Constitutional Law

Vishaka v. State of Rajasthan

AIR 1997 SC 3011; (1997) 6 SCC 241

Facts

The petition arose in the background of the alleged gang rape of Bhanwari Devi, a social worker in Rajasthan.
Bhanwari Devi had attempted to prevent a child marriage while performing her official duties.
The incident demonstrated the serious dangers faced by women performing work outside their homes.
Several social organisations and activists filed a public interest petition under Article 32.
The criminal proceedings concerning the individual incident were separate from the constitutional petition.
The petitioners sought effective protection for working women against sexual harassment at workplaces.
At that time, India had no specific legislation dealing comprehensively with:
prevention of workplace sexual harassment;
employer responsibility;
internal complaint mechanisms; or
remedies for affected women.
The petitioners argued that sexual harassment violated women’s rights under Articles 14, 15, 19(1)(g) and 21.
The Supreme Court therefore had to determine whether it could frame enforceable safeguards until Parliament enacted appropriate legislation.

Whether workplace sexual harassment violates fundamental rights.
Whether the absence of legislation prevented the Supreme Court from granting preventive relief.
Whether international conventions could be used to interpret fundamental rights.
What duties should be imposed upon employers and institutions.

Gender equality under Articles 14 and 15 includes protection against sexual harassment.
Article 19(1)(g) protects a woman’s ability to practise a profession or occupation in a safe environment.
Article 21 protects dignity, bodily integrity and conditions necessary for meaningful life.
International conventions may be used to interpret fundamental rights where:
domestic legislation does not occupy the field; and
the international norm is not inconsistent with constitutional or statutory law.
The Court relied especially upon the Convention on the Elimination of All Forms of Discrimination Against Women.
Directions issued by the Supreme Court for enforcing fundamental rights are binding under Article 141 until replaced by legislation.

The Court held that sexual harassment was not merely a private employment dispute.
It placed women at a disadvantage because of sex and prevented them from participating equally in professional life.
An unsafe workplace could force a woman:
to leave her employment;
to tolerate degrading conduct;
to refuse professional opportunities; or
to work under fear and humiliation.
This directly affected equality, livelihood and dignity.
The absence of a specific statute did not remove the Court’s obligation under Article 32 to enforce fundamental rights.
The Court therefore used constitutional guarantees, Directive Principles and CEDAW to fill the legislative vacuum.
It defined sexual harassment to include unwelcome:
physical contact or advances;
demands or requests for sexual favours;
sexually coloured remarks;
showing of pornography; and
other verbal, non-verbal or physical conduct of a sexual nature.
Employers were directed to prevent harassment and take disciplinary action where it occurred.
Every institution was required to create an appropriate complaint mechanism.
A complaints committee had to:
be headed by a woman;
include at least fifty per cent women; and
involve an external member familiar with women’s rights or sexual-harassment issues.
Employers also had to assist affected women in criminal proceedings where the conduct amounted to an offence.
The Court required governments and employers to promote awareness and ensure that victims or witnesses were not subjected to retaliation.

The Court unanimously declared workplace sexual harassment a violation of Articles 14, 15, 19(1)(g) and 21.
It issued the Vishaka Guidelines for prevention, complaint handling and employer responsibility.
The guidelines applied to public and private workplaces.
They were declared binding until Parliament enacted legislation.