VERMA, C.J. – 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 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 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 workplaces through judicial
process, to fill the vacuum in existing legislation.
2. The immediate cause for the filing of this writ petition is an incident of alleged brutal
gang rape of a social worker in a village of Rajasthan. That incident is the subject-matter of a
separate criminal action and no 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 absence of legislative measures, the need is to find an
effective alternative mechanism to fulfil this felt and urgent social need.
3. 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 fundamental right under Article 19(1)(g) “ to practise any profession
or to carry out any occupation, trade or business ”. Such violations, therefore, attract the
remedy under Article 32 for the enforcement of these fundamental 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 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 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 workers 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.
5. 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 Articles 14, 19(1)(g) and 21, which have
relevance are:
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Article 15 :
“15. Prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth.-(1) The State shall not discriminate against any citizen on grounds
only of religion, race, caste, sex, place of birth or any of them.
(3) Nothing in this article shall prevent the State from making any special
provision for women and children.”
Article 42 :
“42. Provision for just and humane conditions of work and maternity relief .-
The State shall make provision for securing just and humane conditions of work and
for maternity relief.”
Article 51A :
“51-A. Fundamental duties .—It shall be the duty of every citizen of India –
(a) to abide by the Constitution and respect its ideals and institutions, …;
(e) to promote harmony and the spirit of common brotherhood amongst all the
people of India transcending religious, linguistic and regional or sectional diversities;
to renounce practices derogatory to the dignity of women;”
6. 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 provisions in the Constitution which permit such
use. These provisions are:
Article 51:
“51. Promotion of international peace and security.-The State shall endeavour
to-
(c) foster respect for international law and treaty obligations in the dealings of
organised peoples with one another; * * *”
Article 253:
“253. Legislation for giving effect to international agreements.-
Notwithstanding 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.”
Seventh Schedule :
“List I – Union List
14. Entering into treaties and agreements with foreign countries and
implementing of treaties, agreements and conventions with foreign countries.”
7. 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 workplaces, the contents of
international conventions and norms are significant for the purpose of interpretation of the
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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. 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 the
enabling power of 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. 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, therefore, available till Parliament enacts legislation to
expressly provide measures needed to curb the evil.
8. 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 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 performance of this difficult task in public
interest.
9. 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 others at the workplaces to curb this social evil.
10. 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 acceptance. The international conventions and
norms are, therefore, of great significance in the formulation of the guidelines to achieve this
purpose.
11. 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 Independence of the
Judiciary in the LAWASIA region. These principles were accepted by the Chief Justices of
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:
“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.”
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12. Some provisions in the “Convention on the Elimination of All Forms of
Discrimination against Women”, of significance in the present context are:
Article 11:
“1. States 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:
(a) The right to work as an inalienable right of all human beings;
(f) The right to protection of health and to safety in working conditions,
including the safeguarding of the function of reproduction.
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.”
13. The general recommendations of CEDAW in this context in respect 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 workplace.
23. Sexual harassment includes such unwelcome sexually determined 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 discriminatory when the woman
has reasonable grounds to believe that her objection would disadvantage her in
connection with her employment, including recruiting or promotion, or when it
creates a hostile working environment. Effective complaints, procedures and
remedies, including compensation, should be provided.
24. States should 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 workplace.”
The Government of India has ratified the above Resolution on 25-6-1993 with some
reservations which are not material in the present context. At the Fourth World Conference on
Women in Beijing, the Government of India has also made an 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; to set up a Commission for Women’s
Rights to act as a public defender of women’s human rights; to institutionalize a national level
mechanism to monitor the implementation of the Platform for Action. We have, therefore, no
hesitation in placing reliance on the above for the purpose of construing the nature and ambit
of constitutional guarantee of gender equality in our Constitution.
14. The meaning and content of the fundamental rights guaranteed in the Constitution of
India are of sufficient amplitude to encompass all the facets of gender equality including
prevention of sexual harassment or abuse. Independence of judiciary forms a part of our
constitutional scheme. The international conventions and norms are to be read into them in
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the absence of enacted domestic law occupying the field when there is no inconsistency
between them. It is now an accepted rule of judicial construction that regard must be had to
international conventions and 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 Affairs v. Teoh, 128 Aus LR 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 Rights in the Constitution of Australia.
15. 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 gender
equality in all spheres of human activity.
16. In view of the above, and 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, we lay
down the guidelines and norms specified hereinafter for due observance at all workplaces 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.
17. The GUIDELINES and NORMS prescribed herein are as under:
HAVING REGARD to the definition of “human rights” in Section 2(d) of the
Protection of Human Rights Act, 1993,
TAKING NOTE of the fact that the present civil and penal laws in India do not
adequately provide for specific protection of women from sexual harassment in
workplaces and that enactment of such legislation will take considerable time,
It is necessary and expedient for employers in workplaces 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 workplaces and other
institutions:
It shall be the duty of the employer or other responsible persons in workplaces or
other institutions to prevent or deter the commission 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:
For this purpose, sexual harassment includes such unwelcome sexually
determined behaviour (whether directly or by implication) as:
(a) physical contact and advances;
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(b) a demand or request for sexual favours;
(c) sexually-coloured remarks;
(d) showing pornography;
(e) any other unwelcome physical, verbal or non-verbal conduct of sexual
nature.
Where any of these acts is committed in circumstances whereunder the victim of
such conduct has a reasonable apprehension that in relation to the victim’s
employment or work whether she is drawing salary, or honorarium or voluntary,
whether in government, public or private enterprise such conduct can be humiliating
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 or raises any objection thereto.
3. Preventive steps:
All employers or persons in charge of workplace whether in the public or private
sector should take appropriate steps to prevent 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 workplace
should be notified, published and circulated in appropriate ways.
(b) The rules/regulations of government and public sector bodies relating to
conduct and discipline should include rules/regulations prohibiting sexual harassment
and provide for appropriate penalties in such rules against the offender.
(c) As 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 of work, leisure,
health and hygiene to further ensure that there is no hostile environment towards
women at workplaces and no woman employee 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:
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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.
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 maintenance of confidentiality.
The Complaints Committee should be headed by a woman and not less than half
of its members should be women. Further, to prevent 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 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 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 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 (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 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 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.
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18. Accordingly, we direct that the above guidelines and norms would be strictly
observed in all workplaces 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.
