Vishaka and Ors. vs State of Rajasthan and Ors.
- ByPravleen Kaur --
- 03 May 2025 --
- 0 Comments
I. Introduction
This writ petition was filed for the enforcement of fundamental rights of working women under Articles 14, 19, and 21 of the Constitution of India. It aimed to address the societal issue of sexual harassment of working women at workplaces and to find suitable methods to realize the concept of 'gender equality'. The immediate cause for filing the petition was an incident of alleged brutal gang rape of a social worker in a village in Rajasthan. [Paragraph 1]
II. Violation of Fundamental Rights
The Supreme Court held that each incident of sexual harassment of working women results in the violation of fundamental rights of 'Gender Equality' and the 'Right to Life and Liberty' under Articles 14, 15, and 21 of the Constitution. It also violates the victim's fundamental right under Article 19(1)(g) 'to practice any profession or to carry on any occupation, trade or business'. [Paragraph 1]
III. International Conventions and Norms
In the absence of domestic law occupying the field, the Court took note of the significance of International Conventions and norms for the purpose of interpreting the guarantee of gender equality, the right to work with human dignity enshrined in Articles 14, 15, 19(1)(g), and 21 of the Constitution, and the safeguards against sexual harassment implicit therein. This is implicit from Article 51(c) and the 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 the Seventh Schedule of the Constitution. [Paragraph 2]
IV. Role of the Judiciary
The Court recognized its power under Article 32 for the enforcement of fundamental rights and the executive power of the Union to meet the challenge of protecting working women from sexual harassment and making their fundamental rights meaningful. The Court emphasized that governance by the rule of law mandates this requirement as a logical concomitant of the Constitutional scheme. [Paragraph 3]
The Court also referred to the Beijing Statement of Principles of the Independence of the Judiciary, which mentions the objectives of the judiciary, including ensuring that all persons can live securely under the Rule of Law, promoting the observance and attainment of human rights, and administering the law impartially. [Paragraph 3]
V. Gender Equality and International Conventions
The Court stated that gender equality includes protection from sexual harassment and the right to work with dignity, which is a universally recognized basic human right. The International Conventions and norms are of great significance in formulating guidelines to achieve this purpose. [Paragraph 4]
The Court referred to relevant provisions of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and its general recommendations regarding violence and equality in employment, sexual harassment, and the duty of States to take measures to protect women from sexual harassment and other forms of violence or coercion in the workplace. [Paragraph 4]
VI. Interpretation of Fundamental Rights
The Court held that the meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all facets of gender equality, including the prevention of sexual harassment or abuse. The Court stated that international conventions and norms should be read into the fundamental rights in the absence of enacted domestic law occupying the field, as long as there is no inconsistency between them. [Paragraph 5]
The Court referred to the case of Minister for Immigration and Ethnic Affairs v. Teoh, where the High Court of Australia recognized the concept of legitimate expectation of observance of international conventions in the absence of a contrary legislative provision. The Court also cited the case of Nilabati Behera v. State of Orissa, where a provision in the ICCPR was referred to support the view 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. [Paragraph 5]
VII. Guidelines and Norms
In the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment at workplaces, the Court laid down guidelines and norms to be observed at all workplaces or other institutions until legislation is enacted for this purpose. These guidelines were formulated in exercise of the power available under Article 32 of the Constitution for the enforcement of fundamental rights and would be treated as the law declared by the Supreme Court under Article 141 of the Constitution. [Paragraph 6]
The guidelines cover various aspects, including:
1. Duty of the employer or responsible persons to prevent or deter sexual harassment and provide procedures for resolution, settlement, or prosecution of such acts. [Paragraph 1]
2. Definition of sexual harassment, including physical contact, advances, demands for sexual favors, sexually colored remarks, showing pornography, and other unwelcome physical, verbal, or non-verbal conduct of a sexual nature. [Paragraph 2]
3. Preventive steps to be taken by employers, such as express prohibition of sexual harassment, inclusion of rules and regulations prohibiting sexual harassment, provision of appropriate work conditions, and ensuring a non-hostile environment for women. [Paragraph 3]
4. Initiation of criminal proceedings and protection of victims or witnesses from victimization or discrimination. [Paragraph 4]
5. Disciplinary action in cases of misconduct in employment. [Paragraph 5]
6. Establishment of a complaint mechanism for redress of complaints made by victims, ensuring time-bound treatment of complaints. [Paragraph 6]
7. Constitution of a Complaints Committee, headed by a woman and with at least half of its members being women, involving a third party (NGO or other body) familiar with the issue of sexual harassment. [Paragraph 7]
8. Allowing employees to raise issues of sexual harassment at workers' meetings and in other appropriate forums. [Paragraph 8]
9. Awareness creation about the rights of female employees and prominently notifying the guidelines. [Paragraph 9]
10. Taking necessary and reasonable steps to assist the affected person in cases of sexual harassment by third parties or outsiders. [Paragraph 10]
11. Request to Central/State Governments to consider adopting suitable measures, including legislation, to ensure that the guidelines are observed by employers in the private sector. [Paragraph 11]
12. Clarification that these guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993. [Paragraph 12]
The Court directed that these guidelines and norms would be strictly observed in all workplaces for the preservation and enforcement of the right to gender equality of working women, and these directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field. [Concluding Paragraph]
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