Supreme Court of India · 1997
Vishaka & Ors. v. State of Rajasthan & Ors.
(1997) 6 SCC 241 · AIR 1997 SC 3011
Court
Supreme Court of India
Bench
Verma CJI, Sujata V. Manohar, B. N. Kirpal
Date of judgment
13 August 1997
Jurisdiction
Writ petition under Article 32
Vishaka is the judgment every workplace sexual-harassment matter in India still begins from. It was decided on 13 August 1997, sixteen years before Parliament legislated, and it did something courts rarely do: faced with a statutory vacuum, the Supreme Court wrote the rules itself and declared them binding. Understanding what the Court actually said is the fastest way to understand why the POSH Act 2013 is drafted the way it is.
Why the Court could make rules at all
The petition was a class action under Article 32, brought to enforce the fundamental rights of working women under Articles 14, 19 and 21. The Court recorded that the right to carry on any occupation, trade or profession under Article 19(1)(g) depends on the availability of a safe working environment — which is what makes harassment at work a constitutional question and not merely a service-rules one. A writ of mandamus, the Court reasoned, would be ineffective unless accompanied by directions for prevention, because the violation is a recurring phenomenon.
Having found the vacuum, the Court laid down guidelines and norms and declared them to be law under Article 141, to operate until suitable legislation was enacted. In doing so it drew on the Convention on the Elimination of All Forms of Discrimination against Women — in particular the General Recommendation on Article 11, that equality in employment can be seriously impaired when women are subjected to gender specific violence such as sexual harassment in the workplace — reading it with Article 253 and the Seventh Schedule, and with the definition of human rights in Section 2(d) of the Protection of Human Rights Act, 1993.
The definition the Court wrote — and where it went
Vishaka defined sexual harassment as unwelcome sexually determined behaviour, whether directly or by implication, comprising:
- physical contact and advances
- a demand or request for sexual favours
- sexually coloured remarks
- showing pornography
- any other unwelcome physical verbal or non-verbal conduct of sexual nature
Why this matters in practice
Those five limbs are the five acts now set out in Section 2(n) of the POSH Act 2013. A policy or an inquiry report that works from the statutory definition is working from Vishaka, whether or not it says so — which is why the judgment is still argued, and why an internal committee that has never read it tends to misjudge the fifth limb, the residual category of unwelcome verbal and non-verbal conduct.
What the guidelines required of employers
The obligations were addressed to all employers or persons in charge of a workplace, in the public or the private sector. In outline the Court required:
- Preventive steps — appropriate steps to prevent sexual harassment, beginning with express prohibition at the workplace, notified, published and circulated in appropriate ways.
- A complaint mechanism — created within the employer’s organisation, whether or not the conduct also amounts to an offence or a breach of service rules, and ensuring time-bound treatment of complaints.
- A Complaints Committee — the mechanism to be adequate for that purpose.
- Awareness — of the rights of female employees, created in particular by prominently notifying the guidelines in a suitable manner.
- Third-party harassment — where harassment occurs by an act or omission of a third party or outsider, the employer and person in charge to take all steps necessary and reasonable to assist the affected person.
From guidelines to statute
The field is now occupied by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, and that Act — not the guidelines — is what an employer complies with today. But the lineage is direct, and it is the reason the statutory scheme reads as it does:
The Vishaka definition
Section 2(n) — the five acts
The Complaints Committee
Section 4 — the Internal Committee, constituted by an order in writing
Preventive steps and awareness
Section 19 — the employer’s duties
One consequence is worth stating plainly, because it is the point most often got wrong: the Act imposes the duty to constitute an Internal Committee on every employer under Section 4(1), with no headcount qualification at all. The ten-worker figure that appears in commentary lives in Section 6(1), which is a provision about where a complaint goes when there is no Internal Committee — not an exemption from having one. Vishaka is the reason: the duty was always framed as owed by every employer.
Frequently asked questions
What is the Vishaka judgment?
Vishaka & Ors. v. State of Rajasthan & Ors. is a judgment of the Supreme Court of India delivered on 13 August 1997 by a bench of Verma CJI, Sujata V. Manohar and B. N. Kirpal. It was a class action brought under Article 32 of the Constitution for the enforcement of the fundamental rights of working women under Articles 14, 19 and 21. Because there was then no legislation covering sexual harassment at the workplace, the Court laid down binding guidelines and declared them to be law under Article 141 until Parliament legislated.
What are the Vishaka guidelines?
The judgment set out guidelines and norms addressed to employers. They include a duty on all employers, in the public or the private sector, to take appropriate steps to prevent sexual harassment, beginning with express prohibition of sexual harassment at the workplace notified, published and circulated in appropriate ways; the creation of an appropriate complaint mechanism within the organisation providing time-bound treatment of complaints; the constitution of a Complaints Committee; the creation of awareness of the rights of female employees by prominently notifying the guidelines; and a duty, where the harassment is by a third party or outsider, to take all steps necessary and reasonable to assist the affected person.
How did the Supreme Court define sexual harassment in Vishaka?
The judgment defined sexual harassment as unwelcome sexually determined behaviour, whether directly or by implication, comprising physical contact and advances; a demand or request for sexual favours; sexually coloured remarks; showing pornography; and any other unwelcome physical verbal or non-verbal conduct of sexual nature. Those five limbs were later carried into Section 2(n) of the POSH Act 2013.
Are the Vishaka guidelines still in force?
The field is now occupied by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which is the statute an employer must comply with today. The guidelines were expressly framed as an interim measure operating until suitable legislation was enacted. Vishaka nonetheless remains the constitutional foundation of the subject, it continues to be cited, and the statutory scheme reproduces its core: the definition in Section 2(n), the committee in Section 4, and the employer duties in Section 19 all trace directly to it.
Why did the Supreme Court rely on an international convention?
The Court drew on the Convention on the Elimination of All Forms of Discrimination against Women, in particular the General Recommendation on Article 11, which records that equality in employment can be seriously impaired when women are subjected to gender specific violence such as sexual harassment in the workplace. The constitutional route for doing so is Article 253, under which Parliament may legislate to implement an international convention, read with the relevant entries of the Seventh Schedule. The Court also referred to the definition of human rights in Section 2(d) of the Protection of Human Rights Act, 1993.
Which fundamental rights were engaged?
Articles 14, 19 and 21. The judgment records specifically that the fundamental right to carry on any occupation, trade or profession under Article 19(1)(g) depends on the availability of a safe working environment, so that sexual harassment at the workplace violates that right as well as the rights to equality and to life and personal liberty. The Court also referred to Article 15, Article 42 and the fundamental duty in Article 51A to renounce practices derogatory to the dignity of women.