News By/Courtesy: Ritwik Guha Mustafi | 05 Apr 2020 9:12am IST


  • No concrete rules for protection of women from sexual harassment in workplace prior to this case
  • Vishaka case laid down guidelines for prevention of sexual harassment of women at workplace
  • Some major lapses are there and there is scope of improvement

‘A woman is like a tea bag. You can’t tell how strong she is until you put her in hot water’. The idea of “women empowerment” was started and developed through the grass-root movements in the U.S.A in the context of civil rights and women rights.[1] If we look at Indian scenario, we find that during the RigVedic period (roughly 1500 B.C.E- 500 B.C.E), women were given a number of rights and freedoms such as right to education, right to take part in political activities, right to property etc. This position changed during Later Vedic Age, Mughal period, and British Raj. Now, most of the women rights were no longer in existence. The women were considered to be below the menfolk. Even in the present scenario, women are often victims of biasedness, inequality, and harassment even though they may be holding good positions and are self-dependent. Sexual harassment of women at workplace has always been one of the major issues in the women’s movement for a long time. A lot of cases of sexual harassment were and are still going unreported due to fear of repercussions to well-being and reputation of the victims and their families in the society. The case of Vishaka v/s State of Rajasthan {(1997) 6 S.C.C 241} is a landmark case with regards to sexual harassment of women at workplace. This case led to the creation of guidelines by the Supreme Court of India to curb this evil practice.


Bhanwari Devi was a social activist in one of the villages in Rajasthan and worked for stopping child marriages in the village. She endeavoured to stop the marriage of Ramkaran Gujjar’s daughter who was still an infant. She was not excused for this ‘fault’ and was subjected to social boycott. She was gang-raped by Ramkaran Gujjar and his five friends in front of her husband on September 1992. She was declined treatment at the primary helath center. The police also repeatedly taunted her when she approached them to file a complaint. The trial court discharged the accused for being not guilty. Various women activists and social organizations voiced their support to Devi and a Public Interest Litigation (PIL) was filed in the Apex court under the name ‘Vishaka’.[2]


  • Whether or not it is mandatory for enacting guidelines for prevention of sexual harassment of women at workplace?[3]


The apex court observed that each such incident violates the basic rights of ‘Gender Equality’ and therefore the right of life and personal liberty under article 21 of the Indian Constitution. Also, every profession or trade should provide safe working environment to the employees. Sexual harassment at workplace hampers the victim’s right to live a dignified life. Thus, the court laid down certain guidelines to be followed by the employers and employees in the workplaces to avoid sexual harassment of women at workplace. These guidelines were simply called the ‘Vishaka guidelines’ which were later incorporated into Sexual Harassment at workplace (Prevention, Prohibition, and Redressal) Act 2013.[4]


Prior to the Vishaka case, there were no formal guidelines which dealt with prevention of sexual harassment of women at the workplace. There are provisions in the Indian Penal Code (hereinafter I.P.C), 1860 which deal with the offence of sexual harassment. Section 354 of the I.P.C speaks of any assault or criminal force done upon a woman with the intent of outraging her modesty. Punishment under section 354 includes imprisonment for at least one year which may extend to five years and fine.[5]

Section 354-A of the I.P.C speaks about sexual harassment. As per this section, sexual harassment includes the following:-

  • Physical contacts and advances involving unwelcome and explicit sexual overtures; or
  • A demand or request for sexual favours; or
  • Showing pornography without the woman’s will; or
  • Making sexually coloured remarks.[6]


Critical analysis.

The Vishaka guidelines and norms incorporated the definition and elements of sexual harassment given in section 354-A of the I.P.C. The intent of the judgement by the apex court was very noble and can be justified through Hohfeld’s analysis. Professor Hohfeld identified eight atomic particles by splitting the atom of legal discourage which he called the “lowest common denominators of law”. Hohfeld divided these eight into pairs which can’t be together (jural opposites) and pairs which have to be together (jural correlatives).[7]

Jural Opposites






No- Right





Jural Correlatives











For the purpose of this paper, special focus will be on trio of Right, Duty, and No-Right. There is a right to life (right to live with dignity) and personal liberty except according to procedure established by law[8]. So, no other person has a right to violate it in an unjustified manner (No-right). On the other hand, state or any other competent authority has the duty to protect this right to live a dignified life and have liberty from any unjust encroachment.

