for their actions. Hohfeld's framework facilitates a nuanced
understanding of legal relationships, clarifying the rights and obligations of parties involved in
legal disputes and providing a structured approach to legal analysis and argumentation.
Applying Hohfeld's framework to Vishaka v State of Rajasthan:
Rights and Duties : The petitioner (Vishaka) asserted their right to freedom of speech and
expression (Article 19(1)(a) of the Constitution) against the duty of the State of Rajasthan to
respect and uphold these fundamental rights.

Privileges and No-Rights : The State claimed the privilege to impose restrictions on the
circulation of publications like Vishaka's due to purported concerns about public order.
Conversely, Vishaka argued against any valid legal grounds (no-rights) for the State to curtail
their constitutional rights.

Power and Disability : The State exercised its power through legislation like the Madras
Maintenance of Public Order Act, which granted it the authority to restrict certain rights.
However, Vishaka contested any legal disability imposed upon them by the State's actions,
asserting their entitlement to exercise their rights without unwarranted interference.

5
Stone, R.L., 1963. An analysis of Hohfeld. Minn. L. Rev., 48, p.313.
Immunity and Liability : The State may have claimed immunity from legal challenge regarding
its actions, citing the necessity of safeguarding public order and safety. Conversely, if the Court
deemed the State's actions unlawful, it could face liability for violating Vishaka's constitutional
rights.

Through Hohfeld's analysis, we discern the intricate legal interplay between the parties involved
in Vishaka v State of Rajasthan, providing a structured framework for understanding their
respective rights, duties, privileges, disabilities, immunities, and liabilities.

ROMESH THAPAR V. STATE OF MADRAS

Facts
Mr. Romesh Thapar, a prominent communist and editor of the weekly English magazine
Crossroads, voiced skepticism towards Prime Minister Pt. Jawaharlal Nehru's policies,
particularly his foreign policy, through published articles. Concurrently, a communist movement
gained traction in parts of Madras, prompting authorities to view Thapar's writings as potentially
detrimental to suppressing the movement's momentum.
In March 1950, the Government of Madras issued an order imposing a ban on the entry and
circulation of Crossroads in these communist-affiliated areas. The order invoked Section 9(1-A)
of the Madras Maintenance of Public Order Act, 1949, granting the government authority to
prohibit the circulation, sale, or distribution of publications in specific regions to uphold 'public
safety' or maintain 'public order.'
Displeased with the ban, Mr. Thapar contested it in the Supreme Court, arguing that the order
encroached upon his fundamental right to free speech and expression. His contention centered on
the belief that the government's action stifled dissent and impeded the dissemination of critical
viewpoints, thereby infringing upon the core principles of democratic discourse and individual
liberties6.
Thapar's case raised significant constitutional questions regarding the balance between the state's
power to regulate speech in the interest of public safety and the fundamental rights guaranteed
under the Indian Constitution. The outcome of this legal challenge had broader implications for
the scope of free speech protections in India, particularly in relation to government restrictions
aimed at maintaining public order.
In essence, Thapar's legal battle symbolized a clash between state authority and individual
freedoms, underscoring the tension inherent in democratic societies between the imperative of
maintaining order and the imperative of safeguarding civil liberties, particularly the right to free
expression.

Issues
1.​ Does the order issued by the Madras Government infringe upon the petitioner’s
fundamental right of freedom of speech and expression?
2.​ Is Section 9(1-A) of the challenged Act (Madras Maintenance of Public Order Act) valid
under Section 13(1) of the Constitution, considering its potential inconsistency with the
petitioner’s fundamental right to freedom of speech and expression?
3.​ Can the petitioner directly approach the Supreme Court of India under Article 32 of the
Constitution for relief, or is it necessary to first approach the High Court of the respective
State under Article 226?

Law
In the case of Romesh Thapar v. State of Madras, the law primarily relied upon was the
Constitution of India, particularly the provisions relating to fundamental rights. The specific
provisions invoked were:

6
Singh, Rupesh Kumar. "Freedom of Speech and Expression and Reasonable Restrictions: An Analysis."
Indian JL & Legal Rsch. 2 (2021): 1.
 1.​ Article 19(1)(a) that guarantees the freedom of speech and expression to all citizens of
India. It states that all citizens shall have the right to freedom of speech and expression,
subject to certain reasonable restrictions.
2.​ Article 19(2) that allows the state to impose reasonable restrictions on this right in the
interest of various specified grounds, including public order.
3.​ Article 32 which confers the power of the Supreme Court to enforce fundamental rights.
It allows individuals to directly approach the Supreme Court for the enforcement of their
fundamental rights guaranteed under Part III of the Constitution.

