The petition was brought as public interest litigation by social activists and NGOs in order to address violations of the rights of working women in India, as enshrined in the Constitution of India in Articles 14 (equality before the law), 19 (right to practice any profession or to carry out any occupation, trade or business) and 21 (protection of life and personal liberty). Although the immediate case was in response to the gang rape of a social worker in a village in Rajasthan, the petitioners were responding to the wider issue of sexual harassment towards working women and the subsequent lack of gender equality.
The action stemmed from the lack of legislative protection for the rights of working women as enshrined in India’s constitution to the extent that practical protection and enforcement was not possible. The court, in the absence of such legislation, was petitioned to provide alternative legal protection for the rights of working women until legislation could be drafted and passed. The State and Union of India did not object to the provision of guidelines in relation to the issue and provided assistance in the proceedings in order to address the matter.
In considering the issue, the court recognized the lack of protection afforded to working women, indicating that “the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places” and noting the need for guidelines until proper legislation could be enacted. The court stated that there was a need for “‘safe’ working space” which was at the time lacking.
The Court further recognized that India’s international obligations must be read into domestic provisions, so long as they were consistent with fundamental rights and of a harmonious spirit. The silence on the topic in Indian domestic legislation meant that international agreements and conventions were “significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity… and the safeguards against sexual harassment implicit therein.”
While noting that the legislature and the executive are primarily responsible for creating legislation and mechanism for the enforcement of such laws, the court stated that when “instances of sexual harassment resulting in violation of fundamental rights of women workers… are brought before us for redress… an effective redressal requires that some guidelines should be laid down for the protection of those rights to fill the legislative vacuum.” The court also referenced the role of the judiciary under the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region, setting forth the minimum standards for maintaining judicial independence and effectiveness.
The Court noted that the violations under Articles 14, 19 and 21attracted a remedy under Article 32 for the enforcement of such rights. The court recognized that, to ensure enforcement of such rights further, there needed to be directions to prevent such violations as well as the provision of a remedy for violations which have occurred.
The court also highlighted additional articles of the Constitution which were relevant to the rights of working women, namely Article 15 (prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth), Article 42 (provision for just and humane conditions of work and maternity relief), Article 51A (fundamental duties), Article 51 (promotion of international peace and security) and Article 253 (Legislation for giving effect to international agreements).
The Court recognized that 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.” The Court then set forth guidelines on sexual harassment in the work place, which were to be observed at all work places and other institutions until legislation was enacted on this issue. The guidelines set forth by the Court required employers to prevent sexual harassment in the workplace, establish procedures to address sexual harassment, initiate criminal proceedings when appropriate, initiate disciplinary action where required, create a complaints procedure and system, and support women who experience sexual harassment by a third party or outsider. The court declared such guidelines should be “strictly observed in all work places for the preservation and enforcement of the right to gender equality of the working women” and that the guidelines were “binding and enforceable in law until suitable legislation is enacted to occupy the field.”