Vishaka and Others v. State of Rajasthan and Others

Case Citation and Basic Information 

Case Name: Vishaka and Others v. State of Rajasthan and Others 

Citation: AIR 1997 SC 3011; (1997) 6 SCC 241 

Court: Supreme Court of India 

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

Date of Judgment: 13 August 1997 

Introduction 

The case of Vishaka v. State of Rajasthan is one of the leading judgments of the Supreme Court  of India. This judgment declared sexual harassment at the workplace, in the absence of a legal  framework then available in the country, a violation of the constitutional guarantees under  Articles 14 and 21 of the Constitution of India (i.e. Right to equality and right to a dignified  life). For the first time in the history of Indian jurisprudence, an executive guideline is laid  down by the highest Court in exercise of its powers under Article 32. The said executive  guideline, known as the “Vishaka Guidelines” relies heavily on India’s obligations under  various international conventions and thereby fills the void in domestic legislation. 

Facts of the Case 

The case was a consequence of the infamous gang rape of Bhanwari Devi (sathin – social  worker working in a programme of rural development in Rajasthan). She tried to stop the  marriage of a child while performing her official duty as an employee. Consequently, the  village people including her husband were involved in ganging rape her in 1992 in protest  against his step for prevention of such a marriage.  

The matter resulted in an acquittal of the case by the trial court. It then caused a nation-wide  furore for want of any machinery against prevention of sexual harassment to an employee in  performing his/ her work. As such, the other women organisations/ social workers headed by  one Vishaka filed a writ petition in Supreme court of India as a Public Interest Litigation (PIL)  u/a 32 of the Constitution seeking guidance on the prevention and sexual harassment to woman  employees and a direction from court for issuing guidelines pending appropriate legislation to enforce the right of every woman and right to work with dignity and equal opportunity to work  on equal pay. The petitioner argued that while there was no proper legislation for the redressal  of the complaint pertaining to any Sexual Harassment at workplace or of any such nature by  an employer at workplace; yet same could be provided by the court by judicial guidelines till  proper legislation is enacted. 

Legal Issues 

Issue 1: Whether sexual harassment of women at the workplace is an infringement of the  constitutional provisions guaranteeing fundamental rights under Articles 14,15,19(1)(g) and 21  of the Constitution of India?  

Issue 2: Whether, the Supreme Court can provide a code of conduct on prevention and redressal  of sexual harassment in the absence of enacting a legislation in relation to the above said  subject? 

Issue 3: Whether, International covenants and norms which have been duly ratified and signed  by India can be given effect to by the Indian courts and can be used to interpret and add  substance to the Fundamental rights guaranteed under the Constitution, if there is no  inconsistent Indian law? 

Argument Presented 

Petitioners’ Arguments 

The petitioners claimed that sexual harassment at the workplace violated a working woman’s  constitutional rights under Articles 14 (equality before the law), 15 (prohibition of  discrimination on the ground of sex), 19(1)(g) (right to practise any profession or carry on any  occupation), and 21 (right to life and personal liberty, construed to include right to human  dignity and right to safe working place). It was asserted that the current criminal law including  the provisions of IPC in regard to offences relating to outraging of modesty, etc. Were  insufficient, as they covered only specific forms of physical harassment and did not contain  civil or preventive mechanisms which were required in respect of working women and  workplace harassment. The arguments on international conventions particularly to CEDAW  and other international instruments were heavily relied upon as, in absence of any law against  sexual harassment at the workplace, it was claimed that the provisions therein must be read  into the promise of equality under the constitution, based on Articles 51(c) and 253 for purpose  of Parliamentary law and due International Law compliance.

Respondents’ Arguments 

The State of Rajasthan and the Union of India, while not challenging the object to protect  working women, wondered if it was appropriate for the judiciary to provide detailed  instructions to employer, without any law to guide them on how they must regulate the working  conditions under the doctrine of separation of powers. The Court was informed that a Code of  conduct in relation to a workplace was well within the powers of Parliament to enact, that the  scope of powers of the Court under Art 32 was merely to enforce the pre-existing fundamental  rights and not to add to them the kind of substantive obligations, such as can form the subject  of a piece of legislation. However, the Union of India broadly accepted the need for such  protective regime and aided the Court in formulating some practical code to regulate the  employer, especially, since no law existed in that regard. 

Courts’ Reasoning and Analysis 

The Court through Chief Justice J.S. Verma initially ruled that the fundamental rights provided  under Art.14, 19 & 21 of the Constitution shall include the right to be free from sexual  harassment at the workplace, as sexual harassment affects the dignity of the victim and by  rendering the work place not conducive, infracts upon the fundamental right to practice any  profession/occupation under Art.19(1)(g). The reasoning behind this was that a right at  workplace with human dignity was implicit in the constitutional scheme and due to lack of  safety, this right for the women folk became illusory. 

