Vishaka v. State of Rajasthan

The case arose from the gang rape of Bhanwari Devi, a social worker in Rajasthan, allegedly in retaliation for her work opposing child marriage in her village. Vishaka, a women's rights group, along with other organisations, petitioned the Supreme Court not just for justice in that specific case but for a broader remedy: at the time, there was no Indian law addressing sexual harassment at the workplace at all.

Facts

The petitioners argued that the complete legislative vacuum on workplace sexual harassment left working women without any enforceable protection, in violation of their fundamental rights to equality, to practise any profession, and to life and personal liberty. The petition asked the Court to lay down guidelines for employers, since Parliament had not yet legislated on the subject.

Legal issues

• Whether sexual harassment at the workplace violates the fundamental rights to equality (Article 14), to practise any profession (Article 19(1)(g)), and to life and dignity (Article 21).
• Whether the Supreme Court could, in the absence of domestic legislation, draw enforceable guidelines from international conventions India had ratified, such as CEDAW.
• What preventive and remedial mechanism employers should be required to put in place until Parliament legislated on the subject.

Decision

The Court held that sexual harassment at the workplace violates the fundamental rights to equality and dignity, and — invoking its power under Article 32 to enforce fundamental rights, and Article 141's provision that Supreme Court decisions bind all courts — laid down a detailed set of guidelines, since known as the Vishaka Guidelines, to be treated as binding law until Parliament enacted legislation.

In the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment, we lay down the guidelines and norms specified hereinafter for due observance at all workplaces.Vishaka v. State of Rajasthan, AIR 1997 SC 3011

Reasoning

The Court reasoned that a legislative vacuum could not be allowed to leave a fundamental right unenforced, and that Article 51(c) of the Constitution — a directive principle encouraging respect for international law — permitted it to draw on India's obligations under the Convention on the Elimination of All Forms of Discrimination Against Women to give content to the rights already guaranteed under Articles 14, 19 and 21. The guidelines required employers to establish complaints committees, define what constitutes harassment, and put in place preventive measures, treating this as a direct application of constitutional rights rather than a substitute for legislation.

Significance

The Vishaka Guidelines governed workplace sexual harassment in India for over fifteen years, until Parliament finally enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which codified and expanded on them. The case is also cited well beyond its subject matter as the clearest Indian example of the Supreme Court using Article 32 to legislate a stopgap remedy for a fundamental right that would otherwise have gone completely unenforced.