VISHAKA AND ORS.versusSTATE OF RAJASTHAN AND ORS.

A                             VISHAKA AND ORS.
                                          v.
                      STATE OF RAJASTHAN AND ORS.

                                 AUGUST 13, 1997

B                  [J.S. VERMA CJ, SUJATA V. MANOHAR
                            AND B.N. KIRPAL, JJ.]

         Constitution of India-Articles 14, 15, 19 and 21-Fundamental
  Rights-Working women-Gender equality-Sexual harassment of working
C women in work places-Held, such incidents result in violation of 'gender
  equality' as also Right to /ife and liberty and the right to practice profession
  or to carry out occupation, trade or business.

          Arlie/es 51 (c), 253--f'ower of Parliament to enact laws-Absence of
    domestic law occupying the field-Value and significance of the International
D   Convention and norms-Held, the International Convention and norms are
    of great significance and Parliament has the power to enact laws for im-
    plementing the same.

         Arlie/es 32, 141-Power of the Supreme Coult to enforce Fundamental
E   Rights-To lay down guidelines and nonns in the absence of any legisla-
    tion-Held, Supreme Coult 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.

           The present petition was filed for the enforcement of fundamental
F   rights of working women under Articles 14, 19 and 21 of the Constitution
    of India. It was brought as a class action by certain social activists and
    NGOs with the aim of focussing attention towards societal. aberration and
    assisting in finding suitable methods for realisation of the true concept of
    'gender equality'; to prevent sexual harassment of working women in all
G   work phces through judicial process, and to fill the vacum in existing
    legislation. The immediate cause for the filing of present petition was an
    incident of alleged brutal gang rape of a social worker in a village in
    Rajasthan. ·

           Disposing of the writ petition and formulating guidelines and norms
H in exercise of powers under Article 32 of the Constitution, this Court
                                          404
                           VISHAKA v. STATE                             405

      HELD : 1. Each incident of sexual harassment of working women            A
results in violation of fundamental rights of 'Gender Equality' and the
'Right to Life and Liberty'. It is a clear violation of the rights under
Articles 14, 15 and 21 of the Constitution. One of the logical consequences
of such incident is also the violation of the victim's fundamental rights
under Article 19(1)(g) 'to practice any profession or to carry on any          B
occupation, trade or business'. [407·A]

       2. In the absence of domestic law occupying the field, to formulate
effective measures to check the evil ofsexual harassment of working women
at all working places, the contents of International Convention and norms
are significant for the purpose of interpretation of the guarantee of gender   C
equality, 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 Inter-
national Conventions and norms by virtue of Article 253 read with Entry
14 of the Union List in Seventh Schedule of the Constitution. [410-A-C]        D
      3. The power of the Supreme Court under Article 32 for enforcement
of 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 E
by the rule of law mandates this requirement as a logical concomitant of
the Constitutional scheme. [410-E]

       4. 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 achieved global        F
acceptance. The International Convention and norms are of great sig-
nificance in the formulation of guidelines to achieve this purpose. [410-fCJ

       5. The meaning and content of the fundamental rights guaranteed in
the Constitution of India are of significant amplitude to encompass all the G
facts. of gender equality including prevention of sexual harassment or
abuse. Independence of Judiciary forms a part of our constitutional
scheme. The International Convention 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 an accepted rule of Judicial construc-
tion that regard must be had to International Convention and norms for H
    406                   SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A construing domestic law when there is no inconsistency between them and
    there is a void in the domestic law. [413-C-D]

          Minister for Immigration and Ethnic Affairs v. Teoh, 128 ALR 353 and
    Nilabati Behera v. State of Orissa, (1993] 2 SCC 746, referred to.

B         6. Laying down the guidelines and norms for due observance at all
    work places or other institutions, until a legislation is enacted for the
    purpose, is done in exercise of the power available under Article 32 of the
    Constitution for enforcement of the fundamental rights and these would
    be treated as the law declared by the Supreme Court under Article 141 of
C   the Constitution. [414-B]

          CRIMINAL ORIGINAL JURISDICTION                     Writ Petition (Crl.)
    Nos. 666-70 of 1992. ·

          (Under Article 32 of the Constitution of India.)
D
           Mr. F.S. Nariman, Ms. Meenakshi Arora and Ms. Niti Dixit for the
    petitioners.

