POSH (Part-4(a))

1.  Equality before law (Article 14)

This Article guarantees every person the right to equality before the law and equal protection of the laws and has been interpreted as a prohibition against unreasonable classification.

b. Prohibition of Discrimination on Grounds of religion, race, caste, sex, or place of birth (Article 15)

According to Article 15(1), the state shall not discriminate on grounds of religion, race, caste, sex, or place of birth or any of them.

Article 15(3) has largely been interpreted as an exception to the principle of non-discrimination guaranteed by Article 15(1). Article 15(3) provides that the state is authorized to make special treatment for women and children and discriminate in favour of them. Under this provision, the state can take progressive measures to protect women from violence and sex discrimination including acts of sexual harassment.

In Government of Andhra Pradesh v. P.B. Vijay Kumar, the court noted the purpose of article 15(3) by stating that “The insertion of clause (3) of Article 15 in relation to women is a recognition of the fact that for centuries, women of this country have been socially and economically handicapped. As a result, they are unable to participate in the socio-economic activities of the nation on a footing of equality. It is to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women that Article 15(3) is placed in Article 15. Its object is to strengthen and improve the status of women. An important limb of this concept of gender equality is creating job opportunities for women. To say that under Article 15(3) job opportunities for women cannot be created would be to put at the very root of the underlying inspiration behind this Article. Making special provisions for women in respect of employment or posts under the State is an integral part of Article 15(3). This power conferred under Article 15(3), is not whittled down in any manner by Article 16.”

“Both Articles 15 and 16 are designed for the same purpose of creating an egalitarian society. As Thommen, J. has observed in Indra Sawhney’s case (supra) (although his judgment is a minority judgment), “Equality is one of the magnificent cornerstones of Indian democracy”. We have, however, yet to turn that corner. For that purpose it is necessary that Article 15(3) be read harmoniously with Article 16 to achieve the purpose for which these Articles have been framed.”

c. Equality of Opportunity in Matters of Public Employment (Article 16)

The main object of Article 16 is to create a constitutional right in equality of opportunity and employment in public offices. Articles 15 and 16 are instances of the same right in favour of citizens in some special circumstances.

Article 16(2) prohibits discrimination on the ground of sex in matters of public employment.

Discrimination on the ground of sex is prohibited under the constitution by a combined reading of the provisions of the “equality code” with Articles 15 and 16 interpreted as facets of Article 14. In State of Kerla v. N.M. Thomas, the Supreme Court of India addressed the question of the appropriate relationship between Articles 14, 15, and 16, holding that Articles 15 and 16 of the Indian Constitution must be seen as facets of Article 14 rather than exceptions to it.

Sexual Harassment in the workplace is a form of gender-based discrimination, impeding women’s ability to engage in their professional activities on an equitable basis with men. The Vishaka judgment and subsequent decisions of the court also acknowledge the impact of such discrimination. Within the framework of gender equality, safeguarding individuals from sexual harassment and upholding the right to work with dignity are integral components, reflecting universally acknowledged fundamental human rights.

d. Right to practice any profession, or to carry on any occupation, trade, or business (Article 19(1)(g)).

All citizens of the country have the right to practice any profession, or to carry on any occupation, trade, or business. Sexual Harassment at the Workplace is a Violation of the Right to Work under Art. 19(1) (g) of the Indian Constitution.

The Supreme Court in Vishaka & Ors vs State of Rajasthan & Ors on 13 August, 1997 held that each incident sexual harassment results in violation of the fundamental rights of ‘Gender Equality’ and the ‘Right of Life and Liberty’. One of the logical consequences of such an incident is  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’. 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. 

e. No person shall be deprived of his life or personal liberty except according to procedure established by law. (Article 21)

The right to life implies the right to live with human dignity and includes those aspects of life that make life meaningful and worth living. Gender discrimination is an obstacle to the full realization of this right. The state has an obligation to eliminate gender-based discrimination and to create conditions and facilities conducive for women to realize their right to economic development while enjoying social and cultural rights. However, in the absence of existing protective mechanisms, the court in the Vishaka case evolved guidelines prescribing sexual harassment at the workplace as a violation of women’s fundamental rights under Articles 14,19, and 21.

In Apparel Export Promotion Council v. A.K. Chopra, the Supreme Court declared the sexual harassment of women is unquestionably incompatible with dignity and honour of women.

In addition to the above provisions in our constitution, we as nation, are also a participating State to the Convention on Elimination of All forms of Discrimination (CEDAW), which requires all State parties to take appropriate measures to eliminate discrimination against women in field of employment. In its General Recommendation, the United Nations Committee on CEDAW clarified that equality in Employment can be seriously impaired when women are subjected to gender-specific violence such as sexual harassment at workplace. The obligation of India under various international treaties are unequivocal.