Vishaka v. State of Rajasthan
Supreme Court of India · 13 August 1997 · 3 judges
In the absence of legislation, the Court laid down binding guidelines and norms to prevent sexual harassment of women at all work places, reading international conventions such as CEDAW into Articles 14, 15, 19(1)(g) and 21.
Facts
Social activists and NGOs filed a class action under Article 32 to enforce the fundamental rights of working women under Articles 14, 19 and 21 and to prevent sexual harassment at work places. The immediate cause was an alleged gang rape of a social worker in a village in Rajasthan, which was the subject of separate criminal proceedings. Notice was given to the State of Rajasthan and the Union of India. The Solicitor General assisted the Court for the Union, and Fali S. Nariman appeared as amicus curiae. The hearings culminated in guidelines to which the Union of India consented through the Solicitor General.
Questions before the Court
- Does sexual harassment of women at the work place violate their fundamental rights under Articles 14, 15, 19(1)(g) and 21?
- Can international conventions and norms be used to construe fundamental rights where there is no domestic law on the subject?
- Can the Court, under Article 32, lay down guidelines to fill the legislative vacuum until a law is enacted?
What the Court held
- Each incident of sexual harassment of women at the work place violates the fundamental rights of gender equality and of life and liberty under Articles 14, 15 and 21, and the right under Article 19(1)(g), which depends on a safe working environment. Such violations attract the remedy under Article 32.
- In the absence of domestic law occupying the field, any international convention not inconsistent with the fundamental rights and in harmony with their spirit must be read into them to enlarge their meaning and content; this is implicit in Article 51(c) and Article 253 read with Entry 14 of the Union List.
- Relying on CEDAW, which India had ratified, and its general recommendations, the Court construed the guarantee of gender equality as including protection from sexual harassment and the right to work with dignity.
- The Court laid down guidelines and norms, including a duty on employers to prevent sexual harassment, a definition of sexual harassment, preventive steps, criminal and disciplinary action, and a complaint mechanism with a Complaints Committee headed by a woman and including a third party.
- The guidelines were made under Article 32, are to be treated as law declared under Article 141, and are binding and enforceable in all work places until suitable legislation is enacted.
Why it matters
The judgment fills a legislative gap by judicial guidelines declared to be law under Article 141 and binding until Parliament legislates. It states the rule that international conventions consistent with fundamental rights may be read into them where domestic law is silent, and it defines sexual harassment at the work place and sets out the employer's duties and a complaints mechanism.
In the Court's words
Copied from the official judgment; each passage links to its page.
“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 of the constitutional guarantee. This is implicit from Article 51(c) and enabling power of the Parliament to enact laws for 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.”
“we lay down the guidelines and norms 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 of the Constitution.”
“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.”
Provisions interpreted
Related judgments
- Follows Nilabati Behera v. State of Orissa (1993)“In Nilabati Behera vs. State of Orissa 1993(2) SCC 746, a provision in the ICCPR was referred to support the view” (page 6)
- Followed in Vineet Narain v. Union of India (1997)
- Followed in Aruna Ramachandra Shanbaug v. Union of India (2011)
- Followed in Common Cause v. Union of India (2018)
Case and bench
- Parties
- Vishaka v. State of Rajasthan
- Case
- Writ petition under Article 32 of the Constitution (number not printed in the file)
- Decided
- 13 August 1997
- Bench
- Verma, CJI, Sujata V. Manohar, B. N. Kirpal
- Opinions
- Unanimous. Judgment delivered by Verma, CJI.
Questions on this case
8 questions in live Law Maker papers mention this case. A few from free papers:
Question 1 · Landmark Judgments Practice Set 1
In Vishaka v. State of Rajasthan (1997), in the absence of domestic law on sexual harassment at the workplace, the Supreme Court relied on which international convention when framing its guidelines?
- A. Convention on the Rights of Persons with Disabilities
- B. Convention on the Elimination of All Forms of Discrimination against Women
- C. Convention on the Rights of the Child
- D. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
Show the answer
B. Convention on the Elimination of All Forms of Discrimination against Women
The Court read the guarantees in Articles 14, 15, 19(1)(g) and 21 in the light of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), quoting its Articles 11 and 24, and laid down guidelines to be treated as law under Article 141 until legislation was enacted.