The guidelines laid down in the Vishaka judgement stated the duty of the employers to prevent or deter the commission of sexual harassment and provide procedures for resolution, settlement, and prosecution for any such act. The guidelines also mentioned the need to establish a complaints committee headed by a woman to address the grievances.[9]

The post-1991 period saw a surge in the number of female employees in different establishments. This led to increase in the cases of sexual harassment of women. There were gross violations of the law and no legal remedies. A healthy work environment was missing.[10] The researcher opines that the apex court gave a good decision by upholding the fundamental rights of life[11], equality protection of law[12], special provisions for women and children[13], and directive principle stating that derogatory practices against women are to be renounced.[14] The guidelines set down by this case played a pivotal role in enhancing women’s liberty and dignity in the workplace and providing them with a just and humane condition of work as is required by a Directive Principle.[15]

The apex court also relied upon article 11 of Convention on the Elimination of All Forms of Discrimination against Women (hereinafter CEDAW) 1981 which provides for appropriate measures to be taken by the state parties to eliminate discrimination against women in field of employment. The apex court beautifully justified this step by stating that there is a dearth of domestic laws with regards to prevention of sexual harassment against women at workplace and that any international convention which is not inconsistent with the fundamental rights and in harmony with its spirit must be read into the constitutional provisions to promote the object of constitutional guarantee. This would in turn help to foster respect for international law and treaty obligations.[16] The court also referred to a precedent wherein a provision of International Covenant on Civil and Political Rights (hereinafter ICCPR) 1976 was referred to support the view taken that an enforceable right to compensation isn’t alien to concept of enforcement of a guaranteed right.[17] The researcher opines that the aforesaid justification is apt as per the situation.

The researcher now shifts the focus on the practicality of the 2013 act which entails various guidelines laid down in the Vishaka case. This act includes the creation of an Internal Complaints Committee (sec. 4) within the workplace and also the creation of a Local Complaints Committee (sec. 5-8). The act also lays down the duties of employer (sec. 19) and that of District officer (sec. 20). The act also lays down the procedure to make complaint of sexual harassment.

The researcher opines that the act is gender-biased in its objective. Although the act was created on grounds of art. 15(3) which provides for the special provisions for women and children, the researcher submits that men could also be victims of sexual harassment at workplace. There are no specific remedies for men to avail. The researcher opines that the language of the title of the act should be changed to “An act to provide protection against sexual harassment of people in workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or thereto”.

The researcher also feels that the period of 3 months given to file/report the case of sexual harassment {sec. 9 (1)} is deterrent for those women who are reluctant to file the cases. More awareness is to be created among the women at workplace through various notifications and encouragement is to be given to raise such issues in an appropriate forum.

Section 14 of the act provides for punishment for malicious complaint and false evidence. This may deter those victims who have very little proof of harassment they have endured.


The Vishaka judgement is one of the most brilliant pieces of law enacted by the Supreme Court. The occurrences of sexual harassment were rampant in absence of any legal remedy. The way in which the apex court took the cognizance of the situation and laid down some important guidelines is praiseworthy. The court upheld the constitutional provisions and also did not hesitate to refer to the relevant international legal provision which shows the flexibility of the judiciary. This judgement did provide a platform for women to raise their issues. However, heaps remain to be done for better safety of the victims. In a democratic country like India, rights of both men and women have to be equally protected. The 2013 act does mark the recognition of a major problem faced by the women in the workplace but the act has several flaws which are to be properly addressed. All in all, the judgement and the resulting legislation is an important step towards preventing the issue of sexual harassment at workplace but there is a scope of improvement.


[1] Kavisha Gupta, Supreme Court case analysis:Vishaka v/s State of Rajasthan and Ors. , LATEST LAWS, (April 5, 2020, 09:40 A.M.)),

[2] Simran, Case Analysis: Vishaka v/s State of Rajasthan and Ors, LEGAL SERVICES INDIA, (April 5, 2020, 09:42 A.M.),

[3] Simran, ibid.

[4] Kavisha Gupta, supra note 1

[5] M.R.MALLICK, J., CRIMINAL MANUAL (CRIMINAL MAJOR ACTS) 159 (Professional’s, 2015)

[6] Id. at 160.

[7] R.D. Chaudhary, Hohfeld’s analysis of rights and duties, ACADEMIA EDU., (April 5, 2020, 09:45 A.M.),

[8] INDIA 21.

[9] Vishaka v/s State of Rajasthan (1997) 6 S.C.C 241 (India).

[10] H. Varshney, Vishaka v/s State of Rajasthan- Case summary, LAW TIMES JOURNAL, (April 5, 2020, 09:50 A.M.),

[11] INDIA CONST. supra note 8.

[12] INDIA CONST. art. 14.

[13] INDIA CONST. art. 15, cl. (3).

[14] INDIA CONST. art. 51A, cl. (e).

[15] INDIA CONST. art. 42.

[16] INDIA CONST. art. 51, cl. (c).

[17] Nilabati Behera v/s State of Orissa (1993) 2 S.C.C 746 (India).

Section Editor: Pushpit Singh | 05 Apr 2020 11:35am IST

Tags : Sexual, harassment, workplace, guidelines, prevention, protection

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