Introduction and Overview of Vishakha

Judgment and Vishakha Guidelines

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As Zia Mody says in her book, Ten Judgments that Changed

India, "Judicial activism reached its pinnacle in Vishakha Vs.

State of Rajasthan."

The Supreme Court provided the first authoritative decision of

'sexual harassment at workplace. In India The Supreme

Court acknowledged and relied to a great extent on

international treaties that had not been transformed into

municipal law and; It confronted with a statutory vacuum, it

went creative and proposed the route of 'judicial legislation.

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Facts: Bhanwari Devi, who was a social worker (Saathin) in

Rajasthan was brutally gang raped by a number of upper

class men as she had tried to stop a child marriage. The

incident took place in 1992. Bhanwari Devi was determined

to get justice so she lodged a case against the offenders.

However, the accused were acquitted by a trial court.

Several inspired women’s groups and NGOs filed a PIL

(Public Interest Litigation) in the Supreme Court under the

collective platform of Vishakha asking the court to give

certain directions regarding the sexual harassment that

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women face at the workplace.
 The result is the Supreme Court judgment, which came on

the 13th August 1997, and gave the Vishakha guidelines.

The judgment of August 1997 provided the basic definitions

of sexual harassment at the workplace and provided

guidelines to deal with it. It is seen as a significant legal

victory for women's groups in India. The Supreme Court

had inspected the case which highlighted the problem of

Gender Inequality, outraging the modesty of women, sexual

harassment at the workplace and rape as societal issues of

substantial intensity. Thus violence against women. 4

What was the decision? Issue of the case With no domestic
legislation to adequately address sexual harassment in the
workplace, the Court undertook measures to enforce gender
equality and non- discrimination in accordance with universal
human rights norms and standards.
Sexual harassment in the workplace is a violation of women’s
human rights, specifically: In Constitution of India ;-
Article 14: Equality before the law.
Article 15: Prohibition of discrimination on grounds of religion,
race, caste, sex or place of birth .
Article 19 (1)(g): Right to practice one’s profession, or to carry
on any occupation, trade or business
Article 21: Right to life and personal liberty.
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 In particular, the Court referred to India’s ratification of

the Convention on the Elimination of All Forms of

Discrimination against Women (CEDAW), which prohibits

discrimination in the workplace and outlines specific state

obligations to end it: Article 11(1)(a, f): The right to work

and the right to protection of health and to safety in

working conditions, including the safeguarding of the

function of reproduction.
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Article 24: States parties undertake to adopt all necessary

measures at the national level aimed at achieving the full

realization of the rights recognized in the present

Convention General Recommendation No. 19: On the

elimination of violence against women.

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Sexual Harassment includes any one or more of the following
unwelcome acts or behavior (whether directly or by implication)
namely :
physical contact and advances; or
a demand or request for sexual favour; or
sexually colored remarks; or
showing pornography; or
other offensive or derogatory pictures
cartoons; or
any other unwelcome physical, verbal or
non-verbal conduct of sexual nature.
anything at work that can place the working woman at
disadvantage compared to other male employees in her
official career just because she is a woman – can be termed 8
Sexual Advances

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Unsavory remarks

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 Jokes causing or likely to cause
awkwardness or embarrassment

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Innuendos and taunts

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Gender based insults or sexist remarks

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Unwelcome sexual overtones in any manner

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Touching or brushing against any part of the body and the like

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Displaying pornographic or other offensive or derogatory
pictures, cartoons, pamphlets or sayings

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Physical confinement against one’s will and
any other act likely to violate one’s privacy

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Abuse of authority or power

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 In Short
Workplace Sexual Harassment is when the
behavior is
- Unwelcome

- Sexual in Nature

- A Subjective Experience

- Impact not the intent matters

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Workplace Sexual Harassment
typically involves acts of which the victim has reasonable
apprehension that they are
 Humiliating

 Unsafe

 Unhealthy

 Discriminatory

 Career limiting

 Otherwise causing adverse circumstances

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 Sec 3(2) of the Act

Following acts when in relation to behavior of Sexual

Harassment may amount to sexual harassment
(i) implied or explicit promise of preferential treatment in her
employment; or
(ii) implied or explicit threat of detrimental treatment in her
employment: or
(iii) implied or explicit threat about her present or future
employment status; or
(iv) interference with her work or creating an intimidating or
offensive or hostile work environment for her; or
(v) Humiliating treatment likely to affect her health or safety.
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 Gender equality includes protection from sexual

harassment and the right to work with dignity as per our

constitution. Extra hazard for a working woman compared

her male colleague is clear violation of the fundamental

rights of ‘Gender Equality’ & Right to Life and Liberty. Safe

working environment is fundamental right of a working

woman. In no way should working women be discriminated

at the workplace against male employees. (If a woman is,

then it must be documented in company policies, for

example limitation of women in police and armed forces.)

