Authored By: Harsh Gaur
Guru Govind Singh Indraprastha University
Case Citation and Basic Information
Case Name: Vishaka and Others v. State of Rajasthan and Others
Citation: AIR 1997 SC 3011; (1997) 6 SCC 241
Court: Supreme Court of India
Bench: J.S. Verma, C.J., Sujata V. Manohar, J., and B.N. Kirpal, J.
Date of Judgment: 13 August 1997
Introduction
The case of Vishaka v. State of Rajasthan is one of the leading judgments of the Supreme Court of India. This judgment declared sexual harassment at the workplace, in the absence of a legal framework then available in the country, a violation of the constitutional guarantees under Articles 14 and 21 of the Constitution of India (i.e. Right to equality and right to a dignified life). For the first time in the history of Indian jurisprudence, an executive guideline is laid down by the highest Court in exercise of its powers under Article 32. The said executive guideline, known as the “Vishaka Guidelines” relies heavily on India’s obligations under various international conventions and thereby fills the void in domestic legislation.
Facts of the Case
The case was a consequence of the infamous gang rape of Bhanwari Devi (sathin – social worker working in a programme of rural development in Rajasthan). She tried to stop the marriage of a child while performing her official duty as an employee. Consequently, the village people including her husband were involved in ganging rape her in 1992 in protest against his step for prevention of such a marriage.
The matter resulted in an acquittal of the case by the trial court. It then caused a nation-wide furore for want of any machinery against prevention of sexual harassment to an employee in performing his/ her work. As such, the other women organisations/ social workers headed by one Vishaka filed a writ petition in Supreme court of India as a Public Interest Litigation (PIL) u/a 32 of the Constitution seeking guidance on the prevention and sexual harassment to woman employees and a direction from court for issuing guidelines pending appropriate legislation to enforce the right of every woman and right to work with dignity and equal opportunity to work on equal pay. The petitioner argued that while there was no proper legislation for the redressal of the complaint pertaining to any Sexual Harassment at workplace or of any such nature by an employer at workplace; yet same could be provided by the court by judicial guidelines till proper legislation is enacted.
Legal Issues
Issue 1: Whether sexual harassment of women at the workplace is an infringement of the constitutional provisions guaranteeing fundamental rights under Articles 14,15,19(1)(g) and 21 of the Constitution of India?
Issue 2: Whether, the Supreme Court can provide a code of conduct on prevention and redressal of sexual harassment in the absence of enacting a legislation in relation to the above said subject?
Issue 3: Whether, International covenants and norms which have been duly ratified and signed by India can be given effect to by the Indian courts and can be used to interpret and add substance to the Fundamental rights guaranteed under the Constitution, if there is no inconsistent Indian law?
Argument Presented
Petitioners’ Arguments
The petitioners claimed that sexual harassment at the workplace violated a working woman’s constitutional rights under Articles 14 (equality before the law), 15 (prohibition of discrimination on the ground of sex), 19(1)(g) (right to practise any profession or carry on any occupation), and 21 (right to life and personal liberty, construed to include right to human dignity and right to safe working place). It was asserted that the current criminal law including the provisions of IPC in regard to offences relating to outraging of modesty, etc. Were insufficient, as they covered only specific forms of physical harassment and did not contain civil or preventive mechanisms which were required in respect of working women and workplace harassment. The arguments on international conventions particularly to CEDAW and other international instruments were heavily relied upon as, in absence of any law against sexual harassment at the workplace, it was claimed that the provisions therein must be read into the promise of equality under the constitution, based on Articles 51(c) and 253 for purpose of Parliamentary law and due International Law compliance.
Respondents’ Arguments
The State of Rajasthan and the Union of India, while not challenging the object to protect working women, wondered if it was appropriate for the judiciary to provide detailed instructions to employer, without any law to guide them on how they must regulate the working conditions under the doctrine of separation of powers. The Court was informed that a Code of conduct in relation to a workplace was well within the powers of Parliament to enact, that the scope of powers of the Court under Art 32 was merely to enforce the pre-existing fundamental rights and not to add to them the kind of substantive obligations, such as can form the subject of a piece of legislation. However, the Union of India broadly accepted the need for such protective regime and aided the Court in formulating some practical code to regulate the employer, especially, since no law existed in that regard.
Courts’ Reasoning and Analysis
The Court through Chief Justice J.S. Verma initially ruled that the fundamental rights provided under Art.14, 19 & 21 of the Constitution shall include the right to be free from sexual harassment at the workplace, as sexual harassment affects the dignity of the victim and by rendering the work place not conducive, infracts upon the fundamental right to practice any profession/occupation under Art.19(1)(g). The reasoning behind this was that a right at workplace with human dignity was implicit in the constitutional scheme and due to lack of safety, this right for the women folk became illusory.
