Author: Devyani Vig, New Law College (BVDU), Pune
To the Point
Before 1997, there was no specific law in India to deal with sexual harassment of women at the workplace. Complaints from women who faced such misconduct were often ignored or dismissed and had little legal support. This was changed by the Vishakha case, triggered by the shocking gang rape of Bhanwari Devi, a woman who was targeted while doing her job as a social worker, no effective justice was delivered through criminal prosecution and hence a Public Interest Litigation (PIL) was filed by a women’s organisation before Supreme Court under article 32, seeking redress and protection of women in workplace, which led to the court recognising legal absence in this case and giving the Vishakha guidelines.
Abstract
For a long time, the issue of sexual harassment at the workplace in India was overlooked, lacking both legal recognition and institutional response. The turning point came with the distressing case of Bhanwari Devi, a village-level worker in Rajasthan who was gang-raped while attempting to stop a child marriage. This incident sparked a nationwide debate on the vulnerability of working women and the inadequacy of legal safeguards in place. In response, a group of women’s rights organizations filed a Public Interest Litigation (PIL) before the Supreme Court, urging the judiciary to intervene where the legislature had remained silent. The Supreme Court, in its 1997 verdict in Vishaka and Others v. State of Rajasthan and Others, acknowledged this legislative gap and took the unprecedented step of framing judicial guidelines to prevent sexual harassment at workplaces. These guidelines, which came to be known as the Vishaka Guidelines, drew strength from constitutional protections—particularly Articles 14, 15, 19(1)(g), and 21—and international instruments like the CEDAW. This article examines the origins and content of the Vishaka Guidelines, along with the legal principles on which they were based. It also traces their influence on the development of subsequent legislation, particularly the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Even more than two decades later, the Vishaka judgment holds immense relevance. While it laid the groundwork for institutional reforms and legal protections, the practical implementation of these norms remains inconsistent. Many workplaces, especially in the unorganized sector, still lack functioning complaint mechanisms or gender sensitization programs.
Use of Legal Jargon
Article 32: This article gives right to citizen of India to approach Supreme Court for redressal if the fundamental rights which are provided in Constitution of India to every citizen is violated or not being enforce. In absence of any legal remedy for a particular case the Supreme Court can step in and enforce the fundamental right.
Article 14: This article ensures that each and every citizen of India has equality before the law and equal protection of the laws. In this case the Court ruled that workplace sexual harassment infringes upon a woman’s fundamental right to equality under Article 14, as it creates a discriminatory and hostile environment for women at the workplace, depriving her of equal opportunities. The Vishakha case judgement recognised that sex-based discrimination fundamentally violates constitutional rights, laying down the foundation for stronger safeguards against workplace harassment in India.
Article 15: India is multicultural and hence discrimination based on religion and caste has come a long way. This article of the Indian Constitution expressly bars the State from discriminating against any citizen on grounds of religion, race, caste, sex, or place of birth. This section ensures that each and every citizen of India has equal access to public spaces, employment, and state benefits. However, it allows special provisions for women and children and affirmative action for backward classes, SCs, and STs ensuring fairness by both preventing unfair treatment and supporting disadvantaged communities.
Article 19(1)(g): This article of Indian constitution ensures the citizen of India with right to trade, occupation and business. This means that Indian citizen can carry on any legal business, occupation or trade freely in India. While Article 19(6) permits reasonable restrictions by the State in the interest of public order, health, morality, and professional regulations, thereby maintaining a balance between individual rights and societal welfare.
Article 21: This Article provides that every person enjoys constitutional protection of life and liberty, which can only be restricted via due process of law. Over time, judicial interpretation has expanded this right to include various essential aspects such as the right to live with human dignity, right to livelihood, right to health, right to education, right to clean environment, and protection from torture or inhuman treatment, making it the most comprehensive and dynamic provision safeguarding basic human rights while ensuring that any restriction must satisfy the test of due process and constitutional validity.
Sexual Harassment according to CEDAW (Convention on the Elimination of All Forms of Discrimination against Women): Any unwelcome sexually determined behaviour such as physical contact, demand or request for sexual favours, sexually coloured remarks, etc.
Public Interest Litigation (PIL): Litigation undertaken in public interest to secure broader community rights.
The Proof
This article is based on the Vishakha case, which holds a prominent position for the formulation of legislature for safety of women at the workplace. This case is based on Bhanwari Devi, who was a social worker. She once stopped the practise of child marriage in Rajasthan and due to her intervention she was brutally gang-raped by upper-caste men. Despite the availability of legal remedies, Bhanwari Devi’s case saw no meaningful justice through criminal proceedings. This failure prompted women’s rights organizations, led by Vishaka, to file a Public Interest Litigation (PIL) under Article 32 of the Constitution, demanding systemic safeguards against workplace sexual harassment. Recognizing the legislative vacuum, the Supreme Court exercised its suo motu powers to establish binding guidelines, creating India’s first legal framework against workplace sexual harassment even in the absence of specific statutes.
