1997 (8) TMI 456 - SC - Indian Laws

Enforcement of the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India - Held that - In the absence of enacted law to provide fro 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 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. It shall be the duty of the employer or other responsible persons in work places 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.Where such conduct amounts to mis-conduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules. 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. 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 suitable manner. 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.These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.

Summary

Issues Involved:
1. Enforcement of Fundamental Rights
2. Legislative Vacuum and Judicial Intervention
3. International Conventions and Domestic Law
4. Guidelines for Prevention of Sexual Harassment

Issue-wise Detailed Analysis:

1. Enforcement of Fundamental Rights:
The writ petition was filed for the enforcement of fundamental rights of working women under Articles 14, 19, and 21 of the Constitution of India. The petition highlighted the increasing awareness and emphasis on gender justice and the need to guard against violations of these rights. The petition was brought as a class action by social activists and NGOs to focus on the issue of sexual harassment at workplaces and to find judicial remedies in the absence of specific legislation. The court recognized that each incident of sexual harassment results in a violation of the fundamental rights of gender equality and the right to life and liberty, as well as the right to practice any profession or occupation under Article 19(1)(g).

2. Legislative Vacuum and Judicial Intervention:
The immediate cause for the filing of the writ petition was an alleged brutal gang rape of a social worker in Rajasthan, which underscored the hazards faced by working women and the need for safeguards. The court noted the absence of legislative measures to effectively address sexual harassment and emphasized the need for an alternative mechanism. The court acknowledged its responsibility under Article 32 to enforce fundamental rights and laid down guidelines to fill the legislative vacuum, emphasizing that the right to a safe working environment is integral to the right to life with dignity.

3. International Conventions and Domestic Law:
The court referred to various constitutional provisions, including Articles 15, 42, 51A, 51, and 253, to justify judicial intervention. The court highlighted the significance of international conventions and norms, such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), in interpreting the constitutional guarantees of gender equality and the right to work with dignity. The court noted that in the absence of domestic law, international conventions should be read into the constitutional provisions to promote the object of gender equality. The court also referred to the Beijing Statement of Principles of the Independence of the Judiciary and the objectives of the judiciary to promote human rights and administer the law impartially.

4. Guidelines for Prevention of Sexual Harassment:
The court laid down detailed guidelines and norms for the prevention of sexual harassment at workplaces, which include:
- Duty of Employer: Employers and responsible persons at workplaces must prevent and deter acts of sexual harassment and provide procedures for resolution, settlement, or prosecution of such acts.
- Definition: Sexual harassment includes unwelcome behavior such as physical contact, sexual advances, sexually colored remarks, showing pornography, and other unwelcome conduct of a sexual nature.
- Preventive Steps: Employers must express prohibition of sexual harassment, include such prohibitions in rules and regulations, and provide appropriate work conditions to prevent a hostile environment.
- Criminal Proceedings: Employers must initiate appropriate action for specific offenses under the Indian Penal Code and ensure that victims and witnesses are not victimized.
- Disciplinary Action: Employers must initiate disciplinary action for misconduct related to sexual harassment as defined by service rules.
- Complaint Mechanism: Employers must create an appropriate complaint mechanism for redressal of complaints, ensuring time-bound treatment.
- Complaints Committee: A Complaints Committee should be established, headed by a woman, with at least half of its members being women, and involving a third party familiar with the issue of sexual harassment.
- Workers' Initiative: Employees should be allowed to raise issues of sexual harassment at meetings and other forums.
- Awareness: Employers must create awareness of the rights of female employees and prominently notify the guidelines.
- Third-Party Acts: Employers must take necessary steps to assist affected persons in cases of sexual harassment by third parties or outsiders.
- Legislation: The Central/State Governments are requested to consider adopting suitable measures, including legislation, to ensure compliance with the guidelines in the private sector.
- Human Rights Act: These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.

The court directed that these guidelines and norms be strictly observed in all workplaces for the preservation and enforcement of the right to gender equality of working women. The directions are binding and enforceable in law until suitable legislation is enacted. The writ petitions were disposed of accordingly.