2 November 2012 

The Supreme Court of India has held that some state governments need to do more to adequately protect women from sexual harassment in the workplace. In a judgment dated 19 October 2012, which strongly emphasises India’s Constitutional commitment to gender equality and a “guarantee against sexual harassment to women”, the Court has sought to ensure that women’s rights to a dignified life, equality and practice of any profession are protected. 

The Court, noting the absence of specific legislation regarding sexual harassment in the workplace, has instructed states to apply the Vishaka Guidelines of 1997, which oblige employers and state bodies to prevent or deter acts of sexual harassment. The Court has given states which are currently falling short two months to take measures to comply with the Guidelines. In doing so, the Court emphasised that the Guidelines are more than just symbolic and fill a gap in the legislative protection of women’s fundamental rights.  

The case arose when Medha Kotwal Lele, coordinator of a centre for documentation and research on women and other women’s rights groups, together with others, petitioned the Court highlighting a number of individual cases of sexual harassment and arguing that the Vishaka Guidelines were not being effectively implemented. In particular, the petitioners argued that women continued to be harassed in the workplace. They alleged that the Guidelines were being breached in both spirit and substance by state functionaries who were harassing female workers, making them suffer and insulting their dignity.  

In reaching its decision that some states were falling short of their obligations, the Court relied both on the Constitution of India and the Beijing Platform for Action, highlighting India’s obligations to protect women’s fundamental human rights. It noted that the Beijing Platform for Action recognised that “violence against women both violates and impairs or nullifies the enjoyment by women of human rights and fundamental freedoms” and that the Constitution requires the state’s commitment to “gender equality and guarantee against sexual harassment to women”. 

The Court stated that, in order to comply with these requirements, women had to be able to work with dignity, decency and due respect, and in order to ensure this the Vishaka Guidelines had to be implemented in form, substance and spirit by states. It found that a number of states were falling short in this regard. Reiterating that there is an obligation to prevent all forms of violence, the Court stated that “lip service, hollow statements and inert and inadequate laws with sloppy enforcement are not enough for true and genuine upliftment of our half most precious population – the women”. 

The Court directed the relevant states to bring themselves into compliance with the Vishaka Guidelines within two months. Specifically, it directed that they: make the requisite changes to a number of conduct rules and procedures; that they ensure there is an adequate and female-led complaints mechanism; that state functionaries put in place Vishaka Guideline compliant mechanisms for the workplace; and that a number of other bodies follow the Guidelines. The Court stated that, in the event of non-compliance with the Vishaka Guidelines and/or the Court’s orders, aggrieved persons should approach the High Court of the state concerned. 

The Court’s judgment is to be welcomed for providing important protection to women at a time when the Protection of Women against Sexual Harassment at Workplace Bill 2010 – passed by the Lok Sabha (lower house of Parliament) in September 2012 – is pending adoption by the Rajya Sabha (upper house). However, as the Court itself acknowledges, what is needed is clear legislation on the subject. With this in mind, it is hoped that the aforementioned Bill will receive Parliament’s urgent attention and that Parliament will close a gap in protection which has now been criticised for decades. 

For an ERT case summary click here 

To read the Supreme Court’s decision click here   

To read the Vishaka Guidelines click here

To read the Protection of Women against Sexual Harassment at Workplace Bill 2010 click here