A

B

VISHAKA AND ORS.

v.

STATE OF RAJASTHAN AND ORS.

AUGUST 13, 1997

[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 /if e 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]

D

E

CRIMINAL

ORIGINAL JURISDICTION

Nos. 666-70 of 1992. ·

(Under Article 32 of the Constitution of India.)

Writ Petition (Crl.)

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.

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

these rights to fill the legislative vacuum.

F

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 :

c

D

E

F

G

ATticle 15:

"JS. Prohibition of discrimination on grounds of religfon, race, caste,

sex or place of birth. -

(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

(3) Nothing in this article shall prevent the State from making

any special provisions for women and Children.

(4) xxx xxx xxx"

ATticle 42:

"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'.

ATticle 5 lA :

"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

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

14. Entering into treaties and agreements with foreign countries

and implementing of treaties, agreements and conventions with

foreign countries.

xxx xxx xxx''

G

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:

(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

(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

are:

Article 11 ;

D

E

F

"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 CEDA W in this context in respect

D

E

F

G

of Article 11 are :

"Violence and equality in employment :

22. Equality in employment can be seriously impaired when

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,

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,

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

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 A ff airs 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

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.

In

view of the above, and the absence of enacted law to provide for

F

G

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,

D

E

F

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,

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:

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

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;

( d) showing pornography;

( e) and other unwelcome physical, verbal or non-verbal conduct

of sexual nature.

Where any of these acts

is committed in circumstances where­

under the victim of such conduct has a reasonable apprehension

A

B

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

A

B

c

D

E

F

G

H

SUPREME COURT REPORTS (1997] SUPP. 3 S.C.R.

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.

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

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.

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

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

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 :

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.

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 D

be affirmatively discussed in Employer-Employee Meetings.

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.