Social Action for Women?
Public Interest Litigation in India’s Supreme Court
Department of Sociology
This is a refereed article published on: 8 November 2002
Citation: Dasgupta M, ‘Social Action for Women? Public Interest Litigation in India’s Supreme Court’, Law, Social Justice & Global Development Journal (LGD) 2002 (1)
The Indian Supreme Court claims Public Interest Litigation can and does effectively protect the rights of women. This is said to be accomplished through a number of innovations, the most important being an extremely liberal interpretation of the Constitution’s fundamental rights to life and equality (read to include gender equality and life with individual dignity and liberty), and the relaxation of the rules of standing. This allows those persons or groups not personally involved in cases to bring suit on behalf of others. India has pioneered this system, and I argue that though the court is limited in its abilities to promote and create social change, it’s efforts in this unique endeavour have led to a greater awareness of women’s issues and also an increase in gender based social action. Along with discussions on issues surrounding the practice of public interest litigation, its history, and past policy and legislation on women, I examine in detail, cases that have come to the Indian Supreme Court as Public Interest Litigations regarding certain crucial issues effecting women. Specifically, I focus this study on the areas of rape, sexual harassment, and prostitution. This paper results from a year of fieldwork in India, and relies on interviews with activists, scholars, petitioners, and legal professionals as well as extensive archival work.
Keywords: India, Women, Public Interest Litigation, Social Action, Judicial Activism.
In March of 1972, a sixteen year old girl named Mathura was taken to the neighbourhood police station by her brother and some other members of her family. They were concerned because she was underage and attempting to elope with her boyfriend. They wanted abduction charges brought against him. The two policemen in the station asked to talk to Mathura alone while they took her statement. The two officers then raped her while her family waited outside.
More than two years later, a sessions judge acquitted the two accused on the grounds that Mathura was a ‘shocking liar’ who was already ‘habituated to sexual intercourse,’ and so could not prove that she did not give consent. On appeal, the Bombay High Court reversed the previous order, and sentenced the two officers each to six years in prison. And finally in 1979, the Supreme Court overturned the High Court’s decision, saying that she had not struggled enough or caused enough of a commotion, and so could not prove that she did not consent. The evidence for the case had been collected through the police station in which the crime had been committed. The outcome of the case caused uproar in India. A slew of protests helped raise demands for more stringent rape laws, and caused the Government of India to enact the Criminal Law Amendment of 1983, which significantly amended the rape section of the Indian Penal Code. More importantly, the furore surrounding the case ruling helped to create the Indian anti-rape campaign, which has been the most influential movement for women’s rights in India (Epp, 1998, Sen, 1998, Kishwar, 1999, Kumar, 1999).
The most significant result of the Mathura case1, however, was the realisation on the part of many of the justices on the Supreme Court of India that social justice for women had to become one of its key priorities. The final ruling in the Mathura case in 1979 coincided nicely with a new direction that the court was taking; it was in the early stages of the newly developed practice of public interest litigation. The Indian Supreme Court’s practice of this form of litigation joined with the new realisation that the Court should take an active interest in the rights of women, helped to create a new venue for social action for the women of India.
