Vishaka v State of Rajasthan (1997)

Vishaka is on the syllabus for three reasons, and an answer should touch all three.

It is the leading Indian authority on the use of an international convention to fill a gap in domestic law. That is a Legal Language topic as much as a constitutional one, because it belongs to the external aids to interpretation: it establishes when and how a court may read an unincorporated treaty into a fundamental right.

It is, with D.K. Basu decided in the same year, the standard illustration of the Supreme Court issuing binding guidelines in a legislative vacuum, and declaring them to be law under Article 141 until Parliament legislates.

And it is the case where the sequel matters most. The guidelines governed the field for sixteen years and were then enacted, in substance, as a statute. A candidate who describes the guidelines and stops has answered half the question. The examiner is looking for the sentence that says the guidelines now have statutory form under the Act of 2013.

The petition arose from an incident in Rajasthan in 1992 involving a woman employed as a social worker in a State government development programme, who was subjected to a violent assault in reprisal for her work in the course of that employment. The criminal proceedings that followed took their own course and are not the subject of this case. What brought the matter to the Supreme Court was a different question: the incident exposed the fact that a woman working in India had, at that date, no legal machinery at all by which to complain of harassment arising out of her employment, and no obligation lay on any employer to provide one.

A group of social activists and non-governmental organisations, under the name Vishaka, filed a writ petition under Article 32 as a class action. The relief sought was not compensation for the individual, nor the punishment of anyone. It was a declaration that sexual harassment at the workplace violates a woman's fundamental rights, and a direction that machinery be established to prevent it and to deal with complaints.

That framing is the key to the case. The petitioners deliberately presented it as a systemic gap, not a grievance. The Court accepted that framing, and the Solicitor General, appearing for the respondents, supported the petitioners rather than opposing them — an unusual and important feature, since it meant the Court was not resolving a contest but designing a remedy with the assistance of both sides and of amici curiae.

1. Whether sexual harassment of a woman at her place of work infringes the fundamental rights guaranteed by Articles 14, 15, 19(1)(g) and 21 of the Constitution.
2. Whether, in the absence of any enacted law on the subject, the Supreme Court may lay down binding guidelines in exercise of its jurisdiction under Article 32.
3. Whether, and on what basis, the Court may have recourse to an international convention which India has ratified but which has not been given effect by domestic legislation.

For the petitioners it was argued that the right to life under Article 21 includes the right to live with dignity; that the right to practise any profession or to carry on any occupation under Article 19(1)(g) is defeated if a woman cannot work in a safe environment; that Articles 14 and 15 guarantee equality and forbid discrimination on the ground of sex; and that harassment at the workplace is therefore not merely a wrong against the individual but a denial of her constitutional rights. Since no statute occupied the field, the Court should exercise its power under Article 32 to devise a remedy, taking guidance from India's obligations under the Convention on the Elimination of All Forms of Discrimination Against Women, which India had ratified in 1993.

The Solicitor General, appearing for the respondents, supported the petitioners and assisted the Court in framing the guidelines. Amici curiae also assisted. There was, accordingly, no substantial contest on the constitutional propositions; the argument was directed to the form and content of the relief.

The Court, in a judgment delivered by Verma CJ for himself and Mrs Sujata V. Manohar and B.N. Kirpal JJ, held:

1. Sexual harassment of a woman at her place of work is a violation of the fundamental rights guaranteed by Articles 14, 15, 19(1)(g) and 21. Each incident results in the violation of the rights to gender equality and to life and liberty, and it is a clear violation of the right to practise any profession or to carry on any occupation, trade or business, which includes a right to a safe working environment.
2. In the absence of enacted law to provide for the effective enforcement of these rights, the Court would lay down guidelines and norms for observance at all workplaces or other institutions, in exercise of the power available under Article 32 for the enforcement of fundamental rights.
3. In the absence of domestic law occupying the field, international conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality and the right to work with dignity in Articles 14, 15, 19(1)(g) and 21. 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, so as to promote the object of the constitutional guarantee. The Court relied on Article 51(c), which directs the State to foster respect for international law and treaty obligations, and on Article 253, which gives Parliament the power to legislate for implementing international agreements, as the constitutional foundation for that approach. It also cited the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region.
4. The guidelines and norms so laid down were declared to be binding and enforceable in law until suitable legislation was enacted to occupy the field, and were declared to be law declared by this Court under Article 141 of the Constitution.
5. The Court expressly noted that the guidelines would not prejudice any rights available under the Protection of Human Rights Act 1993.

These are what the past paper asks for. Reproduce them as a numbered list.

