Vishaka v. State of Rajasthan

After an alleged gang rape of a social worker in a Rajasthan village, women's groups filed a class action under Article 32. There was no law on sexual harassment at work. The Supreme Court read the fundamental rights together with international conventions and laid down binding guidelines for all workplaces until Parliament legislates.

Quick Revision

Read the full judgment: Indian Kanoon (unofficial copy)

Parties

Vishaka and others — petitioners; certain social activists and NGOs who brought the petition as a class action.

State of Rajasthan and others — respondents; notice of the petition was given to the State.

Union of India — a party to whom notice was given; the Solicitor General appeared for it and helped the Court, and the Union consented to the guidelines.

Fali S. Nariman — amicus curiae (a friend of the court, who assists it); he rendered great assistance.

Ms. Meenakshi Arora and Ms. Naina Kapur — counsel who assisted the Court with full commitment.

Procedural History

1. The petition was filed directly in the Supreme Court under Article 32 for enforcement of the fundamental rights of working women under Articles 14, 19 and 21 (Verma, C.J.I.).
2. Notice of the petition was given to the State of Rajasthan and the Union of India. The Solicitor General appeared for the Union (Verma, C.J.I.).
3. Progress at each hearing culminated in the formulation of guidelines. The Union of India consented to them through the Solicitor General (Verma, C.J.I.).
4. The Court delivered judgment on 13 August 1997 and disposed of the writ petitions accordingly (Verma, C.J.I.).

Facts

1. The immediate cause of the petition was an incident of alleged brutal gang rape of a social worker in a village of Rajasthan (Verma, C.J.I.).
2. That incident is the subject of a separate criminal action. The Court said no further mention of it was necessary (Verma, C.J.I.).
3. The petition was brought as a class action by certain social activists and NGOs. They aimed to focus attention on this societal aberration and to help find methods for realising gender equality (Verma, C.J.I.).
4. They also aimed to prevent sexual harassment of working women in all work places through the judicial process, to fill the vacuum in existing legislation (Verma, C.J.I.).
5. The judgment records no other facts of the case.

Issues Raised

The judgment does not frame issues in numbered form. It addresses the following questions.

1. Does sexual harassment of working women violate their fundamental rights under Articles 14, 15, 19(1)(g) and 21, so as to attract the remedy under Article 32?
2. Can the Court lay down guidelines for the protection of these rights, in the absence of legislation?
3. Can international conventions and norms be read into the fundamental rights to give them content?

Arguments Contended

The reported judgment does not set out the arguments of either side. It records the following.

• The petitioners' case, as recorded, was that sexual harassment violates the fundamental rights of working women and that guidelines are needed to fill the vacuum in legislation (Verma, C.J.I.).
• The Solicitor General appeared for the Union of India. He helped the Court find a proper solution, and the Union gave its consent to the guidelines (Verma, C.J.I.).
• The judgment records no argument of the State of Rajasthan.

Court's Reasoning

The judgment is a single opinion by Verma, C.J.I. for the Bench of the Chief Justice, Sujata V. Manohar and B.N. Kirpal. It has no numbered paragraphs, so steps cite the opinion.

Verma, C.J.I. (for the Bench)

The petition and the need for guidelines

1. Noted: The petition is for enforcement of the fundamental rights of working women under Articles 14, 19 and 21. Gender justice is receiving more emphasis, and resentment towards sexual harassment is increasing. (Verma, C.J.I.)
2. Noted: It is a class action to focus attention on this societal aberration, assist in finding methods for gender equality and prevent sexual harassment of working women through the judicial process. (Verma, C.J.I.)
3. Noted: The alleged gang rape is the subject of a separate criminal action. It shows the hazards to which a working woman may be exposed and the depravity to which sexual harassment can degenerate. (Verma, C.J.I.)
4. Noted: It shows the urgency for safeguards by an alternative mechanism in the absence of legislative measures, to fulfil a felt and urgent social need. (Verma, C.J.I.)
5. Held: Each such incident violates the fundamental rights of Gender Equality and the Right of Life and Liberty. It is a clear violation of Articles 14, 15 and 21. (Verma, C.J.I.)
6. Held: A logical consequence is violation of the victim's fundamental right under Article 19(1)(g) to practise any profession or carry on any occupation, trade or business. Such violations attract the remedy under Article 32. (Verma, C.J.I.)
7. Held: This class action is under Article 32. A writ of mandamus needs directions for prevention to be effective, since such violations recur. (Verma, C.J.I.)
8. Held: The right to carry on an occupation depends on a "safe" working environment. "Right to life means life with dignity". (Verma, C.J.I.)
9. Held: The primary responsibility for ensuring safety and dignity, by suitable legislation and an enforcement mechanism, is that of the legislature and the executive. (Verma, C.J.I.)
10. Held: When instances of sexual harassment violating rights under Articles 14, 19 and 21 come up under Article 32, an effective remedy needs guidelines to fill the legislative vacuum. (Verma, C.J.I.)
11. Noted: Notice went to the State of Rajasthan and the Union of India. The Solicitor General appeared for the Union and helped the Court as a Law Officer. (Verma, C.J.I.)
12. Noted: Ms. Meenakshi Arora and Ms. Naina Kapur assisted, and Shri Fali S. Nariman appeared as amicus curiae. The Court placed on record its appreciation of all counsel. (Verma, C.J.I.)