India has used both the legislative and judicial systems to advance legal innovations that espouse women's rights, human rights and social justice. This article examines how the higher judiciary has utilised its powers, in particular through public interest litigation, to encourage change for women. The inclusion of gender, or more specifically, of women as a development issue is especially salient in the Indian case. Women in India have historically been particularly disadvantaged in a number of different ways. For instance, India has for many years had the dubious distinction of having one of the lowest female to male ratios in the world, outdoing even Bangladesh, China, and Sub-Saharan Africa in this respect. Most development literature on India currently includes at least some mention of the appalling degree of ‘female disadvantage’. This is a catchall classification that usually includes illiteracy, low levels of education, healthcare, life expectancy, status, and autonomy. These levels are low compared to women in most of the rest of the world and in relation to Indian men. In the pursuit of higher levels of socio-economic development in the Indian context, the uplift of women has long been an important and notable consideration by the Indian government, The United Nations, The World Bank, and most NGOs. The Indian Supreme Court has also participated in these efforts, particularly in its practice of public interest litigation. The Supreme Court of India has touted Public Interest Litigation (PIL), also sometimes called Social Action Litigation (Baxi, 1987), as an effective tool for protecting the rights of the disadvantaged, especially women. While this litigation is the judicial equivalent of class action suits in the United States, there are important differences. The Indian Court specifically has focused on the fundamental rights to life and equality. Fundamental rights guaranteed to all Indian citizens include life and equality. The Supreme Court has interpreted these two rights to include the right to gender equality and the right to live with individual dignity and liberty. Procedurally, the Court’s practice of PIL has relaxed the rules of ‘standing’. It has effectively allowed persons or groups not personally involved in cases to bring suit on behalf of others, which makes for greater openness of the system.
India has pioneered this form of litigation, and I argue that PIL does give effective access to the Court and with that a public ‘voice’ to groups and individuals with neither the education nor the economic means to use the legal system to their own benefit. Even though the Court’s rulings are not always directly enforceable, it is of consequence that the Indian Supreme Court has undertaken gender equality cases as matters of public interest. Historically, gender discrimination in India has been both de jure and de facto. The Court, as far as it is able, has aided tremendously in eliminating legal forms of discrimination against women. Substantive justice remains elusive, but with the rulings of the Court and its social influence, significant strides are being made. Though courts are limited in their abilities to promote and bring about social change, I argue that this Court's efforts have led to greater awareness of certain women's issues and an increase in gender-based social action and activism.
2. What is Public Interest Litigation?
Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons...and such a person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application for appropriate direction…(Justice Bhagwati [as he then was] in S.P. Gupta v. Union of India)
The Indian Supreme Court thus took what seemed to be merely a dismal social problem – lack of access to justice by the poor and oppressed – and used that problem as the springboard for an ingenious answer: to build upon the strong Indian tradition of voluntary social action by empowering volunteer representatives to approach the court on behalf of the poor and oppressed (Cunningham, 1987, 499).
In India, the term ‘public interest litigation’ carries with it a specific meaning. It refers to cases in which the Supreme Court or a High Court allows volunteer lawyers or citizen petitioners to bring a case on behalf of some victimised group that does not have sufficient means or access to legal services. The procedure is a simple one. A letter must be written and sent to the Supreme Court. Cases are financed completely by legal aid organisations and public interest advocates. In the past, beneficiary groups have included prisoners, injured farm workers, the homeless, the Bhopal Union Carbide disaster survivors, victims of police brutality, residents of women’s shelters, and many others. Frequently, it is the court that actively invites (or induces) the cases to be brought to court, and in most cases there is no active involvement by the victims or would-be beneficiaries. Others have also engaged in initiating these cases, including professors, journalists, lawyers, and other citizen activists.
Public interest litigation is unique in that it promotes a proactive judiciary, and takes on large questions of policy (a rarity in the Indian legal professions). Inspired by the realisation that law was quickly becoming a profit-driven profession, and that most of India’s citizens could not afford legal representation, Justices Bhagwati and Krishna Iyer of the Supreme Court submitted a report on national juridicare in 1977, recommending the need for an extraordinary form of litigation. It was tailored specifically for the needs of India’s people. This was the beginning of public interest litigation, and it has flourished ever since. Typically, this form of litigation addresses the national government’s commitments to social welfare and aid to subordinate groups.
In 1977, immediately following India’s two-year period of Emergency Rule2, Justices Bhagwati and Krishna Iyer came forward with a recommendation for PIL. Some have argued that this was a direct response to the legitimation crisis suffered by the Indian government in the post-emergency period3. However, Rajeev Dhavan argues that this type of thinking was the fruit of an overdue ‘alliance of protest and thinking’ among India’s disadvantaged groups and its growing bevy of middle class intellectuals (Dhavan, 1994, 306)4. In the initial stages of PIL, the court listened to cases brought by almost anyone complaining of any injustice. That has now changed5, but what did come out of that trend was the liberalisation of the rules of standing or locus standi.
