Everything you need to know about Vishaka Guidelines

Almost 15 years before the implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 it was the Vishaka Guidelines that put the onus of a safe working environment on the employer.  

In 1997, the Supreme Court formulated the Vishaka Guidelines making it mandatory for organisations, whether working in the private or public sector to establish a mechanism for redressal of sexual harassment complaints. 

But what triggered the apex court to formulate these extensive guidelines on workplace sexual harassment? Why is the onus on the employer? And who is Vishaka? 

Before we delve into the details, let’s look at the backdrop of this case.  

Bhanwari Devi (Vishaka & Ors. V/S State of Rajasthan, AIR 1997 Sc 3011) Case 

Bhanwari Devi is an Indian social worker from Bhateri, Rajasthan who was gang-raped while working under the Rajasthan government’s Women’s Development Programme. As a part of the program, she had to spread awareness about hygiene, family planning and the necessity of educating girls, along with campaigning against female foeticide, infanticide, dowry and child marriages. 

As a part of her duty, she was stopping the wedding of a nine-month-old daughter of Ramkaran Gujjar. To her dismay, she was put forward to social punishment for stopping the marriage. She was gang-raped by Ramkaran Gujjar and his five friends in front of her husband. 

Subsequently, Bhanwari Devi filed a criminal complaint against the offenders. Unfortunately, the accused were acquitted by a trial court, because everyone, including the village authorities, doctors and the police, dismissed her situation.

This injustice inspired several women’s groups and NGOs to file public interest litigation (PIL) in the Supreme Court under the collective platform of Vishaka. They demanded justice for Bhanwari Devi and urged action against sexual harassment in the workplace.

Vishaka Guidelines

The court, for the first time, relied on an international human rights law instrument, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), to establish guidelines known as the Vishaka Guidelines. 

These guidelines addressed the workplace hazards faced by women. The court emphasised that the employer must ensure the safety of their employees and others affected by their business. 

The court stated that such incidents violate the fundamental rights of gender equality and the right to life and liberty, as guaranteed under Articles 14, 15, and 21 of the Constitution. Consequently, the court issued a writ of mandamus and provided specific directions for prevention. Such as:

1. It shall be the duty of the employer or other responsible persons in workplaces or other institutions to prevent sexual harassment and to provide for the resolution and settlement mechanism.

2. The court defined what constitutes sexual harassment. For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:

a) physical contact and advances;

b) a demand or request for sexual favours;

c) sexually coloured remarks;

d) showing pornography;

e) any other unwelcome physical verbal or non-verbal conduct of a sexual nature.

3. Preventive Steps: All employers should take appropriate steps to prevent sexual harassment which shall include:

(a) Express prohibition of sexual harassment (as defined above) at the workplace should be notified, published and circulated in appropriate ways.

(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include prohibition of sexual harassment and provide for appropriate penalties against the offender.

(c) In regards to the private sector, employers should take steps to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, of 1946.

(d) Appropriate work conditions should be provided with respect to work, leisure, health, and hygiene to further ensure that there is no hostile environment towards women at workplaces.

4. Criminal Proceedings: The employer shall take appropriate action if any such behaviour by the perpetrator falls under the Indian Penal Code. The employer should file or assist the aggrieved in filing the complaint with the appropriate authority. Moreover, the employer shall ensure that the aggrieved or the witnesses are not victimised or discriminated against. 

5. Disciplinary Action: Where any such behaviour amounts to misconduct under the code of conduct or service rules, appropriate disciplinary action should be initiated by the employer by those rules.

6. Complaint Mechanism: Whether or not any such behaviour constitutes an offence under the law or the service rules, an appropriate complaint mechanism should be created in the employer’s organisation for effective redressal of such complaints. Such a complaint redressal mechanism should ensure the timely resolution of complaints.

7. Complaints Committee: The complaint mechanism, referred to in point (6) above, should be adequate to provide a Complaints Committee, a special counsellor or other support services, including the maintenance of confidentiality of such complaints.

The Complaints Committee should be headed by a woman and not less than half of its members should be women. Also, to prevent the possibility of any bias or influence from senior levels, such a Complaints Committee should involve a third party, either an NGO or other bodies who are familiar with the issue of sexual harassment.

The Complaints Committee must prepare an annual report including the number of complaints received and the action taken by them. Such a report shall be submitted to the government department concerned with the complaints. The employers and person in charge shall also report on the compliance to the Government department.

8. Workers’ Initiative: Employees should be allowed to raise issues of sexual harassment at workers’ meetings and in other appropriate forums and it should be affirmatively discussed in Employer-Employee Meetings.

9. Awareness: Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines.

10. Where the perpetrator of sexual harassment is a third party or an outsider, the employer and person in charge shall take all steps necessary and reasonable to assist the aggrieved in terms of support and preventive action.

11. The Central/State governments are requested to consider adopting measures including legislation to ensure that the guidelines laid down by the court are also observed by the employers in the Private Sector.

The Vishaka Guidelines have laid the foundation for the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. As per the current regime, employers with 10 or more employees are required to constitute an internal complaints committee, conduct training, and awareness sessions, etc. Ungender has the expertise and resources to help you comply with the Act, conduct training sessions, constitute Internal Committees (IC) for all your offices and find an external member for your IC.