In absence of domestic legislation, the Court utilized Art. 32 not just as a tool to alleviate individual grievances, but also as a source for issuing necessary guidelines to enforce the fundamental rights in absence of any statutory or legislated provision in the nature of law. Placing reliance on Art.51(c), which mandates for promotion of respect for international law and treaty obligations, and Art.253 enabling Parliament to pass law in compliance of international agreements, Court held that international conventions complying with fundamental rights and not repugnant to existing law, could beread into the ambit of the above mentioned rights to extent and further it scope and in this regard expressly took note of CEDAW and its General Recommendations of the CEDAW committee, and Beijing Statement of principles in so far as judicial independence was concerned.
The bench relied on its jurisprudence about the authority of the judiciary to frame binding guidelines and effective remedies where such relief could not be granted in absence of legislation/executive policy, in earlier public interest litigations (PILs) in the field of environmental law, custodial rights etc. Applying this philosophy in hand, the court found a “huge gap” to provide for adequate preventive and redressal mechanisms for incidents of workplace sexual harassment in law, and in order to enforce fundamental rights the guidelines framed by it would have to fill in this “gap”, and will be binding on employers, be they public or private sector undertakings, by virtue of Art. 141 until appropriate legislation is made.
The judges concurred unanimously. There were no dissenting or separate concurring opinions. The judgment was a singular pronouncement of the Court as there was unanimity in thought.
Judgement and Ratio Decidendi
The Decision
The Supreme Court allowed the petition and gave what we call now the Vishaka Guidelines, and these guidelines are deemed as the law declared under Art 141 of the Constitution which is binding for all. Even for the private sector until laws were framed. These guidelines stated some of the things that will be looked upon as sex harassment – including, all forms of unwelcome sexual behaviour either explicitly or by implication, Employer have the obligation to prevent sexual harassment and frame procedures to redress it and in every office, A Committee of sexual harassment shall be formed that would include a woman as the head, not less than ½ women members, should also contain a nominee of an outside, either governmental/non-governmental Organisation for not to being under influence or intimidation; that complaint mechanism shall ensure timely resolution of complaint and should be treated confidential. Employers were also instructed that; work environment should provide adequate health/ hygiene and recreation facilities so that work environments don’t turn towards anti female-ity or the opposite sex. And work places should prominently circulate these guidelines so that male and female Employees are conscious of respective rights.
Ratio Decidendi
The ratio decidendi of Vishaka is that sexual harassment of women at the workplace is a violation of the fundamental rights to equality, non-discrimination and a dignified life and livelihood under Articles 14, 15, 19(1)(g), and 21 of the Constitution and in the absence of domestic legislation, the judiciary may under Article 32 formulate binding guidelines drawing upon international conventions consistent with these rights, to be enforced as law until Parliament legislates on the subject.
Critical Analysis
Significance of the Decision
Vishaka is a prime example of the Indian judiciary stepping in to fill a legislative void, not thru recommendations but thru binding guidelines, exercising its remedial powers in a significant way. The judgment was one of the first in India to apply an international human rights convention, CEDAW, directly to the interpretation of domestic fundamental rights, thus bringing Indian constitutional jurisprudence to the international standard on equality between genders, even before Parliament did so.
Implications and Impact
The judgment had an instant and significant practical effect: for over sixteen years, Vishaka Guidelines were the only binding legal framework for workplace sexual harassment in India, mandating both public and private employers to set up internal complaint’s mechanisms. The guidelines were used and improved in later judgments, including in Apparel Export Promotion Council v. A.K. Chopra (1999), and eventually set the direct template for the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, showing the lasting effect of the guidelines on law-making.
Critical Evaluation
The Court’s willingness to set down detailed, code-like guidelines has been praised as a necessary and creative response to legislative inertia, but has also been criticized for pushing the constitutional separation of powers by involving the judiciary in an essentially legislative function. It has also been criticized that the guidelines were framed by the judiciary and had no penal consequences under the statute for non-compliance initially and were heavily dependent on the goodwill of the employers for its effective implementation. The 2013 Act has only partly filled this gap. But considering the complete absence of any other protective mechanism at that time and the constitutional mandate under Article 32 to seek enforcement of fundamental rights, the approach of the Court can be justified as a proportionate and temporary measure, clearly intended to give way to future legislation.
Conclusion
Vishaka v. State of Rajasthan was a landmark judgment that helped protect the rights of working women. The case established that the right to work free from sexual harassment is a fundamental right. The most important aspect of this case was that it showed how the Indian judiciary can enrich its resources by using international human rights laws to add substance to the fundamental rights enshrined in the Constitution. The Vishaka guidelines were in place for more than a decade before they were replaced by the 2013 law. The case is still relevant today as it illustrates how the court used purposive interpretation of the Constitution and made remedial laws despite ongoing debates over the extent to which such measures should be taken.
Reference(S):
Vishaka v. State of Rajasthan, AIR 1997 SC 3011.
Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759.
Constitution of India, 1950, arts. 14, 15, 19(1)(g), 21, 32, 51(c), 141, 253.
Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13.
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, No. 14 of 2013 (India).

