IN THE SUPREME COURT OF INDIA
Chief Justice J.S.Verma , Justice Mrs. Sujatha .V. Manohar & Justice. B.N.Kirpal
Vishaka
& Ors. v. State Of Rajasthan & Ors.
.Reported in AIR 1997 SC 3011= 1997(6) SCC 241 = 1997(7) JT 384 = 1997(5)
SCALE 453.
Judgment:
This Writ Petition has been filed for the enforcement of the fundamental
rights of working women under Articles 14, 19 and 21 of the Constitution of
India in view of the prevailing climate in which the violation of these rights
is not uncommon. With the increasing awareness and emphasis on gender justice,
there is increase in the effort to guard such violations; and the resentment
towards incidents of sexual harassment is also increasing. The present
petition has been brought as a class action by certain social activists and
NGOs with the aim of focussing attention towards this societal aberration, and
assisting in finding suitable methods for realisation of the true concept of
'gender equality'; and to prevent sexual harassment of working women in all
work places through judicial process, to fill the vacuum in existing
legislation.
The immediate cause for the filing of this writ petition is an incident of
alleged brutal gang rape of social worker in a village of Rajasthan. That
incident is the subject matter of a separate criminal action and no further
mention of it, by us, is necessary. The incident reveals the hazards to which
a working woman may be exposed and the depravity to which sexual harassment
can degenerate; and the urgency for safeguards by an alternative mechanism in
the absence of legislative measures. In the absence of legislative measures,
the need is to find an effective alternative mechanism to fulfil this felt and
urgent social need.
Each such incident results in violation of the fundamental rights of 'Gender
Equality' and the 'Right of Life and Liberty'. It is clear violation of the
rights under Articles 14, 15 and 21 of Constitution. One of the logical
consequences of such an incident is also the violation of the victim's
fundamental right under Article 19(1)(g) 'to practice any profession or to
carry out any occupation, trade or business'. Such violations, therefore,
attract the remedy under Article 32 for the enforcement of these fundamental
rights of women. This class action under Article 32 of the Constitution is for
this reason. A writ of mandamus in such a siltation, if it is to be effective,
needs to be accompanied by directions for prevention; as the violation of
fundamental rights of this kind is a recurring phenomenon. The fundamental
right to carry on any occupation, trade or profession depends on the
availability of a "safe" working environment. Right to life means life with
dignity. The primary responsibility fro ensuring such safety and dignity
through suitable legislation, and the creation of a mechanism for its
enforcement, is of the legislature and the executive. When, however, instances
of sexual harassment resulting in violation of fundamental rights of women
workers under Articles 14, 19 and 21 are brought before us for redress under
Article 32, an effective redressal requires that some guidelines should be
laid down for the protection of these rights to fill the legislative vacuum.
The notice of the petition was given to the State of Rajasthan and the Union
of India. The learned Solicitor General appeared for the Union of India and
rendered valuable assistance in the true spirit of a Law Officer to help us
find a proper solution to this social problem of considerable magnitude. In
addition to Ms. Meenakshi Arora and Ms. Naina Kapur who assisted the Court
with full commitment, Shri Fali S. Nariman appeared as Amicus Curiae and
rendered great assistance. We place on record our great appreciation for every
counsel who appeared in the case and rendered the needed assistance to the
Court which has enabled us to deal with this unusual matter in the manner
considered appropriate for a cause of this nature.
Apart from Article 32 of the Constitution of India, we may refer to some other
provision which envisage judicial intervention for eradication of this social
evil. Some provisions in the Constitution in addition to Articles 14, 19(1)(g)
and 21, which have relevance are Article 15
"15. Prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth.-
(1) The State shall not discriminate against any citizen on only of religion,
race, caste, sex, place of birth or any of them.
(2) xxx xxxx xxxx
(3) Nothing in this article shall prevent the State from making any special
provision for women and children.
(4) xxxx xxxx xxxx"
Article 42 "42. Provision for just and humane conditions of work and maternity
relief - The State shall make provision for securing just and humane
conditions of work and for maternity relief."