Other constitutional provisions and international norms

1. Noted: Besides Articles 14, 19(1)(g) and 21, the Court refers to Article 15. Article 15(1) says the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. Article 15(3) allows special provision for women and children. (Verma, C.J.I.)
2. Noted: Article 42 requires the State to provide for just and humane conditions of work and maternity relief. (Verma, C.J.I.)
3. Noted: Article 51A lists the fundamental duties. It makes it a duty of every citizen to abide by the Constitution and to promote harmony and the spirit of common brotherhood. Clause (e) also requires renouncing practices derogatory to the dignity of women. (Verma, C.J.I.)
4. Noted: Article 51(c) requires the State to endeavour to foster respect for international law and treaty obligations. Article 253 lets Parliament make laws to implement any treaty, agreement, convention or decision of an international body. (Verma, C.J.I.)
5. Noted: Entry 14 of the Union List, in the Seventh Schedule, covers entering into treaties and agreements with foreign countries and implementing them. (Verma, C.J.I.)
6. Held: Where no domestic law occupies the field, the contents of international conventions and norms are significant. They help interpret the guarantee of gender equality and the right to work with human dignity in Articles 14, 15, 19(1)(g) and 21. (Verma, C.J.I.)
7. Held: Any international convention not inconsistent with the fundamental rights, and in harmony with their spirit, must be read into these provisions to enlarge their meaning and content. This is implicit from Article 51(c) and Article 253 read with Entry 14. (Verma, C.J.I.)
8. Noted: Article 73 says the executive power of the Union extends to matters on which Parliament can make laws. So that power is available until Parliament enacts measures to curb the evil. (Verma, C.J.I.)
9. Held: The Court's power under Article 32 and the Union's executive power must meet the challenge of protecting working women from sexual harassment. Rule of law requires this, and it is done in public interest. (Verma, C.J.I.)
10. Noted: The exercise reflects a perception shared with the Solicitor General and other members of the Bar. (Verma, C.J.I.)
11. Noted: The progress at each hearing led to the guidelines, to which the Union gave its consent. It said these should be the guidelines declared by the Court to govern employers and others at work places. (Verma, C.J.I.)
12. Held: "Gender equality includes protection from sexual harassment and right to work with dignity". It is a universally recognised basic human right, and its common minimum requirement has received global acceptance. (Verma, C.J.I.)
13. Held: International conventions and norms are therefore of great significance in framing the guidelines. (Verma, C.J.I.)
14. Noted: The Court's duty under Article 32 must be viewed with the role of the judiciary in the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region. The Chief Justices of Asia and the Pacific accepted it at Beijing in 1995 as minimum standards. (Verma, C.J.I.)
15. Noted: The objectives of the judiciary in the Beijing Statement include the following (Verma, C.J.I.).
    • To ensure that all persons can live securely under the Rule of Law.
    • To promote, within the proper limits of the judicial function, the observance and attainment of human rights.
    • To administer the law impartially among persons and between persons and the State.
16. Noted: Article 11(1) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) asks States to eliminate employment discrimination on the basis of equality. It lists the right to work as an inalienable right and the right to health protection and safety in working conditions. (Verma, C.J.I.)
17. Noted: Article 24 of CEDAW commits States to adopt all necessary national measures to realise the rights in the Convention. (Verma, C.J.I.)
18. Noted: CEDAW's general recommendations on Article 11 say that equality in employment can be seriously impaired by gender-specific violence, such as sexual harassment at the work place. (Verma, C.J.I.)
19. Noted: The recommendations describe sexual harassment as unwelcome sexually determined behaviour, such as physical contacts and advances, sexually coloured remarks, showing pornography and sexual demands. Such conduct can be humiliating and a health and safety problem. (Verma, C.J.I.)
20. Noted: The conduct is discriminatory when the woman has reasonable grounds to believe her objection would disadvantage her in employment, including recruitment or promotion, or when it creates a hostile working environment. (Verma, C.J.I.)
21. Noted: Effective complaints procedures and remedies, including compensation, should be provided. States should report on sexual harassment and on measures to protect women. (Verma, C.J.I.)
22. Noted: India ratified the CEDAW resolution on 25 June 1993 with reservations not material here. (Verma, C.J.I.)
23. Noted: At the Fourth World Conference on Women in Beijing, India committed to a national policy on women, a Commission for Women's Rights as a public defender of women's human rights, and a national mechanism to monitor the Platform for Action. (Verma, C.J.I.)
24. Held: The Court has no hesitation in relying on these to construe the nature and ambit of the constitutional guarantee of gender equality. (Verma, C.J.I.)
25. Held: The fundamental rights are of sufficient amplitude to cover all facets of gender equality, including prevention of sexual harassment or abuse. The independence of the judiciary forms part of the constitutional scheme. International conventions and norms are to be read into them when there is no enacted domestic law and no inconsistency. (Verma, C.J.I.)
26. Held: It is an accepted rule of judicial construction that regard must be had to international conventions and norms when construing domestic law, where there is no inconsistency and there is a void in domestic law. (Verma, C.J.I.)
27. Noted: The High Court of Australia in Minister for Immigration and Ethnic Affairs v. Teoh (128 ALR 535) recognised a legitimate expectation that such norms would be observed, absent contrary legislation. It did so even without a Bill of Rights. (Verma, C.J.I.)
28. Noted: In Nilabati Behera v. State of Orissa (1993 (2) SCC 746), a provision of the ICCPR was referred to. It supported the view that an enforceable right to compensation is not alien to enforcing a guaranteed right, as a public law remedy under Article 32 distinct from a private law remedy in torts. (Verma, C.J.I.)
29. Held: There is no reason why these conventions and norms cannot be used to construe the fundamental rights that embody gender equality in all spheres of human activity. (Verma, C.J.I.)
30. Held: Given the absence of enacted law on the basic human right of gender equality and protection against sexual harassment at work, the Court lays down guidelines and norms for all work places and other institutions until a law is enacted. (Verma, C.J.I.)
31. Held: This is done in exercise of the power under Article 32. It is emphasised that it will be treated as "the law declared by this Court under Article 141 of the Constitution". (Verma, C.J.I.)