The relaxation of these rules6 is perhaps one of the most unique facets of Indian PIL, and it is instructive to look at how the same doctrine has operated in America. Known in the U.S. as the doctrine of ‘standing,’ locus standi rests squarely between the interests of the traditional private model of law and the public interest model. American law operates under the assumption that only those with a personal stake in a matter can be sufficiently motivated to present a good case to the court (Cassels, 1989, 498). In fact, the United States Supreme Court routinely uses the doctrine of standing to reject public interest lawsuits7, while in India the Supreme Court has quite consciously gone about relaxing the locus standi rules so that more PIL cases can be heard. This liberalised version of standing has been termed ‘representative standing’, and it allows any citizen to petition on behalf of another individual or group.
Clark Cunningham points out that representative standing can, in fact, be viewed as a
‘creative expansion of the well-accepted standing exception which allows a third party to file a habeas corpus petition on the ground that the injured party…cannot approach the court himself’ (Cunningham, 1987, 499).
The creativity is found in the extension of standing to represent people who were not simply physically restrained, but were realistically not ‘free’ to use the legal system because of socio-economic factors8. Within Indian PIL there are actually two types of standing that are considered legitimate by the courts. The second form - citizen standing - is, like representative standing, also a modification of the traditional doctrine of locus standi. One who petitions under citizen standing does not sue only as a representative of others, but is suing for the good of the public (Cunningham, 1987, 501). The reason for having citizen standing at all is not to serve the poor or disadvantaged, but to defend rights that are so ‘diffused’ among the general public that there are no applicable individual rights or laws that would otherwise cover them. Some issues that these cases have covered include the president’s power to transfer judges, foreign adoptions of Indian children, limestone quarrying and its environmental impacts, and gas leaks from a chemical plant (Antony, 1993, Vishnupriya, 1995)9.
In examining an institution that is created by an elite judiciary in order to assist subordinated groups in society, it is crucial to look at which groups actually initiate, which negotiate, and which eventually benefit (Galanter, 1974, 1994). In its two decades of existence, PIL petitions are overwhelmingly written by elites. They are most often lawyers, judges, scholars, journalists, social activists and activist organizations. Several of the organisations involved have been receiving grants from various sources for the express purpose of filing writ petitions on behalf of the disadvantaged. There are many individuals and organizations that have been petitioners in more than one case, indicating perhaps that they see this process and its results as a useful way of action.
It must be noted, however, that the courts have entertained numerous letters, telegrams, and even postcards from the poor or disabled, and have sometimes even treated anonymous letters as writ petitions (Cassels, 1989, 499, Vishnupriya, 1995, 87). The court has also declared that the rights of petitioners (who bring action on behalf of others) are subordinate to the ‘interests’ of the beneficiaries of the action. In addition, as PIL is not a form of private litigation, the petitioner in these cases is not allowed the right to withdraw proceedings at any time. The court also serves a different purpose in such cases. It not only hands down a judgement of compensation, but it is also (and more importantly) concerned with correctives for the future. The court has often taken upon itself the responsibilities for organising proceedings, designing a relief plan and also overseeing its implementation, and sending assigned officials to periodically check on the progress of its remedies (Juneja, 1993, 82).