          T.R. Andhyarujina, Solicitor General, Mukul Mudgal, Ms. Suvira
    Lal, C.V.S. Rao, K.S. Bhati and M.K. Singh for the Respondents.
E
          The Judgment of the Court was delivered by

          VERMA, CJI. This Writ Petition has been filed for the enforcement
    of the fundamental rights of working women .under Articles 14, 19 and 21
    of the Constitution of India in view of the prevailing climate in which the
F   violation of these rights is not uncommon. With the increasing awareness
    and emphasis on gender justice, there is increase in the effort to guard
    against such violations; and the resentment towards incidents of sexual
    harassment is also increasing. The present petition has been brought as a
    class action by certain social activists and NGOs with the aim of focussing
G   attention towards this societal aberration, and assisting in finding suitable
    methods for realisation of the true concept of 'gender equality'; and to
    prevent sexual harassment of working women in all work places through
    judicial process, to fill the vacuum in existing legislation.

          The immediate cause for the filing of this writ petition is an incident
H   of alleged brutal gang rape of a social worker in a village of Rajasthan.
                    VISHAKAv. STATE[VERMA, CJI.]                           407

That incident is the subject matter of a separate criminal action and no          A
further mention of it, by us, is necessary. 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 ab-
sence of legislative measures, the need is to find an effective alternative       B
mechanism to fulfil this felt and urgent social need.

        Each such incident results in violation of the fundamental rights of
'Gender Equality' and the 'Right to Life and Liberty'. 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    C
fundamental right under Article 19(1)(g) 'to practice any profession or to
carry out any occupation, trade or business'. Such violations, therefore,
attract the remecty under Article 32 for the enforcement of these fun-
damental 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       D
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       E
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 workero. under Articles 14, 19 and 21 are
brought before us for redress under Article 32, an effective redressal
requires that some guidelines should be laid down for the protection of
                                                                                  F
these rights to fill the legislative vacuum.

       The notice of the petition was given to the State of Rajasthan and
the Union of India. The learned Solicitor General appeared for the Union
of India and rendered valuable assistance in the true spirit of a Law Officer
to help us find a proper solution to this social problem of considerable G
magnitude. In addition to Ms. Meenakshi Arora and Ms. Naina Kapur who
assisted the Court with full commitment, Shri Fali S. Nariman appeared as
Amicus Curiae and rendered great assistance. We place on record our
great appreciation for every counsel who appeared in the case and
tendered the needed assistance to the Court which has enabled us to deal H
    408                      SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A with this unusual matter in the manner considered appropriate for a cause
    of this nature.

           Apart from Article 32 of the Constitution of India, we may refer to
    some other provisions which envisage judicial intervention for eradication
    of. this social evil. Some provisions in the Constitution in addition to
B   Articles 14, 19(1)(g) and 21, which have relevance are :

            ATticle 15:

             "JS. Prohibition of discrimination on grounds of religfon, race, caste,
             sex or place of birth. -
c
             (1) The State shall not discriminate against any citizen on only
                 of religion, race, caste, sex, place of birth or any of them.

             (2) xxx                      xxx                        xxx
D            (3) Nothing in this article shall prevent the State from making
                 any special provisions for women and Children.

             (4) xxx                         xxx                     xxx"

             ATticle 42:
E
             "42. Provision for just and humane conditions of work and mater-
             nity relief - The State shall make provision for securing just and
             humane conditions of work and for maternity rdief'.

F            ATticle 5lA :

             "5 lA. Fundamental duties. - It shall be the duty of every citizen of
             India, -

             (a) to abide by the Constitution and respect its ideals and institu-
G                tions, .....

                      xxx xxx xxx

             (e) to promote harmony and the spirit of common brotherhood
                 amongst all the people of India transcending religious, lin-
H                guistic and regional or sectional diversities; to renounce prac-
                   VISHAKA v. STATE [VERMA, CTI.]                         409
             tices derogatory to the dignity of women;                           A
             xxx                    xxx                        xxx''

      Before we refer to the international conventions and norms having
relevance in this field and the manner in which they assume significance in
application and judicial interpretation, we may advert to some other             B
provisions in the Constitution which permit such use. These provisions
are:

        Article 51 :

        "5 I. Promotion of international peace and security - The State shall C
        endeavour to -

             xxx                    xxx                       xxx

        (c) foster respect for international law and treaty obligationsin
            the dealings of organised people with one another; and               D
             xxx                       xxx                    xxx''

        Article 253 :

        "253. Legislation for giving effect to international agreements - Not-   E
        withstanding anything in the foregoing provisions of this Chapter,
        Parliament has power to make any law for the whole or any part
        of the territory of India for implementing any treaty, agreement or
        convention with any other country or countries or any decision
        made at any international conference, association or other body."        F
        Seventh Schedule : .

