Vishaka v State of Rajasthan and the Guidelines Era

Before 2013, India had no statute on sexual harassment at the workplace. In Vishaka v State of Rajasthan (1997), the Supreme Court filled that gap by laying down guidelines with the force of law, drawing on the Constitution and India's international obligations. For sixteen years, these guidelines, refined in later cases, governed the field. This note explains the case, the guidelines, the decisions that applied them, and their relationship with the POSH Act.

1. Vishaka v State of Rajasthan (1997)

Figure 1: From the facts to the guidelines

• Background. Bhanwari Devi, a grassroots worker in a State programme in Rajasthan, was gang-raped in 1992 in reprisal for her efforts to prevent a child marriage. The incident showed the hazards faced by working women and the absence of any legal protection.
• Holding. A three-judge bench led by Chief Justice J.S. Verma held that sexual harassment at the workplace violates the rights to equality, to practise a profession and to life and dignity under Articles 14, 15, 19(1)(g) and 21.
• Use of CEDAW. In the absence of domestic law, international conventions consistent with fundamental rights may be read into them. The Court relied on CEDAW and the Beijing Statement to frame the guidelines.
• Binding force. The guidelines were declared to be law under Article 141, binding on employers in the public and private sectors until suitable legislation was enacted.

Figure 2: Content of the guidelines

2. Cases in the Guidelines Era

Figure 3: Before and after Vishaka

• Apparel Export Promotion Council v A.K. Chopra (1999). The Supreme Court applied Vishaka in a disciplinary case, holding that sexual harassment does not require physical contact, that an attempt to molest is enough, and that sympathy for the harasser is misplaced. It upheld his removal from service.
• Medha Kotwal Lele v Union of India (2012). Finding that the guidelines were widely ignored, the Court directed States to amend service rules, required the complaints committee's report to be treated as the inquiry report in disciplinary proceedings, and called for effective committees in all organisations.

3. Guidelines and the Act

• Codification. The Act adopts the Vishaka definition of sexual harassment and its complaints committee model.
• Extension. It widens the meaning of workplace, adds a Local Committee for small establishments and the unorganised sector, covers domestic workers, fixes timelines and prescribes penalties.
• Continuing relevance. Vishaka and the cases decided under it remain authoritative on the constitutional basis and on questions the Act does not answer expressly.

4. Frequently Asked Questions

How could the Supreme Court make guidelines with the force of law in Vishaka?

The Court acted under Article 32 to enforce fundamental rights and declared the guidelines to be law under Article 141. It held that, in the absence of domestic law, international conventions such as CEDAW, consistent with the fundamental rights, could be read into them to fill the vacuum until Parliament legislated.

Is physical contact necessary for sexual harassment?

No. In Apparel Export Promotion Council v A.K. Chopra (1999), the Supreme Court held that sexual harassment does not require physical contact; unwelcome sexually determined behaviour, including an attempt to molest, is enough.

5. Related Topics

• Topic 1: POSH Act, 2013: Background, Object and Scheme. The statute that followed.
• Topic 27: Leading Cases on Sexual Harassment at Workplace. All the cases together.