It is clearly difficult to make a process such as PIL a widespread one (or a non-elite one, for that matter) when the majority of the population is illiterate. One must also question even the possibility of PIL becoming a widespread phenomenon considering the size and capacity of the courts. Theoretically, the possibility does exist due to the sheer simplicity of the process. At the same time, some abuses have occurred because of this simplicity. Initially, when PIL first caught on, there were countless frivolous cases brought to court because of a willingness on the part of judges to give attention to anyone using the new system (Dhavan, 1994, 306). This has been reduced significantly now, and the system has been amended in order to deal with other problems that have arisen as well. For instance, at its inception PIL letters or petitions would go straight to the judges to whom they were addressed, and those judges would then choose whether or not to hear the case. This caused problems, however, because it is not acceptable to let petitioners choose judges for their own lawsuits. As a result, a special cell of the Supreme Court was created for the handling of all PIL letters and petitions, even the ones addressed to specific judges. The Public Interest Litigation Cell sorts through all the letters, and then puts the viable petitions in the hands of the Chief Justice, who then assigns a justice to each case (Vishnupriya, 1995, 93). This is similar to how all non-PIL cases are handled in the Supreme Court as well.
PIL is not confined to the jurisdiction of the Supreme Court. If the petition points to a ‘legal wrong,’ then it should be dealt with at the level of the state High Courts. If a ‘fundamental right’ has allegedly been violated, then the petition may go to either the High Court of the state or directly to the Supreme Court under article 3210 or the Constitution (Cassels, 1989, 498). This is discussed in detail later on.
The very openness of PIL can lead to problems in the relations between the courts and other branches of government as well as the process of politics. Former Chief Justice P.N. Bhagwati has enumerated certain limiting criteria for PIL cases that seek to address these issues. The courts must work within the following confines: For one thing, it must be demonstrated to the court that the petitioner is acting in a bona fide manner, and not for any sort of personal gain, private profit, political motivation, or any other ulterior motive. Furthermore, the court cannot allow its process to be abused by politicians or others in order to postpone legitimate administrative action, or in an attempt to gain a political objective. Finally, the judiciary must be careful not to overstep the bounds of its functions into the territories of the executive and legislative branches of government (Juneja, 1993, 78). Such precautions must be taken in order to protect PIL from its own openness to access.
It is important to note also that PIL was very much a creation of the more liberal justices of the Supreme Court, namely Justice Bhagwati and Justice Krishna Iyer, and that it has faced harsh criticism from many, including the more conservative justices on the bench. It is quite clear that the harshest critics are those who conceive of the judicial role as much narrower than what is customary in PIL.
The court has been charged not only with exceeding its institutional capacity, but with reversing constitutional priorities, usurping both legislative and administrative functions, violating the rule of law, riding roughshod over traditional rights and succumbing to the corrupting temptations of power. (Cassels, 1989, 509)
Jamie Cassels goes on to argue that this dynamic new form of judicial activism is best understood as an attempt at retrieving legitimacy in the post-Emergency period. PIL is thus seen as a move to gain public support and acquire a more prominent space in Indian society. Rajeev Dhavan, on the other hand, would consider this reorientation to be part and parcel of ‘the alliance of protest and thinking’ discussed earlier. Either way, it is an expansion of judicial power that helps to serve the interests of disadvantaged groups in society.
3. Past Policy and Legislation on Women
Once the British had established themselves as the colonial rulers of India, they introduced the British system of courts including their rules, procedures, and court hierarchies. This helped to move India slowly away from the laws of traditional, local customs as well as from Hindu and Muslim personal laws. Though initially the British had espoused non-interference in personal matters, not surprisingly, once they had been in India a good while, the colonial rulers became more comfortable with the notion of ‘interference’.
‘Through their interventions the Hindu society could rid itself of its ‘barbarism’ and enter an era of ‘civilization.’ An image of the cruel and superstitious natives who needed Christian salvation was deliberately constructed by the Evangelists’ (Agnes, 2000, 46).
Thus began an era of colonial legislation designed to ‘civilise’ the Indians through law. This effort of the colonial power began with a number of issues that are of special interest to women, such as rights within the home and especially those related to marriage. In the first half of the nineteenth century, Hindu social reformers such as Raja Ram Mohan Roy also fought for laws prohibiting the practice of Sati11, the acceptance of a widow’s right to remarry, and the abolition of dowry. The combination of both these forces led to changes via judicial decisions as well as legislation. The first of these was Lord Bentnick’s Sati Regulation Act of 1829. The Widow Remarriage Act was passed in 1856, and soon after that came the Age of Consent Act of 1860, followed by the Prohibition of Female Infanticide Act of 1872 (Manohar, 1999, Agnes, 2000).