The guidelines and norms

1. Noted: The guidelines have regard to the definition of human rights in Section 2(d) of the Protection of Human Rights Act, 1993. They take note that present civil and penal laws do not adequately protect women from sexual harassment at work, and legislation will take considerable time. (Verma, C.J.I.)
2. Held: Guideline 1, duty of the employer. The employer or other responsible persons must "prevent or deter the commission of acts of sexual harassment". They must provide procedures for resolution, settlement or prosecution by taking all steps required. (Verma, C.J.I.)
3. Held: Guideline 2, definition. Sexual harassment includes such unwelcome sexually determined behaviour, whether directly or by implication, as the following. (Verma, C.J.I.)
   • 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.
4. Held: This applies where the victim has reasonable apprehension in relation to her employment or work. It covers women drawing salary, honorarium or working voluntarily, in a government, public or private enterprise. (Verma, C.J.I.)
5. Held: The conduct can be humiliating and a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe her objection would disadvantage her in employment or work, including recruitment or promotion, or when it creates a hostile work environment. Adverse consequences might follow if she does not consent or objects. (Verma, C.J.I.)
6. Held: Guideline 3, preventive steps. All employers or persons in charge, in the public or private sector, must take appropriate steps, without prejudice to the generality of this duty. (Verma, C.J.I.)
   • Express prohibition of sexual harassment as defined must be notified, published and circulated in appropriate ways.
   • Rules and regulations of Government and public sector bodies on conduct and discipline must include rules prohibiting sexual harassment, with appropriate penalties for the offender.
   • For private employers, the prohibitions must be included in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
   • Appropriate work conditions must be provided for work, leisure, health and hygiene, so that there is no hostile environment and no woman has reasonable grounds to believe she is disadvantaged.
7. Held: Guideline 4, criminal proceedings. Where the conduct amounts to a specific offence under the Indian Penal Code or any other law, the employer must act by making a complaint to the appropriate authority. (Verma, C.J.I.)
8. Held: The employer must ensure that victims or witnesses are not victimised or discriminated against when complaints are handled. Victims should have the option to seek transfer of the perpetrator or their own transfer. (Verma, C.J.I.)
9. Held: Guideline 5, disciplinary action. Where the conduct is misconduct under the relevant service rules, the employer must start appropriate disciplinary action under those rules. (Verma, C.J.I.)
10. Held: Guideline 6, complaint mechanism. Whether or not the conduct is an offence or a breach of service rules, an appropriate complaint mechanism must be created in the employer's organisation. It must ensure time-bound treatment of complaints. (Verma, C.J.I.)
11. Held: Guideline 7, Complaints Committee. The mechanism must be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including confidentiality. (Verma, C.J.I.)
12. Held: The Committee must be headed by a woman, and not less than half of its members must be women. To prevent pressure from senior levels, it must involve a third party, either an NGO or another body familiar with sexual harassment. (Verma, C.J.I.)
13. Held: The Committee must make an annual report to the government department concerned on complaints and action taken. Employers and persons in charge must also report on compliance with the guidelines, including the Committee's reports. (Verma, C.J.I.)