1. Duty of the employer. It is the duty of the employer, and of other responsible persons in workplaces and other institutions, to prevent or deter the commission of acts of sexual harassment, and to provide procedures for the resolution, settlement or prosecution of such acts by taking all steps required.

1. Definition. For this purpose, 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 Court added that where any of these acts is committed in circumstances in which the victim has a reasonable apprehension that, in relation to her employment or work, it would be detrimental to her employment or work — whether she is drawing a salary or is honorary — or would give rise to a health and safety problem, it is discriminatory; and that it is discriminatory when the woman has reasonable grounds to believe that objecting would disadvantage her in her employment, including in recruitment or promotion, or would create a hostile working environment.

1. Preventive steps. All employers and persons in charge of a workplace, whether in the public or the private sector, should take appropriate steps to prevent sexual harassment. In particular: the prohibition of sexual harassment should be notified, published and circulated in appropriate ways; the rules and regulations of government and public-sector bodies relating to conduct and discipline should include rules prohibiting sexual harassment and provide for appropriate penalties; as regards private employers, steps should be taken to include the prohibition in the standing orders under the Industrial Employment (Standing Orders) Act 1946; and appropriate work conditions should be provided in respect of work, leisure, health and hygiene, so that there is no hostile environment towards women and no woman has reasonable grounds to believe that she is disadvantaged in connection with her employment.

1. Criminal proceedings. Where such conduct amounts to a specific offence under the penal law or under any other law, the employer shall initiate appropriate action by making a complaint with the appropriate authority, and shall in particular ensure that victims or witnesses are not victimised or discriminated against. Victims should have the option to seek their own transfer or the transfer of the perpetrator.

1. Disciplinary action. Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.

1. Complaint mechanism. Whether or not the conduct constitutes an offence under any law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer's organisation for the redress of the complaint. The mechanism should ensure time-bound treatment of complaints.

1. Complaints Committee. The complaint mechanism should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman, not less than half of its members should be women, and — to prevent the possibility of undue pressure or influence from senior levels — it should involve a third party, such as a non-governmental organisation or other body familiar with the issue of sexual harassment. The Committee must make an annual report to the Government department concerned of the complaints and the action taken, and the employer or person in charge must report on the compliance of the Committee's recommendations.

1. Workers' initiative. Employees should be allowed to raise issues of sexual harassment at workers' meetings and in other appropriate forums, and it should be affirmatively discussed in employer–employee meetings.

1. Awareness. Awareness of the rights of female employees should be created, in particular by prominently notifying the guidelines and, suitably, by conducting workshops and awareness programmes.

1. Third-party harassment. Where sexual harassment occurs as a result of an act or omission by any third party or 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.

1. Application and the duty of the Central and State Governments. The Central and State Governments are requested to consider adopting suitable measures, including legislation, to ensure that the guidelines are also observed by employers in the private sector. The guidelines are to be strictly observed in all workplaces, and are binding and enforceable in law until suitable legislation is enacted.

Two propositions.

On the constitutional question. Sexual harassment of a woman at her place of work violates Articles 14, 15, 19(1)(g) and 21 of the Constitution. The right to work with dignity and in a safe environment is a component of the right to life under Article 21 and of the right to carry on an occupation under Article 19(1)(g).

On the interpretive question — the part that matters for Legal Language. Where there is no domestic law occupying the field, and where an international convention is not inconsistent with the fundamental rights and is in harmony with their spirit, that convention must be read into the fundamental rights so as to enlarge their meaning and content. The constitutional warrant for doing so is Article 51(c) read with Article 253, and the power to give effect to it comes from Article 32.

Note carefully the limits built into that proposition. It applies only in a vacuum — where Parliament has legislated, the statute prevails, and an unincorporated treaty cannot be used to contradict it. It applies only where the convention is consistent with the fundamental rights. And it operates as an aid to construing an existing constitutional guarantee, not as a means of creating a new one. That is the difference between Vishaka and a claim that a ratified treaty is automatically part of Indian law, which it is not; India follows the dualist approach, under which a treaty requires legislation to become enforceable municipal law.

The Court proceeded in four moves.

First, it located the right. Rather than announce a new right against harassment, it showed that the conduct in question defeats rights the Constitution already guarantees. Harassment at work is a form of sex discrimination, so Articles 14 and 15 are engaged. It denies the woman the ability to pursue her occupation on equal terms, so Article 19(1)(g) is engaged. And because Article 21 has long been read to include the right to live with human dignity, harassment at work engages Article 21 as well. Framing the case this way avoided the objection that the Court was inventing rights.