Yet, the issues that were controversial in the legislative and judicial arenas centuries or even decades before are clearly not of primary concern to legislators, jurists, and women’s rights activists of today. The contemporary Indian Women’s Movement is strong, and has asserted its voice in how women’s issues are dealt with in the highest echelons of the Indian state. In the last few decades, the Indian anti-rape campaign has been the most influential movement for women’s rights in India (Gangoli, 1998, 128). This movement began from a slew of protests against the Indian Supreme Court’s ruling in the now infamous Mathura rape case of 1979 discussed in the introduction; these protests were eventually instrumental in bringing about substantial changes in India’s rape laws12.
The following sections examine how public interest litigation is used by the Indian Supreme Court in order to fulfil its promise to aid in the amelioration of the lives of Indian women. This commitment is reflected consistently in the Court’s PIL decisions on matters involving women. This can be seen through its rulings on various issues. I choose here to examine the Court’s record on rape, sexual harassment, and sex workers. One of the outcomes of these gender-related judgements has been the order for and subsequent creation of the National Commission for Women (NCW). I include a brief discussion of the NCW here as well.
4. The Court Today
In its efforts to create positive changes for the status of women, the Supreme Court must first find a constitutional violation before taking on any public interest case. Most often it is the violation of fundamental rights that allows the Court entrée into a gender-related issue. Fundamental rights guaranteed by the constitution that are relevant for public interest cases relating to gender are few, but of great import. These rights provide for equality before the law and equal protection before the law. Discrimination on the grounds of religion, race, caste, sex, or place of birth is expressly prohibited. In addition, the protection of life and personal property are guaranteed. This issue has been interpreted extremely liberally by the Supreme Court to include life with dignity as a fundamental right. Trafficking in human beings and forced labour are also prohibited, as is the employment of children in hazardous situations – this rule is often applied to the dangers of child prostitution as well. It is in the interest of protecting the aforementioned fundamental rights that most gender-related PIL cases are accepted by the Supreme Court as within its jurisdiction13.
Supreme Court judgements in PIL cases have not only been influential in promoting awareness about women’s issues, but have also been instrumental in the creation of policy and organisations devoted to women’s development initiatives. It was in the early 1990’s that the Supreme Court ordered the creation of the National Commission for Women (NCW) under the National Commission for Women Act of 1990. By January of 1992, the Commission was functioning at what the government deemed full capacity. The NCW has as its main mission the guarantee of ‘speedy justice’ to women. The Commission consists of a chairperson, five members, and a member secretary. They are all nominated by the Central Government, and are put in place in order to protect the rights and interests of Indian women. The Commission’s mandated activities include the review of laws having to do with women, interventions and investigations of specific complaints of atrocities, and remedial action when it is appropriate.
The NCW is particularly active in organising Parivrik Mahila Lok Adalats (local courts for resolutions of problems – specifically for women) through the help of NGOs all over the country. The Commission reports that over the last year, 20 of these were held in twelve of the 25 states. They have also launched legal awareness programs for women, including 160 programs at colleges and many regional literacy camps in which the Commission claims 50,000 women were educated in the past year alone. In investigating complaints of violence, the Commission mainly deals with cases of rape, gang rape, and various other forms of violence committed against poor tribal and village women. In 1997, the NCW organised a national conference of all the State Home Ministers in order to discuss issues of violence against women and the adoption of newer, more stringent measures against perpetrators of such violence. In addition, the Commission has sponsored a major study on employment of tribal women in the light of a changing economy. It has also carried out studies on the sexual exploitation of children. This led to another 1997 national conference, the National Consultation on Sexual Exploitation of Children. All findings from the aforementioned studies and conferences were then reviewed by the NCW and sent on to the Government of India for further action.