14. Held: Guideline 8, workers' initiative. Employees must be allowed to raise issues of sexual harassment at workers' meetings and other appropriate forums. It should be affirmatively discussed in employer-employee meetings. (Verma, C.J.I.)
15. Held: Guideline 9, awareness. Awareness of female employees' rights must be created, in particular by prominently notifying the guidelines, and appropriate legislation when enacted. (Verma, C.J.I.)
16. Held: Guideline 10, third parties. Where sexual harassment results from an act or omission of a third party or outsider, the employer and person in charge must take all necessary and reasonable steps to assist the affected person in terms of support and preventive action. (Verma, C.J.I.)
17. Held: Guideline 11. The Central and State Governments are requested to consider adopting suitable measures, including legislation, to ensure that employers in the private sector also observe these guidelines. (Verma, C.J.I.)
18. Held: Guideline 12. The guidelines do not prejudice any rights under the Protection of Human Rights Act, 1993. (Verma, C.J.I.)
19. Held: The Court directs that the guidelines and norms be strictly observed in all work places to preserve and enforce the right to gender equality of working women. "These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field". (Verma, C.J.I.)
20. Held: The writ petitions are disposed of accordingly. (Verma, C.J.I.)

Authorities

• Minister for Immigration and Ethnic Affairs v. Teoh (128 ALR 535): High Court of Australia; legitimate expectation that international norms will be observed, even without a Bill of Rights (Verma, C.J.I.). The source prints the case as Minister fro Immigration and Ethnic Affairs vs. Tech.
• Nilabati Behera v. State of Orissa (1993 (2) SCC 746): an ICCPR provision supported compensation as a public law remedy under Article 32 (Verma, C.J.I.).
• Instruments referred to (Verma, C.J.I.):
  • The Convention on the Elimination of All Forms of Discrimination against Women, Articles 11 and 24, and general recommendations 22 to 24.
  • The Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region.
  • The ICCPR.
  • India's commitments at the Fourth World Conference on Women in Beijing.
• Names as spelt in the source text: Vishaka & Ors v. State Of Rajasthan & Ors (the title of this case) and Immigration and Ethnic Affairs v. Tech. (the source's spelling for the Teoh case).

Provisions mentioned

• Articles 14, 15, 19(1)(g) and 21, Constitution: equality, non-discrimination, the right to practise an occupation, and life and liberty, including life with dignity.
• Article 15(1) and (3): no discrimination on grounds only of sex, and special provision for women and children.
• Article 32: the remedy for enforcing fundamental rights.
• Article 42: just and humane conditions of work and maternity relief.
• Articles 51(c) and 51A(a) and (e): respect for international law and treaty obligations; the fundamental duties, including renouncing practices derogatory to the dignity of women.
• Articles 73, 141 and 253, and Entry 14 of List I, Seventh Schedule: the Union's executive power; the guidelines are treated as the law declared by the Court under Article 141; Parliament's power to implement treaties.
• Section 2(d), Protection of Human Rights Act, 1993: the definition of human rights, to which the guidelines have regard.
• Industrial Employment (Standing Orders) Act, 1946: private employers must include the prohibitions in standing orders.
• Indian Penal Code: where the conduct is a specific offence, the employer must complain to the authority.

