Vishaka v State of Rajasthan (1997)

This is the most important case on this syllabus for the relationship between international human rights law and Indian law, because it is the case in which the Court went furthest. It did not merely use a convention to construe an existing provision. It used a convention to manufacture binding norms where Parliament had enacted nothing at all, and it said so openly.

Everything else about the case - the guidelines, the definition of sexual harassment, the eventual statute - follows from that one methodological step.

The litigation resulted from the brutal gang rape of a publicly employed social worker in a village in Rajasthan, in the course of her employment. The petition was not brought to punish the individuals; that was a matter for the criminal law. It was brought, as the Court put it, to find suitable methods for the realisation of the true concept of gender equality in the workplace for women.

That is the crucial framing and an answer should reproduce it. The claim was systemic: not this woman was wronged but there is no law protecting working women against this class of wrong.

In the absence of any domestic law dealing with sexual harassment at the workplace, can the Court give effect to the guarantee of gender equality by drawing on international conventions to which India is a party?

Yes. The proposition, in the Court's words, is this: "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 interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein."

Read the conditions carefully, because they are the limits of the doctrine:

1. In the absence of domestic law occupying the field - the technique is for a vacuum, not for displacing a statute the legislature has enacted.
2. The contents of international conventions and norms are significant for the purpose of interpretation - the instruments are used to interpret the fundamental rights, not to create free-standing rights.
3. The rights interpreted are named: Articles 14, 15, 19(1)(g) and 21, and the safeguards against sexual harassment are said to be implicit in them.

The Court then laid down guidelines, binding until suitable legislation was enacted.

Articles 11 and 24 of the Convention on the Elimination of All Forms of Discrimination against Women were referred to in deciding the case - Article 11 on the elimination of discrimination against women in the field of employment, and Article 24 on the undertaking of States Parties to adopt all necessary measures at the national level aimed at achieving the full realisation of the rights recognised in the Convention.

Article 7 of the Covenant on Economic, Social and Cultural Rights recognises the right to just and favourable conditions of work, which reflects that women shall not be subjected to sexual harassment at the place of work in a way that vitiates the working environment.

The Court concluded that these international instruments cast an obligation on the Indian State to gender-sensitise its laws, and that the courts are under an obligation to see that the message of the international instruments is not allowed to be drowned.

The obvious objection is that the Court legislated. The answer, which you should be able to give, has three limbs.

First, the right already existed. Articles 14, 15, 19(1)(g) and 21 were in the Constitution in 1997 and had been since 1950. Sexual harassment at work defeats equality, defeats the freedom to practise any profession or carry on any occupation, and defeats the right to live with dignity. The Court did not create a right; it identified an existing right that had no machinery.

Second, Article 32 requires an effective remedy. The right to move the Supreme Court for the enforcement of the rights conferred by Part III is itself guaranteed. A court that acknowledges a right and provides no means of enforcing it has not discharged Article 32. Compare Article 8 of the Universal Declaration - everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Third, the content came from an instrument India had accepted. The Court did not invent the standard. India is a party to the Convention on the Elimination of All Forms of Discrimination against Women and had undertaken by Article 24 to adopt all necessary measures at the national level. The Court supplied, on an interim basis, what the executive and legislature had undertaken to supply and had not.

The guidelines were expressly to operate until suitable legislation is enacted. That self-limiting clause is the answer to the separation-of-powers objection, and it is also what makes the case an example of the judiciary compelling implementation of a treaty obligation rather than substituting itself for the legislature.

• Kesavananda Bharati (1973): an instrument may be used to construe a provision.
• Jolly George Varghese (1980): but a Covenant right with no domestic counterpart is not enforceable; India is dualist.
• Vishaka (1997): where there is no domestic law occupying the field, the contents of conventions may be read into the fundamental rights and enforced by guidelines.
• Apparel Export Promotion Council v A.K. Chopra (1999): courts must remain alive to international instruments and apply them where there is no inconsistency with the domestic law occupying the field.

Vishaka and Jolly George Varghese are reconciled by the same phrase in both: domestic law occupying the field. Where such law exists, the instrument construes it; where it does not, the instrument may fill the space.