Vishakha & Ors. Vs. STATE OF RAJASTHAN & ORS.

(Sexual harassment of working woman)

Citations: 1997 Supp.(3) SCR 404; 1997(6) SCC 241: 1997(7) JT 384; 1997(5) Scale 453; AIR 1997 SC 3011: 1997(7) Supreme 323; 1997(3) Crimes 188(SC): 1997 Labic 2890; 1998(2) LLN 965; 1997(77) FLR 297.

Coram: J.S.Verma, C.J., Sujata V.Manohar and B.N.Kirpal, JJ.

HIGHLIGHTS

Constitution of India, Arts. 14,15,19 & 21,51(1),(3),42.51-A(a).(e) & 32 & 141- Fundamental rights Working women Gender equality Rights of working women against sexual harassment in work place Held, such Incidents result in violation of gender equality' as also right to life and liberty Also as a logical consequence amounts to violation of right to practice any profession or to carry out occupation or trade or business - Victim is, therefore, entitled to remedy of Art.32.

Also held, they have rights to gender equality, to work with dignity and to a working environment safe and protected from sexual harassment or abuse In absence of suitable legislation in this sphere, International conventions and norms, so far as they are consistent with the constitutional spirit, can be relied on Accordingly, these guidelines and norms must be strictly observed in all working places by treating them as law declared by Supreme Court under Art. 141 of the Constitution.

Arts.51(c) & 253 Power of Parliament to enact laws - Absence of domestic law occupying the field International conventions and norms. consistent with the spirit of fundamental rights can be read into those rights for interpreting them in the larger context to promote the objects of the Constitution - In the absence of domestic law, on the particular aspect, these conventions and norms as ratified by India, can be relied on by the supreme Court to formulate guidelines for enforcement of fundamental rights Parliament has the power to enact laws for implementing the International conventions and norms.

Absence of legislation Legislation by Judiciary Judicial activism - Analogy of Art.73 Arts. 32.141 Supreme Court has power to lay down guidelines and norms for due observance in work places or institutions, until a legislation is enacted and such norms would be treated as law Power of Supreme Court under Art.32 and executive power of the Union to protect and enforce the fundamental rights and meet the social evil threatening these rights.

BRIEF FACTS

The present writ petition was filed for the enforcement of the fundamental rights of working women under Articles 14, 19 and 21. It was brought as a class action by certain social activists and NGOs with the aim of assisting in finding suitable) methods for realisation of the true concept "gender der equality and to prevent sexual harassment of working women of in all workplaces through judicial process and to fill the vacuum in existing legislation. The immediate cause for the filing of the writ petition was an incident of alleged brutal gang rape of a social worker in a; village of Rajasthan. The notice of the petition was given to the State of Rajasthan and the Union of India. The Solicitor General who appeared for Union of India and other counsel who appeared before the Supreme Court rendered needed assistance to the Court to deal with the matter. Disposing of the writ petition.

QUESTION OR CAUSE FOR FILING THIS WRIT PETITION

The cause for filing this writ petition is an incident of alleged brutal gang rape of a social worker in a village of Rajasthan. That incident is the subject-matter of a separate criminal action. 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.

RATIO/REASONING

Each incident of sexual harassment of woman at workplace results in violation of the fundamental rights of "Gender Equality" and the "Right to Life and Liberal". It is a clear violation of the rights under Articles 14. 15 and 21 of the 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). The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse.

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. 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 workplaces, 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 and for the formulation of guidelines to achieve this purpose. 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 516 and the enabling power of 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.

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 situation, 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 for 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 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. By virtue of Article 73 the executive power of the Union is available till Parliament enacts legislation to expressly provide measures needed to curb the evil.

Thus the power of the Supreme 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 to make their fundamental rights meaningful. Governance of the society by the rule of law mandates this requirement as a logical concomitant of the constitutional scheme. The obligation of the Supreme Court under Article 32 for the enforcement of the fundamental lights 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 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.

Some provisions in the "Convention on the Elimination of All Forms of Discrimination against Women" (Articles 11 and 24) as also the general recommendations of CEDAW in this context (Articles 11. 22. 23. 24), as ratified the Resolution on 25-6-1993 with some reservations which are not material in the present context, are of significance. At the Fourth World Conference on Women in Beijing, the Government of India has also made an official commitment, inter alia, to formulate and operationalize a any other unwelcome physical, verbal or non-verbal conduct of sexual nature where any of these acts is committed in circumstances whereunder 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 cany 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 workplace 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 workplace 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 workplaces and no woman employee 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 seck transfer of the perpetrator or their own transfer.

5. Disciplinary action

Where such conduct amounts to misconduct 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 oilier support service, including the maintenance of confidentiality.

The Complaints Committee should be headed by a woman and not less than half of its members should be women. Further, to prevent the possibility of any undue 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 a suitable manner.

10. Third-party harassment

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 step: 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 and rights available under the Protection of Hüman Rights Act, 1993.

These directions would be binding and enforceable in law until suttable legislation is enacted to occupy the field.

CONCLUSION

Accordingly, we direct that the above guidelines and norms would be strictly observed in all work places for the prohibition 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.

DECISION

Writ petitions are disposed of, accordingly.

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