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‘ GUIDELINES In its judgment, the Court provided a set of

guidelines for employers – as well as other responsible

persons or institutions – to immediately ensure the

prevention of sexual harassment. These guidelines were

formulated since the then civil and penal laws in India did

not adequately provide for specific protection of women

from sexual harassment in workplace.

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In accordance with Article 141 of India’s Constitution, these
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guidelines were to be considered law until appropriate legislation

was created: 1. Duty of the Employer or other responsible

persons in work places and other institutions 2. Preventive Steps

3. Criminal Proceedings 4. Disciplinary action 5. Complaint

mechanism 6. Complaints committee 7. Worker’s initiative 8.

Awareness 9. Any third party .

It shall be the duty of employer (and person in charge) to take all

necessary and reasonable steps, so as to assist the affected

person (in terms of support and preventive action). No prejudice

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Superseded the Vishakha Guidelines The Sexual Harassment

of Women at Workplace (Prevention, Prohibition And

Redressal) Act, 2013 makes it illegal to sexually harass

women in the workplace. This Act is only for women who

are sexually harassed in workplaces. The Act is for any

woman who is harassed in any workplace. It is not

necessary for the woman to be working at the workplace in

which she is harassed. A workplace can be any office,

whether government or private. The Act defines sexual

harassment at the work place and creates a mechanism for

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redressal of complaints..
 It also provides safeguards against false or malicious

charges. Even if there are no cases of sexual harassment at

the moment, it is still necessary for the committee to be set

up (if you employ more than 10 workers) and for all rules to

be followed. It talks about the different ways in which

someone can be sexually harassed and how they can

complain against this kind of behavior.

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The Act gives you a choice between dealing with the offender

within the office or approaching a court. If you wish, you

can file a criminal complaint instead of approaching your

Internal/Local Complaints Committee. Every employer is

required to constitute an Internal Complaints Committee at

each office or branch with 10 or more employees. The

District Officer is required to constitute a Local Complaints

Committee at each district, and if required at the block

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The Committee is required to complete the inquiry within a

time period of 90 days. On completion of the inquiry, the

report will be sent to the employer or the District Officer,

as the case may be, they are mandated to take action on

the report within 60 days. The Complaints Committees

have the powers of civil courts for gathering evidence. The

Complaints Committees are required to provide for

conciliation before initiating an inquiry, if requested by the

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The inquiry process under the Act should be confidential and

the Act lays down a penalty of Rs 5000 on the person who

has breached confidentiality. The Act requires employers to

conduct educational programmes and develop policies

against sexual harassment, among other obligations.

Penalties have been prescribed for employers. Non-

compliance with the provisions of the Act shall be punishable

with a fine of up to 50,000/-.₹ Repeated violations may lead

to higher penalties and cancellation of license or registration

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Government can order an officer to inspect workplace and

records related to sexual harassment in any organization.

Under the Act, which also covers students in schools and

colleges as well as patients in hospitals, employers and

local authorities will have to set up grievance committees

to investigate all complaints. Employers who fail to comply

will be punished with a fine of up to 50,000/- rupees.

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Education and Awareness is the key

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 Make sure there is a policy that has been “effectively”

communicated to all workers, irrespective of whether they

are paid or volunteers.

 Display details of both informal and formal ways available

to a worker to address/complain about workplace sexual

harassment.

 Undertake orientation on workplace sexual harassment for

all workers in respective organizations, establishments or

institutions.

 A Complaints Committee which is trained in terms of skill32

 Encourage senior persons/leaders/supervisors or any

person who can influence employment related decisions, to

become role models.

 Men and women should be included in building a culture

which no longer tolerates workplace sexual harassment.

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Q&A

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Thanks

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