Vishaka v. State of Rajasthan

Article 14 and article 15. Sexual harassment results in the violation of the fundamental right to gender equality. Harassment directed at a woman because she is a woman is discrimination on the ground of sex.

Article 19(1)(g). It violates the right to practise any profession or to carry on any occupation, trade or business, because a workplace in which a woman is harassed is one in which she cannot work on equal terms, and the right includes a right to a safe working environment.

Article 21. It violates the right to life and personal liberty, which includes the right to live with human dignity.

Then the reasoning that makes the case famous. 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 interpreting the guarantee of gender equality and the right to work with human dignity in articles 14, 15, 19(1)(g) and 21, and the safeguards against sexual harassment implicit in them. Any international convention not inconsistent with the fundamental rights and in harmony with their spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee.

The Court grounded that on the Constitution itself. It is implicit from article 51(c), the directive that the State shall endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another; and from the enabling power of Parliament to enact laws for implementing international conventions and norms by virtue of article 253 read with entry 14 of the Union List in the Seventh Schedule. Article 73 was also relied on: the executive power of the Union extends to the matters with respect to which Parliament has power to make laws, and that executive power is available until Parliament legislates.

The guidelines. On that footing the Court laid down guidelines and norms for observance at all workplaces and other institutions, until legislation was enacted. It declared that they would be binding and enforceable in law, and that this was the law declared by the Court under article 141.

The guidelines, in outline

An answer does not need every clause, and it does need the shape and the definition.

The duty of the employer. It is the duty of the employer or other responsible person in a workplace or other institution to prevent or deter the commission of acts of sexual harassment, and to provide procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.

The definition. Sexual harassment includes such unwelcome sexually determined behaviour, whether directly or by implication, as physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography, and any other unwelcome physical, verbal or non-verbal conduct of a sexual nature. The word unwelcome is the operative one, and the test is the woman's perception of the conduct rather than the intention of the person who engaged in it.

Preventive steps. Express prohibition at the workplace, notified and circulated; appropriate provisions in the rules of conduct of government and public sector bodies, with penalties; standing orders in private employment; and working conditions in respect of work, leisure, health and hygiene that ensure there is no hostile environment towards women.

Criminal proceedings. Where the conduct amounts to a specific offence, the employer shall initiate appropriate action by making a complaint to the appropriate authority, and shall ensure that victims and witnesses are not victimised or discriminated against.

Disciplinary action where the conduct amounts to misconduct in employment as defined by the applicable service rules.

A complaints committee. Whether or not the conduct constitutes an offence or a breach of service rules, the employer shall create an appropriate complaint mechanism. It should be headed by a woman, not less than half of its members should be women, and, to prevent undue pressure from senior levels, it should include a third party, such as a non-governmental organisation familiar with the issue. The complaints committee must maintain confidentiality and submit an annual report to the Government.

Workers' initiative to raise the issue in workers' meetings and in employer-employee meetings, and awareness of the rights of female employees by prominently notifying the guidelines.

Third-party conduct. Where sexual harassment occurs as a result of an act or omission by a third party or an outsider, the employer and the person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.

Why the case matters for this syllabus

It is judicial legislation, openly. The Court said the guidelines would be binding until suitable legislation was enacted. It is the technique used in [D.K. Basu v. State of West Bengal] a year earlier, and named as a technique in [Aruna Shanbaug v. Union of India] fourteen years later, where the Court said in terms that it was "following the technique used in Vishakha's case".

It is the clearest use of an external aid in Indian constitutional law. MU's topic 3.1 lists travaux preparatoires among the external aids, and students struggle to find an Indian illustration. This is it, at one remove: what was used was not the preparatory work of a treaty but the treaty itself, read into a fundamental right because no Indian law occupied the field.

It defines the limit of that use. The Court did not say that a ratified convention is Indian law. It said that where there is no domestic law in the field, and the convention is not inconsistent with the fundamental rights and is in harmony with their spirit, it may be read into them. India remains dualist, and this is a rule of construction rather than an exception to dualism. That distinction is worked in [International Law, Arbitration, Jurisdiction and Amicus Curiae].

What has happened since

The guidelines were expressly interim, and the interim ended. Parliament has since enacted a statute for the prevention, prohibition and redressal of sexual harassment of women at the workplace, which puts the substance of the guidelines, including the internal complaints committee, into legislation.

So an answer should say: the guidelines held the field from 1997 until the legislation, and the field is now statutory. A student who states the guidelines as the current law is describing 1997, exactly as a student who states the eleven requirements in [D.K. Basu v. State of West Bengal] without mentioning the Sanhita is describing 1996.

Majority and minority

There is no dissent. The judgment was delivered for the Court by a bench of three judges.

A worked example

A private company in Andheri has forty employees. A senior manager repeatedly makes remarks of a sexual nature to a junior colleague, Neha, and suggests that her confirmation depends on her attitude to him. She complains to the human resources department, which tells her that the manager "means no harm".

Which rights are engaged? On Vishaka, article 14 and article 15, because the conduct is directed at her as a woman; article 19(1)(g), because she cannot carry on her occupation on equal terms in a hostile environment; and article 21, because the right to life includes the right to live with dignity.

Does the manager's intention matter? No. The definition turns on conduct that is unwelcome, tested by her perception, and "he meant no harm" is not an answer to it.

What was the employer bound to do under the guidelines? To prevent or deter the commission of such acts and to provide a procedure for resolution; to have a complaints mechanism headed by a woman, with not less than half women members and a third party from outside; to keep the complaint confidential; to initiate criminal proceedings by complaint where the conduct amounts to an offence; and to take disciplinary action where it amounts to misconduct under the service rules.

