Vishaka v. State of Rajasthan

In one line

Where there is no Indian law on a subject, the contents of an international convention consistent with the fundamental rights may be read into those rights, and the Supreme Court did that for sexual harassment at the workplace and issued binding guidelines until Parliament legislated.

In the wording a student can write in an exam: the Supreme Court held that sexual harassment of a working woman violates her fundamental rights to equality under articles 14 and 15, to practise any profession or carry on any occupation, trade or business under article 19(1)(g), and to life with dignity under article 21; that in the absence of domestic law occupying the field, the contents of international conventions and norms are significant for the purpose of interpreting those guarantees, and any international convention not inconsistent with the fundamental rights and in harmony with their spirit must be read into those provisions to enlarge their meaning and content, this being implicit from article 51(c) and from the enabling power of Parliament under article 253 read with entry 14 of the Union List; and that the guidelines it laid down would be binding and enforceable, and would be treated as the law declared under article 141, until suitable legislation was enacted.

The facts

Facts. Vishaka v. State of Rajasthan, AIR 1997 SC 3011. The petition arose out of the brutal gang rape of a social worker in a village in Rajasthan. It was brought as a class action under article 32 by certain social activists and non-governmental organisations, with the object of focusing attention on the plight of working women and of finding suitable methods for the realisation of their true concerns.

Two features of the facts decide the shape of the judgment and should be stated in an answer.

The petition was not about punishing the offenders in that incident. The criminal case was separate. What was sought was a remedy for the class: an effective mechanism against sexual harassment of women at work.

There was no Indian statute on the subject. That absence is not incidental; it is the condition on which the whole technique of the judgment rests. Had there been a law in the field, the Court could not have done what it did.

The questions

Whether sexual harassment at the workplace violates any fundamental right, and if so which.

Whether, in the absence of any statute, the Court could look at international instruments to which India was a party but which Parliament had not enacted into Indian law.

What remedy the Court could give, given that a code of conduct for workplaces is ordinarily legislation.

What the Court held

Held. Each fundamental right of a working woman which is violated by sexual harassment was identified.