October 2, 2022

The case of Vishaka when court laid down guidelines to protect women at workplace

In this case, a writ petition was filed for the enforcement of the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India. The immediate cause for the filing of this writ petition was an incident of alleged brutal gang rape of social worker in a village of Rajasthan. The incident revealed 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.

Therefore, the present petition was brought as a class action by certain social activists and NGOs with the aim of

  • 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.

Violation of Constitutional Provisions

The court noted that each such incident results in-

  • violation of the fundamental rights of ‘Gender Equality’ and the ‘Right of Life and Liberty’.
  • It is clear violation of the rights under Articles 14, 15 and 21 of 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 practice 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.

Right to life also include life with dignity

The court further said that-

  • 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.

Constitutional Provisions

Apart from Article 14, 19(1)(g) and 21, there are also other provisions which have relevance in this regard-

Article 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 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: 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. 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.

International conventions and Norms

Although, International conventions are not binding but they have important relevance when there is void in the law.

Many provisions of our constitution permit the use of International Conventions which may be referred here-

Article 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 people with one another”

Article 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.

Significance of the International Norms

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.

The court had the view that 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 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 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 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.

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 o make their fundamental rights meaningful. Governance of the society by the rule of law mandates these requirements as a logical concomitant of the constitutional scheme.”

Conference on women

At the Fourth World Conference on Women in Beijing, the Government of India has 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 institutionalise a national level mechanism to monitor the implementation of the Platform for Action.

Sum up of above discussion

The court said that the meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to compass 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 the absence of enacted domestic law occupying the fields 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.

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 work places, the court laid down the guidelines and norms for due observance at all work places or other institutions, until a legislation is enacted for the purpose.

This was done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it was further emphasised that this would be treated as the law declared by this Court under Article 141 of the Constitution.

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