JUDICIAL VIGILANCE AGAINST GENDER VIOLENCE: REVISITING VISHAKA & ORS. VS. STATE OF RAJASTHAN & ORS. (1997) SC 3011

INTRODUCTION

The Supreme Court of India rendered a landmark decision in Vishaka & Ors. v. State of Rajasthan,  which addresses issues of sexual harassment of women in the workplace.¹. The renowned Vishaka  guidelines were created by the Supreme Court and apply to both the public and private sectors.  This landmark judgment was delivered by the Supreme Court of India, by a three-judge Division  Bench comprising Chief Justice J.S. Verma, Justice Sujata V. Manohar, and Justice B.N. Kirpal.

The verdict was delivered on 13 August 1997².

PARTIES INVOLVED

The petitioners were various women’s rights groups and NGOs, including Vishaka, who filed the  petition as a public interest litigation (PIL).

The respondents included the State of Rajasthan and the Union of India.

FACTS OF THE CASE

• In 1985, Bhanwari Devi, a woman from Bhateri, Rajasthan, began working for the Government of Rajasthan’s Women’s Development Project (WDP).
• As part of her work in 1992, Bhanwari took up a cause centred on the government’s effort to prevent child marriage. Unaware of the situation, the villagers encouraged child marriages even though they knew they were forbidden.
• Meanwhile, Ram Karan Gurjar’s family decided to marry his baby daughter in this way. Bhanwari made an effort to persuade the family not to perform the marriage. But her efforts resulted in vainness. The marriage was approved by the family.
• When Bhanwari Devi prevented a child marriage.³ On May 5, 1992, the villagers blamed her, boycotted her, and she was fired. In retaliation, five men gang-raped her on September 22, 1992.
• There was no reference to rape in the report, and police postponed her medical examination by fifty-two hours.
• She had to spend the night in a bloodstained dhoti after being made to leave her lehenga as evidence and being taunted at the police station.
• Due to political influence and a lack of evidence, all of the accused were found not guilty. • Women’s organisations demonstrated, and a Vishaka NGO filed a Public Interest Litigation (PIL) to protect women from sexual harassment at work under Articles 14, 15, 19, and 21.

ISSUES RAISED

1. Whether dealing with instances of sexual harassment at work require formal guidelines? 2. Whether sexual harassment at work constitutes a violation of a woman’s fundamental rights?
2. Whether the employer be held accountable in cases where an employee engages in sexual harassment?

CONTENTIONS BY THE PETITIONER

1. Lack of Law –

The petitioner contended that many women lacked protection because there was no  appropriate legislation to address sexual harassment in the workplace.

2. Violation of Fundamental Rights –

Sexual harassment was said to violate women’s rights under:

1. Article 14 – Right to Equality The petitioners contended that Article 14 was violated as the State failed to ensure equality before the law and equal protection by not safeguarding women from sexual harassment at the workplace.
2. Article 15 – No Discrimination

The petitioners argued that Article 15 was violated as women faced discrimination  solely based on sex, due to the absence of safeguards against workplace sexual  harassment.

1. Article 19(1)(g) – Right to Practice Any Profession The petitioners contended that Article 19(1)(g) was violated as sexual harassment created an unsafe environment, restricting women’s right to practise any profession or occupation freely.
2. Article 21 – Right to Life and Dignity

The petitioners argued that Article 21 was violated as sexual harassment infringed  upon a woman’s right to life with dignity and personal security at the workplace.

3. Employers Escaping Responsibility –

It was said that because there was no clear legal framework, employers were frequently  held accountable for harassment, but were not held accountable.

4. Request for Guidelines –

Until a suitable law was created, the petitioner asked the court to issue guidelines for  preventing and dealing with sexual harassment in the workplace.

CONTENTIONS BY THE RESPONDENTS 

1. Support to Petitioners –

The Solicitor General, representing the respondents, agreed with the concerns raised by the  petitioners.

2. Assistance to the Court –

Instead of opposing the petition, the respondents helped the Court in finding a proper way  to address sexual harassment at the workplace.

3. Need for Guidelines –

They supported the idea of creating clear guidelines to prevent such harassment in the  absence of a specific law.

4. Legal Assistance –

Senior advocate Fali S. Nariman and legal experts Ms. Naina Kapur and Ms. Meenakshi  also assisted the Court with valuable suggestions.

JUDGMENT 

The Supreme Court, in a historic and progressive judgment, firmly held that sexual harassment at  the workplace violates a woman’s fundamental rights under Articles 14 (equality before law), 15  (prohibition of discrimination), 19(1)(g) (freedom to practice any profession), and 21 (right to life  and dignity) of the Constitution of India. Recognising the pervasive nature of workplace  harassment and the serious legal vacuum in addressing it, the Court emphasised that it had a  constitutional obligation under Article 32 to protect and enforce these rights, especially when the  legislature had failed to act.