        "List B - Union List :

             xxx                       xxx                     xxx               G
        14. Entering into treaties and agreements with foreign countries
        and implementing of treaties, agreements and conventions with
        foreign countries.

             xxx                       xxx                     xxx''             H
    410                   SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A          In the absence of domestic law occupying the filed, 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,
B   19(1)(g) and 21 of the Constitution and the safegnards 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 to the constitutional guarantee. This is 'implicit from
    Article 51(c) and the enabling power of the Parliament to enact laws for
C   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,
D   therefore, available till the Parliament enacts legislation to expressly pro-
    vide measures needed to curb the evil.

          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
E   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 exercise performed by the Court in this matter
    is with this common perception shared with the learned Solicitor General
    and other members of the bar who rendered valuable assistance in the
p   performance of this difficult task in public interest.

          The progress made at each hearing culminated in the formulation of
    guidelines to which the Union of India gave its consent through the learned
    Solicitor General, indicating that these should be the guidelines and norms
    declared by this Court to govern the behaviour of the employers and all
G   others at the work places to curb this social evil.

            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
H    acceptance. The International Conventions and norms are, therefore, of
                        VISHAKA v. STATE [VERMA, CJI.]                        411

     great significance in the formulation of the guidelines to achieve this A
     purpose.

            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 fodependence of the Judiciary in the             B
     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 objectives of
     the judiciary mentioned in the Beijing Statement are :                          C
             "Objectives of the Judiciary :

             10. The objectives .and functions of the Judiciary include the
\\               following:
                                                                                     D
             (a) to ensure that all persons are able to live securely under the
                 Rule of Law;

             (b) to promote, within the proper limits of the judicial function,
                 the observance and the attainment of human rights; and
                                                                                     E
             (c) to administer the law impartially among persons and between
                 persons and the State".

          Some provisions in the 'Convention on the Elimination of All Forms
     of Discrimination against Women', of significance in the present context
                                                                                     F
     are:

             Article 11 ;

                "l. States parties shall take all appropriate measures to
             eliminate discrimination against women in the filed of employment       G
             in order to ensure, on a basis of equality of men and women, the
             same rights, in particular :

             (a) The right to work as an inalienable right of all human bein~;

                  xxx                         xxx                  xxx               H
    412                   SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A          (f)   The right to protection of health and to safety in working
                 conditions, including the safeguarding of the function of
                 reproduction.

                 xxx                      xxx                   xxx"

B          Article 24 :

               "States Parties undertake to adopt all necessary measures at
           the national level aimed at achieving the full realization of the
           rights recognised in the present Convention."

C         The general recommendations of CEDAW in this context in respect
    of Article 11 are :

                       "Violence and equality in employment :

            22. Equality in employment can be seriously impaired when
D               women are subjected to gender specific violence, such as
                sexual harassment in the work place.

            23. Sexual harassment includes such unwelcome sexually dete!-
                mined behaviour as physical contacts and advances, sexually
                coloured remarks, showing pornography and sexual demands,
E
                whether by words or actions. Such conduct can be humiliating
                and may constitute a health and safety problem; it is dis-
                criminatory when the woman has reasonable grounds to
                believe that her objection would disadvantage her in connec-
                tion With her employment, including recruiting or promotion,
F               or when it creates a hostile working environment. Effective
                complaints procedures and remedies, including compensa-
                tion, should be provided.

            24. States shcmld include in their reports information about
                sexual harassment, and on measures to protect women from
G
                sexual harassment and other forms of violence of coercion in
                the work place."

    The Government of India has ratified the above Resolution on June 25,
    1993 with some reservations which are not material in the present context.
H   At the Fourth World Conference on Women in Beijing, the Government
                      VISHAKA v. STATE [VERMA, OI.J                        413

   of India has also made an official commitment, inter alia, to formulate and A
.. 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 implementa-
   tion of the Platform for Action. We have, therefore, no hesitation in placing B
   reliance on the above for the purpose of construing the nature and ambit
   of constitutional guarantee of gender equality in our Constitution.