Analysis
In Romesh Thappar v State of Madras, the central issue was whether the petitioner could directly
approach the Supreme Court of India under Article 32 of the Constitution, bypassing the option
of seeking relief from the respective High Court under Article 226. The Court determined that
Article 32 provides a guaranteed remedy for the enforcement of fundamental rights, elevating it
to the status of a fundamental right itself. Consequently, the petitioner had the choice to approach
either the High Court under Article 226 of the Supreme Court under Article 32.
7
The Court emphasized the similarity in nature between the two remedies and asserted that there
was no hierarchical order to be followed in the enforcement of fundamental rights. It concluded
that, in matters concerning fundamental rights, individuals had the right to directly approach the
Supreme Court, without the obligation of first seeking relief from the High Court. This ruling
established the accessibility and significance of Article 32 as a vital mechanism for the
protection and enforcement of fundamental rights in India.
In Romesh Thappar v State of Madras, the Court addressed whether the Government of Madras'
order, issued under Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949,
infringed upon the petitioner's fundamental right to freedom of speech and expression under
Article 19(1)(a) of the Constitution, or if it fell within the permissible restrictions outlined in
Article 19(2).
The Court ruled that actions contributing to public health protection could constitute maintaining
public safety, but this interpretation depended on the context. While "ensuring public safety"

7
Pushkar, A., 2021. Examining the Constitutional Validity of The Unlawful Activities (Prevention)
Amendment Act, 2019. Available at SSRN 3974648.
might not encompass safeguarding public health under a law-and-order statute, it could include
protecting the public from offenses like reckless driving. The Court suggested punitive measures
should be reserved for situations threatening the security of the State rather than minor offenses.
Furthermore, the Court emphasized that unless a statute explicitly limits the application of a
provision, its scope cannot be restricted to aggravated harmful activities threatening the State's
security. It highlighted the potential misuse of powers by authorities and the severe consequences
of disruptions to public peace, compromising the State's security. This decision underscored the
need for balanced interpretation and careful application of laws to safeguard fundamental rights
while maintaining public order.
In Romesh Thappar v State of Madras, the Court assessed the validity of Section 9(1-A) of the
Madras Maintenance of Public Order Act, 1949, under Article 13(1) of the Constitution, which
prohibits laws inconsistent with fundamental rights.8 The crux of the issue was whether this
section infringed upon the petitioner's right to freedom of speech and expression.
The Court ruled that legislative restrictions on freedom of speech and expression must
differentiate between offenses against public order and actions aiming to overthrow the State. It
emphasized the need to draw a clear line between minor breaches of peace and disturbances
posing a threat to national security.
Furthermore, the Court highlighted the removal of "sedition" from the draft Article 13, indicating
that criticizing the government does not warrant restrictions on freedom of speech unless it
directly threatens state security. Consequently, Section 9(1-A), which allowed constraints on
freedom of speech and expression for preserving public safety or order, exceeded permissible
limits outlined in Article 19(2), rendering it unconstitutional and void. This decision underscored
the importance of upholding freedom of speech while maintaining public order, as mandated by
the Constitution9.

Conclusion
The judgment in Romesh Thappar v State of Madras, although delivered in India's nascent
post-constitutional era, established a crucial precedent by safeguarding press freedom and

8
Dixita, 2018. Political Intervention in the Judicial System. Supremo Amicus, 6, p.66.
9
Srivastava, Ritika. "The Freedom of Speech and Privacy in the Press and Media: When Should the
Journalist's Right to Freedom of Expression Be Restricted?." Jus Corpus LJ 1 (2020): 240.
APA
delineating reasonable restrictions on fundamental rights. By limiting state interference with
individual rights, the Court bolstered confidence in the judiciary's integrity, setting the stage for
subsequent rulings that championed individual liberties against state authority. This bolstered
public trust in the judiciary's commitment to upholding constitutional principles.

HOHFELD ANALYSIS
Hohfeld's analysis breaks down legal relationships into pairs of jural opposites: rights and duties,
privileges and no-rights, power and disability, and immunity and liability.10 This framework
clarifies the complex interplay of legal concepts, facilitating a nuanced understanding of rights,
obligations, permissions, limitations, and accountability within legal disputes.
In Romesh Thappar v State of Madras, Hohfeld's analysis can elucidate the interplay between
various legal elements:

Rights and Duties : Romesh Thappar, as the petitioner, asserted his right to freedom of speech
and expression under Article 19(1)(a) of the Constitution. Conversely, the State of Madras,
represented by its government, had a duty to uphold constitutional rights while also maintaining
public order.

Privileges and No-Rights : The State of Madras claimed the privilege to impose restrictions on
Thappar's publication, purportedly to preserve public order under Section 9(1-A) of the Madras
Maintenance of Public Order Act, 1949. Thappar argued that there were no valid legal grounds
(no-rights) for the state to curtail his constitutional rights.

Power and Disability : The State of Madras wielded the power to enact and enforce laws,
granting it the authority to impose restrictions on Thappar's rights in the interest of public order.
Conversely, Thappar aimed to demonstrate that the state's actions represented a disability or
limitation on his power to exercise his rights without unwarranted interference.

Immunity and Liability : The State of Madras may have asserted immunity from legal
challenge regarding its actions, citing its authority to maintain public order. However, if the

10
Id at 5
Court deemed the state's actions unlawful, it could face liability for violating Thappar's
constitutional rights, highlighting the potential consequences of state action within Hohfeld's
framework.

Overall, Hohfeld's analysis helps illustrate the complex legal relationships involved in Romesh
Thappar v State of Madras, clarifying the rights, duties, privileges, and liabilities of the parties
involved.