The Court provided a broad definition of sexual harassment, identifying it as any unwelcome  sexually determined behaviour, whether physical, verbal, or non-verbal, including physical contact  and advances, demands or requests for sexual favours, sexually coloured remarks, showing  pornography, or any other conduct that creates a hostile or unsafe environment for women⁴.  Importantly, it clarified that sexual harassment need not always involve physical touch; even lewd jokes, suggestive comments, and workplace rumours can amount to harassment if they undermine  a woman’s sense of safety and dignity.

Acknowledging that existing legal provisions such as Sections 354 and 354A of the IPC were too  general and inadequate to deal specifically with workplace-related harassment, the Court stressed  the urgent need for a dedicated legal framework. It highlighted that such harassment is inherently  discriminatory, especially when a woman feels that resisting or reporting such behaviour would  jeopardise her employment prospects, promotions, or create a hostile atmosphere, thereby  infringing on her right to work with dignity.

To strengthen its reasoning, the Court also invoked international legal obligations, especially  Articles 11 and 24 of the Convention on the Elimination of All Forms of Discrimination Against  Women (CEDAW), reinforcing the idea that gender equality includes the right to protection from  sexual harassment and the assurance of a safe working environment as a basic human right.

In the absence of statutory law, the Court exercised its power under Article 141 and laid down the  Vishaka Guidelines, which were to be treated as binding law until appropriate legislation was  enacted. These guidelines mandated the creation of complaints committees, preventive steps by  employers, and a time-bound redressal process. 

It laid down the Vishaka Guidelines to be treated as enforceable law until appropriate legislation  is enacted. The petition was allowed, and the Court directed all employers to implement these  guidelines. Further, it also paved the way for the Sexual Harassment of Women at Workplace  (Prevention, Prohibition and Redressal) Act, 2013.

RATIO DECIDENDI

The ratio decidendi of the Vishaka v. State of Rajasthan case lies in the Supreme Court’s categorical  declaration that sexual harassment at the workplace constitutes a violation of the fundamental  rights guaranteed under Articles 14, 15, 19(1)(g), and 21 of the Constitution of India. The Court  held that in the absence of specific legislation, it was the duty of the judiciary, under Article 32, to  enforce and protect these rights through effective guidelines.

Further, the Court recognised that gender equality and the right to work with dignity are part of the  universal human rights framework, and drew upon international obligations, particularly Articles  11(1)(a), 11(1)(f), and 24 of the Convention on the Elimination of All Forms of Discrimination  Against Women (CEDAW), to interpret the scope of these fundamental rights in a broader context.

Therefore, the binding legal principle established by the Court is that:

“In the absence of enacted law to provide for effective enforcement of the basic human right of  gender equality and guarantee against sexual harassment, guidelines and norms laid down by this  judgment are to be treated as the law declared by the Court under Article 141 of the Constitution  of India and shall be enforceable until such legislation is enacted by the Parliament.”

LEGAL DEFECTS

Despite significant reforms, the Sexual Harassment of Women at Workplace (Prevention,  Prohibition and Redressal) Act, 2013, has some loopholes.⁵, such as :

1. The Act protects only women, excluding men and LGBTQ+ individuals, making it non inclusive.
2. Penalties for non-compliance are limited to fines (₹50,000), lacking real deterrence⁶. 3. Informal and unorganised sectors often fall outside practical coverage. 4. Lack of clear criteria for external members raises concerns of bias and fairness. 5. The complainant bears most of the responsibility, with limited legal or emotional support. 6. There is no national authority to ensure implementation or training.
3. The Act offers no safeguards for witnesses against retaliation.

RELEVANCE AND IMPACT OF THE CASE IN THE LEGAL SCENARIO 

The Vishaka judgment holds monumental relevance in Indian constitutional and gender justice  jurisprudence. It was the first case where the Supreme Court used international conventions  (CEDAW) to frame domestic law in the absence of specific legislation, setting a strong precedent  for judicial law-making under Article 141⁷.

It expanded the interpretation of Article 14⁸, 15⁹, 19(1)(g)¹⁰, and 21¹¹, affirming that the right to  work includes the right to a safe and dignified workplace. This case established the principle that  courts can issue binding guidelines when legislative gaps threaten fundamental rights, strengthening the doctrine of judicial activism in India.

In terms of long-term impact, the Vishaka Guidelines laid the groundwork for the enactment of the  Sexual Harassment of Women at Workplace.¹² (Prevention, Prohibition and Redressal) Act, 2013.  It further encourages many organisations to adopt Internal Complaints Committees (ICCs) and  gender-sensitive workplace policies. The guidelines also impacted the structure, scope, and  procedural safeguards of the law.¹³. 