Can Neha enforce this against a private company? This is the question that separates a good answer from an average one. Article 32 lies against the State, and a private company is ordinarily not the State under article 12, as [Fact, Person, Offence and State] explains. What the Vishaka guidelines did was to impose a duty on every employer, declared as the law under article 141, so the obligation is not confined to public employment; and today the position is statutory, so the duty rests on the employer under the Act and is enforced through the machinery the Act creates.

And if the incident had happened in 1999? Then the guidelines themselves would have been the operative law, binding and enforceable, and that is precisely the situation the Court legislated for.

Distinctions table

What this case does NOT decide

It does not decide the criminal case. The gang rape was prosecuted separately; the writ petition was about the class.

It does not make international conventions binding in Indian law. India is dualist and article 253 exists because implementation requires legislation. The convention was used as an aid to construing articles that were already there.

It does not apply where a domestic law occupies the field. The Court said so in terms, and the whole technique depends on the vacuum.

It does not confine itself to public employment. The duty was imposed on employers generally.

Limits and criticism

The judicial-legislation objection is the same one raised against [D.K. Basu v. State of West Bengal], and the answer is the same: the guidelines were derived from the fundamental rights, were expressly interim, and have been replaced by statute.

Guidelines without machinery achieve little. Between 1997 and the legislation, compliance depended on employers constituting committees that nobody audited, and the standing criticism is that many did not.

The convention route is available only where there is a vacuum, so it is not a general answer to a gap between India's international obligations and its domestic law. Where Parliament has legislated inconsistently with a convention, the Act prevails.

Quick revision

Facts: a class action under article 32 by social activists and non-governmental organisations, arising out of the gang rape of a social worker in Rajasthan, seeking a remedy for working women, there being no Indian law on sexual harassment at work.

Rights: articles 14 and 15, gender equality; 19(1)(g), the right to carry on an occupation, including a safe working environment; 21, life with dignity.

The reasoning: in the absence of domestic law occupying the field, the contents of international conventions and norms are significant for interpreting those guarantees, and any convention not inconsistent with the fundamental rights and in harmony with their spirit must be read into them to enlarge their meaning; implicit from article 51(c), and from article 253 with entry 14 of the Union List, and article 73.

The guidelines: employer's duty to prevent and to provide a procedure; a definition turning on unwelcome sexually determined behaviour; preventive steps and rules of conduct; complaint to the authority where an offence is disclosed; disciplinary action for misconduct; a complaints committee headed by a woman, half its members women, with a third party member, confidentiality and an annual report; workers' initiative and awareness; and third-party conduct. Binding under article 141 until legislation.

Since: superseded by legislation on sexual harassment at the workplace. No dissent.

Test yourself

1. What were the facts, and why did the form of the petition matter?

The petition was a class action under article 32 brought by social activists and non-governmental organisations, arising out of the brutal gang rape of a social worker in a village in Rajasthan, with the object of finding a remedy for the plight of working women rather than of punishing the offenders in that incident, which was the subject of a separate criminal case. The form mattered because the relief sought was general, and because there was no Indian statute on sexual harassment at the workplace, which is the condition on which the Court's technique depended.

2. Which fundamental rights did the Court hold to be violated?

The right to gender equality under articles 14 and 15, because harassment directed at a woman as a woman is discrimination on the ground of sex; the right to practise any profession or carry on any occupation, trade or business under article 19(1)(g), which includes a right to a safe working environment; and the right to life and personal liberty under article 21, which includes the right to live with human dignity.

3. State the proposition about international conventions, and its conditions.

In the absence of domestic law occupying the field, the contents of international conventions and norms are significant for the purpose of interpreting the guarantees of gender equality and the right to work with human dignity in articles 14, 15, 19(1)(g) and 21, 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. The three conditions are therefore a vacuum in domestic law, consistency with the fundamental rights, and harmony with their spirit. The Court grounded this on article 51(c), on article 253 read with entry 14 of the Union List, and on article 73.

4. Outline the guidelines.

The employer must prevent or deter acts of sexual harassment and provide a procedure for their resolution, settlement or prosecution. Sexual harassment is defined as unwelcome sexually determined behaviour, including physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography and other unwelcome conduct of a sexual nature. Preventive steps include express prohibition, rules of conduct with penalties, standing orders and working conditions free of a hostile environment. Where an offence is disclosed the employer must complain to the appropriate authority and protect the complainant and witnesses from victimisation, and misconduct must attract disciplinary action. A complaints committee must be created, headed by a woman, with not less than half women members and a third party member, maintaining confidentiality and reporting annually. Workers may raise the issue in meetings, employees must be made aware of their rights, and third-party harassment attracts the employer's assistance.

5. Does Vishaka make ratified treaties part of Indian law?

No. India follows the dualist approach: a treaty binds India internationally on ratification and becomes enforceable domestically only when Parliament legislates, which is why article 253 confers that power. What Vishaka decided is narrower and is a rule of construction: where no domestic law occupies the field, a convention that is not inconsistent with the fundamental rights and is in harmony with their spirit may be read into those rights so as to enlarge their content. Where Parliament has legislated, the Act governs, whatever the convention says.

6. Is the case still the operative law on sexual harassment at work?

No, and saying so is part of a complete answer. The guidelines were declared to hold the field only until suitable legislation was enacted, and Parliament has since passed a statute for the prevention, prohibition and redressal of sexual harassment of women at the workplace, which puts the substance of the guidelines, including the internal complaints committee, into legislation. Vishaka remains the authority for the constitutional propositions and for the technique; the operative machinery is now statutory.