In absence of domestic legislation, the Court utilized Art. 32 not just as a tool to alleviate  individual grievances, but also as a source for issuing necessary guidelines to enforce the  fundamental rights in absence of any statutory or legislated provision in the nature of law.  Placing reliance on Art.51(c), which mandates for promotion of respect for international law  and treaty obligations, and Art.253 enabling Parliament to pass law in compliance of  international agreements, Court held that international conventions complying with  fundamental rights and not repugnant to existing law, could beread into the ambit of the above  mentioned rights to extent and further it scope and in this regard expressly took note of  CEDAW and its General Recommendations of the CEDAW committee, and Beijing Statement  of principles in so far as judicial independence was concerned. 

The bench relied on its jurisprudence about the authority of the judiciary to frame binding  guidelines and effective remedies where such relief could not be granted in absence of  legislation/executive policy, in earlier public interest litigations (PILs) in the field of environmental law, custodial rights etc. Applying this philosophy in hand, the court found a  “huge gap” to provide for adequate preventive and redressal mechanisms for incidents of  workplace sexual harassment in law, and in order to enforce fundamental rights the guidelines  framed by it would have to fill in this “gap”, and will be binding on employers, be they public  or private sector undertakings, by virtue of Art. 141 until appropriate legislation is made. 

The judges concurred unanimously. There were no dissenting or separate concurring opinions.  The judgment was a singular pronouncement of the Court as there was unanimity in thought. 

Judgement and Ratio Decidendi 

The Decision 

The Supreme Court allowed the petition and gave what we call now the Vishaka Guidelines,  and these guidelines are deemed as the law declared under Art 141 of the Constitution which  is binding for all. Even for the private sector until laws were framed. These guidelines stated  some of the things that will be looked upon as sex harassment – including, all forms of  unwelcome sexual behaviour either explicitly or by implication, Employer have the obligation  to prevent sexual harassment and frame procedures to redress it and in every office, A  Committee of sexual harassment shall be formed that would include a woman as the head, not  less than ½ women members, should also contain a nominee of an outside, either  governmental/non-governmental Organisation for not to being under influence or intimidation;  that complaint mechanism shall ensure timely resolution of complaint and should be treated  confidential. Employers were also instructed that; work environment should provide adequate  health/ hygiene and recreation facilities so that work environments don’t turn towards anti  female-ity or the opposite sex. And work places should prominently circulate these guidelines  so that male and female Employees are conscious of respective rights. 

Ratio Decidendi 

The ratio decidendi of Vishaka is that sexual harassment of women at the workplace is a  violation of the fundamental rights to equality, non-discrimination and a dignified life and  livelihood under Articles 14, 15, 19(1)(g), and 21 of the Constitution and in the absence of  domestic legislation, the judiciary may under Article 32 formulate binding guidelines drawing  upon international conventions consistent with these rights, to be enforced as law until  Parliament legislates on the subject.

Critical Analysis 

Significance of the Decision 

Vishaka is a prime example of the Indian judiciary stepping in to fill a legislative void, not thru  recommendations but thru binding guidelines, exercising its remedial powers in a significant  way. The judgment was one of the first in India to apply an international human rights  convention, CEDAW, directly to the interpretation of domestic fundamental rights, thus  bringing Indian constitutional jurisprudence to the international standard on equality between  genders, even before Parliament did so. 

Implications and Impact 

The judgment had an instant and significant practical effect: for over sixteen years, Vishaka  Guidelines were the only binding legal framework for workplace sexual harassment in India,  mandating both public and private employers to set up internal complaint’s mechanisms. The  guidelines were used and improved in later judgments, including in Apparel Export Promotion  Council v. A.K. Chopra (1999), and eventually set the direct template for the Sexual  Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013,  showing the lasting effect of the guidelines on law-making. 

Critical Evaluation 

The Court’s willingness to set down detailed, code-like guidelines has been praised as a  necessary and creative response to legislative inertia, but has also been criticized for pushing  the constitutional separation of powers by involving the judiciary in an essentially legislative  function. It has also been criticized that the guidelines were framed by the judiciary and had no  penal consequences under the statute for non-compliance initially and were heavily dependent  on the goodwill of the employers for its effective implementation. The 2013 Act has only partly  filled this gap. But considering the complete absence of any other protective mechanism at that  time and the constitutional mandate under Article 32 to seek enforcement of fundamental  rights, the approach of the Court can be justified as a proportionate and temporary measure,  clearly intended to give way to future legislation. 

Conclusion 

Vishaka v. State of Rajasthan was a landmark judgment that helped protect the rights of  working women. The case established that the right to work free from sexual harassment is a fundamental right. The most important aspect of this case was that it showed how the Indian  judiciary can enrich its resources by using international human rights laws to add substance to  the fundamental rights enshrined in the Constitution. The Vishaka guidelines were in place for  more than a decade before they were replaced by the 2013 law. The case is still relevant today  as it illustrates how the court used purposive interpretation of the Constitution and made  remedial laws despite ongoing debates over the extent to which such measures should be taken. 

Reference(S): 

Vishaka v. State of Rajasthan, AIR 1997 SC 3011. 

Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759. 

Constitution of India, 1950, arts. 14, 15, 19(1)(g), 21, 32, 51(c), 141, 253. 

Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979,  1249 U.N.T.S. 13. 

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, No.  14 of 2013 (India).