Case Laws
Apparel Export Promotion Council v. A.K. Chopra (1999) :
In this case a female employee accused her supervisor of persistent sexual harassment, including physical molestation during an official trip. When she resisted, he retaliated by giving her poor work assessments. The employer’s internal inquiry found the charges proved but imposed only minor penalties. The Supreme Court, hearing the appeal, established critical precedents: it expanded the definition of sexual harassment beyond physical contact to include verbal/non-verbal acts creating a hostile work environment. The Court ruled that employers bear absolute responsibility to prevent harassment, and mere transfer of the perpetrator doesn’t discharge this obligation. Importantly, it held that sexual harassment inherently violates Articles 14, 15 and 21, making gender equality at workplaces a constitutional mandate. The judgment strengthened Vishaka’s framework by clarifying that any sex-related behaviour undermining a woman’s dignity constitutes harassment, regardless of whether it involved physical contact.
Medha Kotwal Lele v.Union Of India(2013):
The Supreme Court enforced strict compliance with Vishaka guidelines, mandating all workplaces to form Internal Complaints Committees (ICCs) within fixed timelines. It ruled that harassment complaints must be resolved within 3 months, with non-compliance inviting contempt. The judgment extended protections to students and researchers, strengthening accountability before the POSH Act’s enactment.
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 :
This is a key milestone in India’s legal framework for guaranteeing safe working conditions for women. This legislation, also known as the POSH Act, transformed the Supreme Court’s Vishaka Guidelines into a comprehensive statutory mandate with legally binding elements.
The Act creates a comprehensive protection umbrella for all women employees in the formal and informal sectors, including regular, temporary, contractual, and ad hoc workers, interns, and domestic workers. It defines sexual harassment as not only physical acts, but also verbal and nonverbal behaviour that creates a hostile or frightening work environment, including quid pro quo harassment. This act’s focus on prevention and redressal is a defining feature. Employers are constitutionally required to form Internal Complaints Committees in all companies with ten or more employees, while smaller establishments are covered by district-level Local Committees. These authorities must conduct investigations within stringent ninety-day time frames while maintaining secrecy and giving interim relief measures to complainants. The Act imposes significant compliance obligations on organisations, such as mandated awareness campaigns, public display of anti-harassment policies, and annual reporting. Serious penalties for noncompliance include fines of up to 50,000 rupees for first crimes and harsher consequences for second offences. By establishing this exact implementation framework, the POSH Act executes India’s constitutional commitment to gender equality while also achieving its international duties under CEDAW, resulting in a major shift in workplace safety standards.
Conclusion
The Vishaka decision transformed a terrible tragedy to an essential moment in Indian legal history. It reflects the judiciary’s ability to act while the legislative is mute. The Supreme Court empowered working women nationwide by bringing gender justice and dignity up to the constitutional level and bringing international commitments into line with domestic law. However, the guidelines and subsequent legislation continue to be implemented inconsistently. Awareness, compliance, and social accountability are still required to fully realise Vishaka’s essence.
FAQS
What are the Vishaka Guidelines?
They are a set of binding norms, which include:
Definition of Sexual harassment
Employer’s Responsibility to Prevent It
Establishment of complaint committees
Awareness programs
Protection and confidentiality for complainants
Are the Vishaka Guidelines still valid today?
The Sexual Harassment of Women at Workplace Act, 2013 was legislated by Parliament incorporating the principles established in the Supreme Court’s Vishaka judgment. While the original Vishaka guidelines ceased to have independent legal force after the Act’s enactment, the constitutional principles articulated in the judgment continue to inform judicial interpretation of workplace harassment cases.
Has the implementation been effective?
Not uniformly. Many Internal Complaints Committees (ICCs) are poorly constituted or inactive. Lack of awareness, fear of stigma, and non-compliance by employers continue to undermine its effectiveness.
What are some criticisms of the Vishaka judgment?
Critics argue the Vishaka judgment overstepped judicial boundaries by legislating workplace policies rather than interpreting laws. They highlight its lack of enforcement mechanisms and accountability structures for proper implementation. Additionally, the guidelines failed to adequately protect women in India’s vast informal sector where most harassment occurs.
Can men file cases under the Vishaka Guidelines or 2013 Act?
Men are not covered under the current statutory scheme, which has been criticized for being gender-exclusive.
What are the employer’s responsibilities?
The POSH Act mandates employers to establish Internal Complaints Committees (ICCs), conduct regular awareness programs, maintain safe work environments, and impose strict disciplinary actions against offenders.
Sources
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