Overall, the judiciary’s role was enhanced in protecting human dignity and bridging legislative  inertia, while also influencing several future rulings on women’s rights and workplace equality.¹⁴.

CONCLUSION 

The Vishaka judgment marked a transformative moment in Indian constitutional jurisprudence by  firmly placing gender justice and workplace dignity within the scope of enforceable fundamental  rights. In the absence of any statutory framework, the Supreme Court’s proactive approach  demonstrated that constitutional morality and judicial responsibility must fill legislative voids,  especially when the rights of vulnerable groups are at stake.

The Court rightly observed that gender equality is not merely a formal right but a lived experience  that must be protected through enforceable norms. By recognising that sexual harassment, even  without physical contact, can degrade a woman’s autonomy¹⁵ And violate her dignity, the Court  emphasised the understanding of workplace abuse.¹⁶ In compliance with global human rights  standards, especially the Convention on the Elimination of All Forms of Discrimination Against  Women (CEDAW)¹⁷, an international treaty adopted by the United Nations in 1979, to which India  is a signatory.

The Vishaka Guidelines served as interim law and were enforced under Article 141¹⁸ Of the  Constitution. And provided an institutional mechanism to address issues, set preventive measures,  and safeguard the workplace and women workers from oppression. These guidelines filled the  policy vacuum for over 16 years until the enactment of the Sexual Harassment of Women at  Workplace (Prevention, Prohibition and Redressal) Act, 2013¹⁹.

In conclusion, Vishaka v. State of Rajasthan is not just a judgment, but it is a judicial affirmation  of the right to work with dignity. It emphasises the role of the judiciary as the preserver of  constitutional values, and sets a powerful precedent of how judicial creativity can implement  statutory rights into reality, especially for those whose voices are often silenced.

Reference(S):

¹ Vishakha & Ors. v. State of Rajasthan & Ors. (1997) SC 3011

² Ayush Bardhan, ‘Revisiting Vishakha v. State of Rajasthan’ (POSH at Work. 10 March 2025)  https://poshatwork.com/revisiting-vishakha-v-state-of rajasthan/#:~:text=State%20of%20Rajasthan%2C%20the%20Supreme,in%20formulation%20the%20POSH%20Act .&text=Bench%3A%20J.S.,Kirpal%2C%20J. accessed 29 July 2025

³ Geeta Pandey, ‘Bhanwari Devi: The rape that led to India’s sexual harassment law’ BBC News (17 March 2017)  https://www.bbc.com/news/world-asia-india-39265653 accessed 29 July

⁴ Diva Devarsha. ‘IMPLEMENTATION OF VISHAKHA GUIDELINES: POST VISHAKHA JUDGEMENT’ (2014- 15) 1.1 https://docs.manupatra.in/newsline/articles/Upload/4CB946FF-8CD7-45CB-B0A6-40495E8056E3.1- i_service.pdf accessed 29 July 2025

⁵ T M Glomb et al, ‘Structural equation models of sexual harassment: longitudinal explorations and cross-sectional  generalizations’ (1999) 84(1) https://pubmed.ncbi.nlm.nih.gov/10089815/ accessed 28 July 2025

⁶ Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, s 26 (1) (c)

⁷ Constitution of India 1950, art 141

⁸ Constitution of India 1950, art 14

⁹ Constitution of India 1950, art 15

¹⁰ Constitution of India 1950, art 19 (1) (g)

¹¹ Constitution of India 1950, art 21

¹² Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013

¹³ Aadish Goel. ‘Vishakha and Others vs the State of Rajasthan: The Importance of Due Process and Its Effectiveness  in Addressing Sexual Harassment’ (June 3, 2021) http://dx.doi.org/10.2139/ssrn.3859309 accessed 28 July 2025

¹⁴ Kingsley R. Browne, ‘Sex, power, and dominance: the evolutionary psychology of sexual harassment’ (2006)  27(2-3) https://doi.org/10.1002/mde.1289 accessed 29 July 2025

¹⁵ Steven H. Lopez et al, ‘Power, Status, and Abuse at Work: General and Sexual Harassment Compared’ (2009)  50(1) https://doi.org/10.1111/j.1533-8525.2008.01131.x accessed 29 July 2025

¹⁶ Sarpotdar, Anagha. “Sexual Harassment of Women at Workplace In India: Journey From A Workplace Problem To  A Human Rights Issue” (2014) 3 https://www.semanticscholar.org/paper/Sexual-Harassment-of-Women-at-Workplace-in-India%3A-a Sarpotdar/32c368ea1096aa141eed1de86672d7c7c797b4d6 accessed 26 July 2025

¹⁷ Un Women, Convention on the Elimination of All Forms of Discrimination Against Women (1979)  https://www.un.org/womenwatch/daw/cedaw/ accessed 28 July 2025

¹⁸ Constitution of India 1950, art 141

¹⁹ Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013