Article 51A
"51A. Fundamental duties. - It shall be the duty of every citizen of India, -
(a) to abide by the Constitution and respect its ideals and institutions, ...
xxxx xxxx xxxx
(e) to promote harmony and the spirit of common brotherhood amongst all the
people of India transcending religious, linguistic and regional or sectional
diversities; to renounce practices derogatory to the dignity of women;
xxx xxxx xxxx"
Before we refer to the international conventions and norms having relevance in
this field and the manner in which they assume significance in application and
judicial interpretation, we may advert to some other provisions in the
Constitution which permit such use. These provisions are
Article 51 "51. Promotion of international peace and security - The State
shall endeavour to -
xxxx xxxx xxxx
(c) foster respect for international law and treaty obligations in the
dealings of organised people with one another; and
xxx xxx xxx"
Article 253 "253. Legislation for giving effect to international agreements -
Notwithstanding anything in the foregoing provisions of this Chapter,
Parliament has power to make any law for the whole or any part of the
territory of India for implementing any treaty, agreement or convention with
any other country or countries or any decision made at any international
conference, association or other body."
Seventh Schedule "List I - Union List
xxxx xxxx xxxx
14. Entering into treaties and agreements with foreign countries and
implementing of treaties, agreements and conventions with foreign countries.
xxx xxx xxx"
In the absence of domestic law occupying the field, to formulate effective
measures to check the evil of sexual harassment of working women at all work
places, the contents of International Conventions and norms are significant
for the purpose of interpretation of the guarantee of gender equality, right
to work with human dignity in Articles 14, 15 19(1)(g) and 21 of the
Constitution and the safeguards against sexual harassment implicit therein.
Any International Convention not inconsistent with the fundamental rights and
in harmony with its spirit must be read into these provisions to enlarge the
meaning and content thereof, to promote the object of the constitutional
guarantee. This is implicit from Article 51(c) and enabling power of the
Parliament to enact laws for implementing the International Conventions and
norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh
Schedule of the Constitution. Article 73 also is relevant. It provides that
the executive power of the Union shall extend to the matters with respect to
which Parliament has power to make laws. The executive power of the Union is,
therefore, available till the parliament enacts to expressly provide measures
needed to curb the evil.
Thus, the power of this Court under Article 32 for enforcement of the
fundamental rights and the executive power of the Union have to meet the
challenge to protect the working women from sexual harassment and o make their
fundamental rights meaningful. Governance of the society by the rule of law
mandates this requirements as a logical concomitant of the constitutional
scheme. The exercise performed by the Court in this matter is with this common
perception shared with the learned Solicitor General and other members of the
Bar who rendered valuable assistance in the performance of this difficult task
in public interest.
The progress made at each hearing culminated in the formulation of guidelines
to which the Union of India gave its consent through the learned Solicitor
General, indicating that these should be the guidelines and norms declared by
this Court to govern the behaviour of the employers and all others at the work
places to curb this social evil.
Gender equality includes protection from sexual harassment and right to work
with dignity, which is a universally recognised basic human right. The common
minimum requirement of this right has received global acceptance.
The International Conventions and norms are, therefore, of great significance
in the formulation of the guidelines to achieve this purpose.
The obligation of this Court under Article 32 of the Constitution for the
enforcement of these fundamental rights in the absence of legislation must be
viewed along with the role of judiciary envisaged in the Beijing Statement of
Principles of the Independence of the Judiciary in the LAWASIA region. These
principles were accepted by the Chief Justices of the Asia and the Pacific at
Beijing in 1995 as those representing the minimum standards necessary to be
observed in order to maintain the independence and effective functioning of
the judiciary. The objectives of the judiciary mentioned in the Beijing
Statement are "Objectives of the Judiciary 10. The objectives and functions of
the Judiciary include the following
(a) to ensure that all persons are able to live securely under the Rule of
Law;
(b) to promote, within the proper limits of the judicial function, the
observance and the attainment of human rights; and (c) to administer the law
impartially among persons and between persons and the State."
