The Vishakha judgment was crucial in forming the sexual harassment laws in India. Its a landmark case. What really led to the judicial activism that this decision represents and how did the law come to be like this? Read on to understand.

In this blogpost, Shubham Kumar,  Law Student, writes about the role of International Conventions in vishaka guidelines stating the facts, law, issues and analysing the case.

General Details of the Case

Name- Vishaka and Ors. vs. State of Rajasthan and Ors.

Citation-1997 (6) SCC 241

Bench- Justice JS Verma(CJ), Justice Sujata V Manohar and Justice BN Kirpal.

Facts of the Case

The writ petition in the present case was filed by Vishaka, a women’s rights group for the enforcement of Fundamental rights of working women under Article 14, 19, 21 of the Constitution of India. The immediate reason for filing this writ petition is an incident during 1990s wherein Bhanwri Devi, a social worker (State Government employee) was brutally gang raped when she tried to prevent a child marriage which was a part of her duty as a worker of Women Development Programme. The feudal patriarchs who were enraged by her ‘guts’ decided to teach her a lesson and raped her repeatedly, to show their superiority over a woman of low caste. The Rajasthan High Court acquitted the accused rapists who belonged to rich, affluent and powerful upper caste families. This incident led to a nationwide protest specifically from women’s rights group called Vishaka, who ultimately filed a PIL in the Supreme Court to address the issues related to the sexual harassment to which a working woman may be exposed to.

Law

Constitution of India

• Article 14 (the right to equality)
• Article 15 (the right to non discrimination)
• Article 19(1)(g) (the right to practise one’s profession)
• Article 21 (the right to life)

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

• Article 11 ([State] takes all appropriate measures to eliminate discrimination against women in the field of employment)
• Article 24 ([State shall] undertake to adopt all necessary measures at the national level aimed at achieving the full realization)

Major Issues in Contention

• Whether cases of harassment violate the fundamental rights of women under Article 14, 15, 19(1)(g) and 21?
• To provide safeguards against the hazards to which working women may be exposed to.
• Whether in the absence of legislative measure the court could apply the international laws to fulfil this felt and urgent societal need

Analysis of the Case

The main aim of this petition was to focus our attention towards such a societal aberration, wherein the women are subjected to sexual harassment at workplace and assisting in finding the suitable methods for realisation of true concept of ‘gender equality’ and to fill the grey area in law, wherein no such legislation exists that addresses the above mentioned concerns. The Supreme Court iterated that each such incidents of harassment at the workplace to women violated the Fundamental Rights of women i.e. “Right to Gender Equality” and “Right to Life and Personal Liberty”.  Incidents like these are not only against the Fundamental Rights guaranteed under Article 14, 15, 21 rather they also violate the victim’s fundamental right under Art. 19 (1)(g) i.e Right to practice any profession or to carry out any occupation, trade or business. These fundamental rights depend on the availability of safe and secure working environment for women.

Role of International Conventions in “Vishaka Guidelines”

The Supreme Court held that violation of the abovementioned Fundamental Rights attracted remedy under Article 32. Supreme Court further said that an effective redressal requires some interim guidelines be laid down for the protection of these rights, to fill the legislative vacuum, till the legislatures come up with a comprehensive legislation to deal with the same.

One of the major contentions involved in this case was related to the ambiguous definition of “Sexual Harassment”. Since there existed no domestic law to check and provide remedial measures against such draconian act of sexual harassment of working women at all workplaces, the Supreme Court entered into the realm of contents of International Conventions and norms for the purpose of clear and unambiguous interpretation of gender justice, gender equality, gender discrimination and gender-based sexual harassment.

As per the provisions of Article 51 and Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Indian Constitution, any International Convention not inconsistent with the Part III of the Indian Constitution must be read to enlarge the meaning and content thereof, to promote the object of Constitutional guarantee. Governance of the society by the rule of law mandates this requirement as logical concomitant of the constitutional scheme.

The Court iterated that as per universal acceptance ‘Gender equality’ construes protection from sexual harassment and right to work with dignity. The court referred to the role of judiciary envisaged in the Beijing Statement of Principles of the Independence of the judiciary in the 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.

Since there existed no domestic law to check and provide remedial measures against Harassment of women at workplace hence Judiciary laid down certain rules and guidelines, known as Vishaka Guidelines, these guidelines were in consonance with the International conventions and treaties regarding gender equality. One such convention was ‘Convention on the Elimination of All Forms of Discrimination against Women’, whereby every signatory to it has to take steps in order to eradicate discrimination against women. Supreme Court emphasised on Article 11 – Article 24 of the convention in order to frame the guidelines. Article 11, states that the State Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular –

• right to work
• right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction

The general recommendations of Article 11 are that equality in employment can be seriously impaired when women are subjected to gender specific violence, such as sexual harassment at work place; hence, States should take all the necessary measures to protect women from sexual harassment and other forms of violence of coercion in the workplace.

Article 24 states that “State 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.”

India ratified this resolution with some reservations in 1993, whereby India made official commitment, inter alia, to formulate and operationalize a national policy on women which will continuously guide and inform action at every level and in every sector:

1. To set up a Commission for Women’s to act as a public defender of women’s human rights;
2. To institutionalise a national level mechanism to monitor the implementation of the Platform

SC relied upon these commitments for the purpose of construing the nature and ambit of the constitutional guarantee of gender equality in our Constitution.  SC further said that the content of Fundamental Right is such that it can encompass all the facets of gender equality including prevention of sexual harassment or abuse. The international conventions 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.

The doctrine of Legitimate expectation[1] was applied in the case of Nilabati Behera v. State of Orissa[2], 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 Art. 32, distinct from the private law remedy in torts. Hence, SC had no reason not to accept the 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 gender equality in all spheres of human activity.

Conclusion

In view of the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at workplaces, SC laid down the guidelines and  stated that the guidelines are to be treated as a declaration of law in accordance with Article 141 of the Constitution until the enactment of appropriate legislation and that the guidelines do not prejudice any rights available under the Protection of Human Rights Act 1993.  This was done in exercise of the power available under Art.32 of the Constitution for enforcement of the fundamental rights. These guidelines are now known as Vishaka Guidelines and this landmark judgment delivered by Justice JS Verma-led the legislatures to enact a new legislation ­­­­­­known as Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 in order to guarantee protection to all women from sexual harassment at workplaces.

References

• Beijing Statement of Principles of the Independence of the judiciary in the LAWASIA region
• Convention on the Elimination of All Forms of Discrimination against Women,1981
• Protection of Human Rights Act 1993
• Malcolm N. Shaw – International Law, Oxford UK, 6th edition 2008,

[1] The High Court of Australia in Minister for Immigration and Ethnic Affairs V. Teoh, 128 ALR 353.

[2] (1993) 2 SCC 746 : (1993 AIR SCW 2366).