VISHAKA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) -This writ petition has been filed for the enforcement of the fundamental rights of working women under Arts. 14, 19 and 21 of the Constitution of India in view of the prevailing climate in which the violation of these rights is not uncommon. With the increasing awareness and emphasis on gender justice, there is increase in the effort to guard against such violations; and the resentment towards incidents of sexual harassment is also increasing. The present petition has been brought as a class action by certain social activists and NGOs with the aim of focussing attention towards this societal aberration, and 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.

(2.) The immediate cause for the filing of this writ petition is an incident of alleged brutal gang rape of a social worker in a village of Rajasthan. That incident is the subject-matter of a separate criminal action and no further mention of it, by us, is necessary. The incident reveals 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. In the absence of legislative measures, the need is to find an effective alternative mechanism to fulfil this felt and urgent social need.

(3.) Each such incident results in violation of the fundamental rights of Gender Equality and the Right to Life and Liberty. It is a clear violation of the rights under Arts. 14, 15 and 21 of the Constitution. One of the logical consequences of such an incident is also the violation of the victims fundamental right under Art. 19(1)(g) to practice any profession or to carry out any occupation, trade or business. Such violations, therefore, attract the remedy under Art. 32 for the enforcement of these fundamental rights of women. This class action under Art. 32 of the Constitution is for this reason. A writ of mandamus in such a situation, if it is to be effective, needs to be accompanied by directions for prevention; as the violation of fundamental rights of this kind is a recurring phenomenon. 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. When, however, instances of sexual harassment resulting in violation of fundamental rights of women workers under Arts. 14, 19 and 21 are brought before us for redress under Art. 32, an effective redressal requires that some guidelines should be laid down for the protection of these rights to fill the legislative vacuum.