Some provisions in the 'Convention on the Elimination of All Forms of
Discrimination against Women', of significance in the present context are
Article 11
"1. States Parties shall take all appropriate measures to eliminate
discrimination against women in the field of employment in order to ensure, on
basis of equality of men and women, the same rights, in particular
(a) The right to work as an inalienable right of all human beings;
xxxx xxxxx xxxx
(f) The right to protection of health and to safety in working conditions,
including the safeguarding of the function of reproduction.
xxx xxxxx xxxxx
Article 24 "States Parties undertake to adopt all necessary measures at the
national level aimed at achieving the full realization of the rights
recognised in the present Convention."
The general recommendations of CEDAW in this context in respect of Article 11
are "Violence and equality in employment
22. Equality in employment can be seriously impaired when women are subjected
to gender specific violence, such as sexual harassment in the work place.
23. Sexual harassment includes such unwelcome sexually determined behavior
as physical contacts and advance, sexually coloured remarks, showing
pornography and sexual demands, whether by words or actions. Such conduct can
be humiliating and may constitute a health and safety problem; it is
discriminatory when the woman has reasonable grounds to believe that her
objection would disadvantage her in connection with her employment, including
recruiting or promotion, or when it creates a hostile working environment.
Effective complaints procedures and remedies, including compensation, should
be provided.
24. States should include in their reports information about sexual
harassment, and on measures to protect women from sexual harassment and other
forms of violence of coercion in the work place."
The Government of India has ratified the above Resolution on June 25, 1993
with some reservations which are not material in the present context. At the
Fourth World Conference on Women in Beijing, the Government of India has also
made a official commitment, inter alia, to formulate and operationalize a
national policy on women which will continuously guide and inform action at
every level and in every sector; to set up a Commission for Women's Rights to
act as a public defender of women's human rights; to institutionalise a
national level mechanism to monitor the implementation of the Platform for
Action. We have, therefore, no hesitation in placing reliance on the above for
the purpose of construing the nature and ambit of constitutional guarantee of
gender equality in our Constitution.
The meaning and content of the fundamental rights guaranteed in the
Constitution of India are of sufficient amplitude to compass all the facets of
gender equality including prevention of sexual harassment or abuse.
Independence of Judiciary forms a part of our constitutional scheme. The
international conventions and norms are to be read into them in the absence of
enacted domestic law occupying the fields when there is no inconsistency
between them. It is now an accepted rule of judicial construction that regard
must be had to international conventions and norms fro construing domestic law
when there is no inconsistency between them and there is a void in the
domestic law. The High Court of Australia in Minister fro Immigration and
Ethnic Affairs vs. Tech. 128 ALR 535, has recognised the concept of legitimate
expectation of its observance in the absence of contrary legislative
provision, even in the absence of a Bill of Rights in the Constitution of
Australia.
In Nilabati Behera vs. State of Orissa 1993(2) SCC 746, a provision in the
ICCPR was referred to support the view taken that an enforceable right to
compensation is not alien to the concept of enforcement of a guaranteed
right', as a public law remedy under Article 32, distinct from the private law
remedy in torts. There is no reason why these international conventions and
norms cannot, therefore, be used for construing the fundamental rights
expressly guaranteed in the Constitution of India which embody the basic
concept of gender equality in all spheres of human activity.
In view of the above, and the absence of enacted law to provide fro the
effective enforcement of the basic human right of gender equality and
guarantee against sexual harassment and abuse, more particularly against
sexual harassment at work places, we lay down the guidelines and norms
specified hereinafter for due observance at all work places or other
institutions, until a legislation is enacted for the purpose. This is done in
exercise of the power available under Article 32 of the Constitution for
enforcement of the fundamental rights and it is further emphasised that this
would be treated as the law declared by this Court under Article 141 of the
Constitution.