Judgement

1. The Court lays down the guidelines and norms for due observance at all work places and other institutions, until a legislation is enacted (Verma, C.J.I.).
2. The employer or other responsible person must prevent or deter sexual harassment and provide procedures for resolution, settlement or prosecution (Guideline 1) (Verma, C.J.I.).
3. Sexual harassment is defined as in Guideline 2, and employers must take the preventive steps in Guideline 3 (Verma, C.J.I.).
4. Employers must initiate criminal and disciplinary action where warranted, and create a complaint mechanism with a Complaints Committee headed by a woman with at least half women members and a third-party member (Guidelines 4 to 7) (Verma, C.J.I.).
5. Employers must allow workers to raise the issue, create awareness, and support persons affected by acts of third parties (Guidelines 8 to 10) (Verma, C.J.I.).
6. Victims must be able to seek transfer of the perpetrator or their own transfer, and complaints must be treated in a time-bound way (Guidelines 4 and 6) (Verma, C.J.I.).
7. The Central and State Governments are requested to consider adopting measures, including legislation, for the private sector (Guideline 11) (Verma, C.J.I.).
8. The guidelines do not prejudice rights under the Protection of Human Rights Act, 1993 (Guideline 12) (Verma, C.J.I.).
9. The guidelines and norms must be strictly observed in all work places. They are binding and enforceable in law until suitable legislation is enacted. The writ petitions are disposed of (Verma, C.J.I.).
10. The judgment records no order on costs.

Legal Principle / Ratio

Sexual harassment of a working woman violates her fundamental rights under Articles 14, 15, 19(1)(g) and 21. Where there is no domestic law and no inconsistency, international conventions and norms are read into those rights. The Court may then lay down guidelines under Article 32. In the Court's words, "These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field".

Critical Analysis

Analysis based on the judgment text.

The guidelines rest on a legislative vacuum and end with legislation. The Court says the primary responsibility for safety and dignity lies with the legislature and the executive. It acts because no law occupies the field, and it says the directions bind only until suitable legislation is enacted.

The Union's consent shapes the guidelines. The judgment records that the guidelines were formulated as hearings progressed and that the Union consented through the Solicitor General. It does not say what the Court would have done without that consent.

The guidelines reach the private sector only through a request. Guideline 3 covers public and private employers, and the closing direction applies to all work places. Guideline 11 only requests governments to consider measures for the private sector, so the judgment leaves the private-sector route partly to legislation.

Significance

• The Court declared sexual harassment at work a violation of the rights to gender equality and to life and liberty.
• It read international conventions, especially CEDAW, into the fundamental rights in the absence of domestic law.
• It laid down detailed guidelines, including a definition of sexual harassment and a Complaints Committee headed by a woman.
• It said the guidelines are the law declared by the Court under Article 141 and are binding until legislation.
• It treated the compensation remedy under Article 32 in Nilabati Behera as support for using international norms.

Exam-Important Points

• Facts in one line: after an alleged gang rape of a Rajasthan social worker, a class action under Article 32 sought protection of working women from sexual harassment.
• Rule: sexual harassment violates Articles 14, 15, 19(1)(g) and 21. International conventions not inconsistent with fundamental rights are read into them.
• Guidelines: definition in Guideline 2; preventive steps in Guideline 3; Complaints Committee in Guideline 7, headed by a woman, at least half women, with a third-party member.
• Trap: the guidelines are binding as the law declared under Article 141, but only until suitable legislation is enacted.
• Trap: the guidelines were formulated with the Union's consent, and Guideline 11 only requests measures for the private sector.
• International sources: CEDAW Articles 11 and 24; the Beijing Statement; Article 51(c) and Article 253 with Entry 14 of the Union List.
• Costs: no order recorded.

Prepared from the full text of the judgment. Paragraph numbers follow the official Supreme Court judgment text; law reports may number the same paragraph differently.