Second, it identified the vacuum. No Indian statute defined sexual harassment at the workplace, imposed a duty on employers, or provided a complaint mechanism. The penal law dealt with certain offences after the event but did nothing preventive, and it gave the woman no remedy within her employment. A right that engages the Constitution but has no machinery is, in practical terms, unenforceable.

Third, it found a source of content. This is the interpretive heart of the judgment. Having decided that the constitutional guarantees covered the situation, the Court still had to decide what they required. The answer was CEDAW, which India had ratified in 1993 with a commitment to formulate a national policy for the elimination of discrimination against women, and the general recommendations of the CEDAW Committee, which had addressed sexual harassment at work. Because the Convention was consistent with the fundamental rights and in harmony with their spirit, the Court held it could be read into them. Articles 51(c) and 253 supplied the constitutional warrant; the Court also relied on the settled rule that domestic law should where possible be construed consistently with international obligations.

Fourth, it built the machinery. The eleven guidelines are, in structure, a small statute: a duty, a definition, preventive obligations, a route to criminal and disciplinary action, a complaint mechanism, an institution to run it, safeguards for the complainant, and a reporting requirement. The composition rules for the Complaints Committee — chaired by a woman, at least half women, and a third-party member from outside the organisation — are the most carefully engineered part, because the Court identified the real danger as internal pressure from senior levels, and the third-party requirement is the structural answer to it.

The declaration under Article 141 was necessary because a guideline is not otherwise binding. By declaring the guidelines to be law declared by the Supreme Court, the Court made them binding on all courts under Article 141 and enforceable against employers, while expressly framing them as an interim measure until Parliament acted.

Judicial application. In Apparel Export Promotion Council v A.K. Chopra (1999) the Supreme Court applied Vishaka in a service-law context, upheld the dismissal of a superior for harassment of a subordinate, and held that physical contact is not essential — the test is whether the conduct is unwelcome and sexually determined. It reiterated that international instruments consistent with the fundamental rights may be relied on. In Medha Kotwal Lele v Union of India (2013) the Court found compliance with Vishaka to be poor and issued further directions to the States and Union Territories, including that Complaints Committees be treated as inquiry authorities for the purposes of the service rules and that their reports be treated as inquiry reports.

Legislation — the decisive development. Parliament enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, which came into force on 9 December 2013 and gives the guidelines statutory form. The correspondence is close and is worth stating:

| Vishaka guideline | The Act of 2013 | |---|---| | The definition of sexual harassment | s. 2(n), which reproduces the five limbs, with s. 3(2) setting out the circumstances (implied or explicit promise or threat regarding employment, interference with work, a hostile environment, humiliating treatment likely to affect health or safety) | | "Workplace" and "employee" | s. 2(o) and s. 2(f), both defined broadly — the Act covers the organised and unorganised sectors, and an employee whether regular, temporary, ad hoc, on a daily-wage basis, a probationer, trainee, apprentice or working voluntarily | | The Complaints Committee | s. 4 — an Internal Committee in every workplace with ten or more employees, headed by a Presiding Officer who is a woman at a senior level, with at least two members from among employees committed to the cause of women, and one member from a non-governmental organisation or a person familiar with the issues; not less than one-half of the total members to be women | | Machinery where there is no employer or fewer than ten employees | s. 6 — a Local Committee in every district, constituted by the District Officer appointed under s. 5 | | Duty of the employer | s. 19 — to provide a safe working environment, display the penal consequences and the order constituting the Committee, organise workshops, and assist in securing the attendance of witnesses | | Time limits | s. 9 — complaint within three months, extendable by a further three months for reasons recorded; s. 11(4) — inquiry to be completed within 90 days; s. 13(1) — report within 10 days of completion | | Conciliation, relief and appeal | s. 10 conciliation; s. 12 interim relief; s. 13 action on the report; s. 18 appeal | | Confidentiality; malicious complaints; non-compliance | s. 16; s. 14; s. 26 — penalty up to Rs 50,000 and, on repetition, cancellation of licence or registration |

Say in an answer: "the guidelines were binding as law under Article 141 until 2013, and now have statutory form under the Act of 2013, so the source of the obligation is the statute and Vishaka remains the origin of the law and the guide to its interpretation."

Continuing supervision. In Aureliano Fernandes v State of Goa (2023) the Supreme Court found serious gaps in the implementation of the 2013 Act more than a decade after its enactment, and directed the Union, the States and the Union Territories to verify whether the required Internal and Local Committees had in fact been constituted, to publish the details, and to conduct training and awareness programmes. The Court has since continued to monitor compliance. The point for an exam answer is that the legislative gap has been filled but the implementation gap has not.