        The meaning and content of the fundamental rights guaranteed in
  the Constitution o~ India are of sufficient amplitude to encompass all the
  facets of gender equality including prevention of sexual harassment or          C
  abuse. Independence of Judiciary forms a part of our constitutional
  scheine. The international conventions and norms are to be read into them
  in the absence of enacted domestic law occupying the field when tJi,ere is
  no inconsistency between them. It is now an accepted rule of judicial
  construction that regard must be had to international conventions and           D
  norms for construing domestic law when there is no inconsistency between
  them and there is a void in the domestic law. The High Court of Australia
  in Minister for Immigration and Ethnic Affairs v. Teoh, 128 ALR 353, has
  recognised the concept of legitimate expectation of its observance in the
  absence of a contrary legislative provision, even in the absence of a Bill of   E
  Rights is the Constitution of Australia.

         In Nilabati Behera v. State of Orissa, (1993] 2 SCC 746, a provision
  in the ICCPR was referred to support the view taken 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, distinct from        F
  the private law remedy in torts. 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 general equality in all spheres of human
  activity.                                                                       G

        In view of the above, and 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, more particularly against
  sexual harassment at work places, we lay down the guidelines an.d norms H
    414                   SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A specified hereinafter for due observance at all work places or other
    institutions, until a legislation is enacted for the purpose. This is done in
    exercise of the power available under Article 32 of the Constitution for
    enforcement of the fundamental rights and it is further emphasised that
    this would be treated as the law declared by this Court under Article 141
B   of the Constitution.

            tHE GUIDELINES and NORMS prescribed herein are as
            under:

            HA YING REGARD to the definition of 'human rights' in Section
C           2{d) of the Protection of Human Right Act,-1993,
                                                       1:         '
            TAKING NOTE of the fact that the present civil       arid 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,
D
             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:

E            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 com-
              mission of acts of sexual harassment and to provide the procedures
F
              for the resolution, settlement or prosecution of acts of sexual
              harassment by taking all steps required.

             2.   Definition : ·

G            For this purpose, sexual harassment includes such unwelcome
             sexually determined behaviour {whether directly or by implication)
             as:

             (a) physical contact and advances;

H           . (b) a demand or request for sexual favours;
           VISHAKA v. STATE [VERMA, CJI.]                       415

(c) seX:ually coloured remarks;                                        A
(d) showing pornography;

(e) and other unwelcome physical, verbal or non-verbal conduct
    of sexual nature.
                                                                       B
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 govern-
ment, public or private enterprise such conduct can be humiliating     C
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   D
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      E
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
                                                                       F
    in appropriate ways.

(b) The Rules/Regulations of Government and Public Sector
    bodi~s relating to conduct and discipline should include
    rules/regulations prohibiting sexual harassment and provide
    for appropriate penalties in such rules against the offender.      G
(c) A_s 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 H
    416                SUPREME COURT REPORTS (1997] SUPP. 3 S.C.R.

A              of work, leisure, health and hygiene to further ensure that
               there is no hostile environment towards women at work places
               and no employee woman should have reasonable grounds to
               believe that she is disadvantaged in connection with her
               employment.

B         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
c         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.
D
          5.   Disciplinary Action :

          Where such conduct amounts to mis-conduct in employment as
          defined by the relevant service rules, appropriate disciplinary ac-
          tion should be initiated by the employer in accordance with those
E         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
F         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 :
G         The complaint mechanism, referred to in (6) above, should be
          adequate to provide, where necessary, a Complaints Committee, a
          special counsellor or other support service, including the main-
          tenance of confidentiality.

H         The Complaints Committee should be headed by a woman and not
               VISHAKA v. STATE [VERMA, CTI.)                      417

    less than half of its member should be women. Further, to prevent     A
    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            B
    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     C
    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.
                                                                          D


    9.   Awareness :

    Awareness of the rights of female employees in this regard should
    be created in particular by prominently notifying the guidelines E
    (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      F
    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 G
        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.                         H
    418                   SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A          Accordingly, we direct that the above guidelines and norms would
    be strictly observed in all work places for the preservation and enforcement
    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. These Writ Petitions are disposed of, accordingly.

    K.H.N.S.                                              .Petitions disposed of.