The GUIDELINES and NORMS prescribed herein are as under:-
HAVING REGARD to the definition of 'human rights' in Section 2(d) of the
Protection of Human Rights Act, 1993, TAKING NOTE of the fact that the present
civil and penal laws in India do not adequately provide for specific
protection of women from sexual harassment in work places and that enactment
of such legislation will take considerable time, It is necessary and expedient
for employers in work places as well as other responsible persons or
institutions to observe certain guidelines to ensure the prevention of sexual
harassment of women
1. Duty of the Employer or other responsible persons in work places and
other institutions
It shall be the duty of the employer or other responsible persons in work
places or other institutions to prevent or deter the commission of acts of
sexual harassment and to provide the procedures for the resolution, settlement
or prosecution of acts of sexual harassment by taking all steps required.
2. Definition 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 sexual nature.
Where any of these acts is committed in circumstances where under the victim
of such conduct has a reasonable apprehension that in relation to the victim's
employment or work whether she is drawing salary, or honorarium or voluntary,
whether in government, public or private enterprise such conduct can be
humiliating and may constitute a health and safety problem. It is
discriminatory for instance when the woman has reasonable grounds to believe
that her objection would disadvantage her in connection with her employment or
work including recruiting or promotion or when it creates a hostile work
environment.
Adverse consequences might be visited if the victim does not consent to the
conduct in question or raises any objection thereto.
3. Preventive Steps All employers or persons in charge of work place whether
in the public or private sector should take appropriate steps to prevent
sexual harassment. Without prejudice to the generality of this obligation they
should take the following steps
(a) Express prohibition of sexual harassment as defined above at the work
place 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 rules/regulations prohibiting sexual
harassment and provide for appropriate penalties in such rules against the
offender.
(c) As regards private employers steps should be taken to include the
aforesaid prohibitions in the standing orders under the Industrial Employment
(Standing Orders)
Act, 1946.
(d) Appropriate work conditions should be provided in respect of work,
leisure, health and hygiene to further ensure that there is no hostile
environment towards women at work places and no employee woman should have
reasonable grounds to believe that she is disadvantaged in connection with her
employment.
4. Criminal Proceedings Where such conduct amounts to a specific offence under
the Indian Penal Code or under any other law the employer shall initiate
appropriate action in accordance with law by making a complaint with the
appropriate authority.
In particular, it should ensure that victims, or witnesses are not victimized
or discriminated against while dealing with complaints of sexual harassment.
The victims of sexual harassment should have the option to seek transfer of
the perpetrator or their own transfer.
5. Disciplinary Action Where such conduct amounts to mis-conduct in employment
as defined by the relevant service rules, appropriate disciplinary action
should be initiated by the employer in accordance with those rules.
6. Complaint Mechanism Whether or not such conduct constitutes an offence
under law or a breach of the service rules, an appropriate complaint mechanism
should be created in the employer's organization for redress of the complaint
made by the victim. Such complaint mechanism should ensure time bound
treatment of complaints.
7. Complaints Committee The complaint mechanism, referred to in (6) above,
should be adequate to provide, where necessary, a Complaints Committee, a
special counsellor or other support service, including the maintenance of
confidentiality.
The Complaints Committee should be headed by a woman and not less than half of
its member should be women.
Further, to prevent the possibility of any under pressure or influence from
senior levels, such Complaints Committee should involve a third party, either
NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the government
department concerned of the complaints and action taken by them. The employers
and person in charge will also report on the compliance with the aforesaid
guidelines including on the reports of the Complaints Committee to the
Government department.
8. Workers' Initiative Employees should be allowed to raise issues of sexual
harassment at workers meeting and in other appropriate forum 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 (and
appropriate legislation when enacted on the subject) in suitable manner.
10. Where sexual harassment occurs as a result of an act or omission by any
third party or outsider, the employer and person in charge will take all steps
necessary and reasonable to assist the affected person in terms of support and
preventive action.
11. The Central/State Governments are requested to consider adopting suitable
measures including legislation to ensure that the guidelines laid down by this
order are also observed by the employers in Private Sector.
12. These guidelines will not prejudice any rights available under the
Protection of Human Rights Act, 1993.
Accordingly, we direct that the above guidelines and norms would be strictly
observed in all work places for the preservation and enforcement of the right
to gender equality of the working women. These directions would be binding and
enforceable in law until suitable legislation is enacted to occupy the field.
These Writ Petitions are disposed of, accordingly.