Supreme Court Of India
JUDGEMENT INFORMATION SYSTEM
 

PETITIONER:
VISHAKA & ORS.

	Vs.

RESPONDENT:
STATE OF RAJASTHAN & ORS.

DATE OF JUDGMENT:	13/08/1997

BENCH:
CJI, SUJATA V. MANOHAR, B. N. KIRPAL




ACT:



HEADNOTE:



JUDGMENT:
		      J U D G M E N T
Verma, CJI:
     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.





    

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