Vishaka
& Ors Vs. State of Rajasthan & Ors [1997] INSC 665 (13 August 1997)
CJI,
SUJATA V. MANOHAR, B. N. KIRPAL
ACT:
HEADNOTE:
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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