1997 Supreme(SC) 1094

1997(7) Supreme 323
SUPREME COURT OF INDIA
J.S. Verma, CJI., Sujata V. Manohar, B.N. Kirpal, JJ.
Vishaka & Ors. -Petitioners
versus
State of Rajasthan & Ors. -Respondents
Writ Petition (Crl.) Nos. 666-70 of 1992
Decided on 13-8-1997
Counsel for the Parties:
For the Petitioners, Mr. F.S. Nariman, Sr. Advocate, Ms. Meenakshi Arora, Ms. Niti Dixit, Advocates.
For the Respondents, Mr. T.R. Andhyarujina, Solicitor General, Mr. Mukul Mudgal, Ms. Suvira Lal, Mr. C.V.S. Rao, Mr. K.S. Bhati, Mr. M.K. Singh, Advocates.

VERY IMPORTANT POINT
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 and abuse of women at work places, the Supreme Court has laid down the guidelines and norms for due observance at all work places or other institutions until a legislation is enacted for the purpose.

Headnote:(i) Constitution of India-Arts. 14, 15, 19 and 21, 42, 51A-Working women-Fundamental rights of-Gender equality - Concept of-Meaning and content of-Right to work with human dignity-Protection from sexual harassment-Basic human rights-Formulation of guidelines to achieve this purpose-Absence of enacted law-Guidelines and norms specified for due observance at all work places or other institutions-This would be treated as law declared by this Court under Art. 141-Guidelines and norms would be strictly observed-These directions would be binding and enforceable in law until suitable legislation is enacted.

       Held : 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 women 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 of 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 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 of 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 worker s 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 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. (Para 14)

       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. (Para 10)

       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. (Para 12)

       (ii) Constitution of India-Art. 32-Writ Petition-Enforcement of fundamental rights of working women-Evil of sexual harassment of working women at work places-Absence of domestic law-Contents of International Conventions and norms are significant for interpretation of guarantee of gender equality-Executive power of Union-Powers and obligation of Court under Art. 32-Objectives of Judiciary-Convention on Elimination of All forms of Discrimination against Women-General recommendations of CEDAW-Beijing statement.

       Held : 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 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 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 legislation to expressly provide measures needed to curb the evil. (Para 7)

       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 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. (Para 8)

       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 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 an 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. (Para 11)

       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. (Para 13)

       (iii) INTERPRETATION OF STATUTES-Rule of judicial construction-Regard must be had to international conventions and norms for construing domestic law when constitution of India-Arts. 51, 253, Seventh Schedule, List I, entry 14.

       Held : 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 field when there is no inconsistency between them. It is now an accepted rule or judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law. (Para 12)

       (iv) WORKING WOMEN-Fundamental rights-Enforcement of-Guidelines and norms laid down by Court-These would be strictly observed in all work places-These directions would be binding and enforceable in law until suitable legislation enacted. (Paras 14 & 15)

       (v)INTERNATIONAL CONVEN-TIONS AND NORMS-To be read for construing domestic law when there is no inconsistency between them and there is void in domestic law. (Para 12)

       (vi) GENDER EQUALITY-Nature and ambit of constitutional guarantee of. (Paras 10, 11)

       (vii) Constitution of India-Art. 32-Enforcement of fundamental rights of working women-Sexual harassment-A writ of mandamus needs to be accompanied by directions for prevention. (Para 3)