Under the auspices of the Supreme Court, the NCW has set up several programs to assess the way in which law enforcement treats women. Sensitivity training has been given to numerous police departments, urging greater implementation of laws that are in place for the benefit of women. The Commission has established schemes for appropriate custodial justice for female prisoners, and the release and rehabilitation upon release of women from prisons.
Rehabilitation is also provided for prostitutes and their children, and for widows along with proper support for the land rights of widows. The elimination of dowry practices is a further concern for the Commission. It routinely considers complaints lodged by women and their families who have had unlawful dowry demands made on them. Such demands are often accompanied by threats of violence. Other common complaints have to do with torture, desertion, bigamy, rape, employment discrimination, domestic violence, and incest. Indeed, it is the Complaints Cell/Counselling Cell that is considered a core unit of the Commission. Both written and oral complaints are accepted regarding any ‘deprivation of women’s rights, non implementation of laws enacted to provide protection to women, non compliance of policy decisions, guidelines or instructions aimed at mitigating hardships to women and taking up issues arising out of such matters with appropriate authorities’ (Ministry of Human Resources, GOI).
Incidences of rape are extremely high among women in the ‘weaker sections’. The Supreme Court does vividly acknowledge the plight of many Indian women by stating that they often live their lives ‘at the mercy’ of their employers and the police and are therefore especially susceptible to violence and intimidation by men14. Many of the rape cases that have been handled as PIL cases are of an extreme nature15, and have led the Supreme Court to indicate broad parameters in assisting the survivors of rape. Often, the Court has stepped in due to lapses on the parts of the Central government or the appropriate state governments to provide rehabilitation and compensatory justice. With the police often sympathetic to the perpetrators of rape and a broader social climate that accepts and perpetuates the notion that women should live their lives at the service of men, it is close to impossible for women in India to get justice in cases of sexual violence. The Supreme Court has ruled regularly in PIL cases that deal with such issues, and it has, in general, sided with the rights of women. The Court does actively pursue methods of redress and is supportive of groups designed to aid in the prevention of and treatment of such issues.
In cases of violence against women or in other cases dealing with deprivation of the rights of women, the Supreme Court routinely elicits the NCW to engage in the evaluation of legislation dealing with women. The Court also counts on the Commission to come up with recommendations for just compensation and rehabilitation for female crime victims. The Supreme Court has written in Delhi Domestic Working Women’s Forum vs. Union of India & Others [1994(4) SCALE 608], that it is necessary to ensure the protection of women by the National Commission for Women due to the high incidence of violence against women of especially poor socio-economic status and women who belong to disadvantaged minority groups. These victims usually have neither the time nor the means to secure justice for themselves using the civil court system, and it is for the sake of women belonging to the ‘weaker sections’ of the population that the Commission has been established.
The Delhi Domestic Working Women’s Forum case is important for several other reasons as well. The victims of this crime were very poor tribal women from the state of Bihar. These four domestic workers were brutally raped by seven army officers while travelling on a train from Ranchi in Bihar to Delhi. The petition was brought to the Supreme Court by a group representing female domestic workers in Delhi. The Supreme Court in its judgement described the women as ‘helpless…at the mercy of the employers and police’. At one point during the case, the lawyers could not find the women at all, though there had been some indication that they were somewhere in Uttar Pradesh. The Supreme Court issued directions to the State of Uttar Pradesh to help find them, but the state’s police did not cooperate. In a ruling in the P. Rathinam versus State of Gujarat16 case (another rape matter), the Court also complained that the State of Gujarat and its police forces had been completely uncooperative in carrying out its orders. One of the most frustrating problems that the Court faces in the implementation of its judgements, especially in cases related to sexual harassment or assault, is the lack of cooperation from the states and state police. The Court did acknowledge that it is rare that women in such situations can secure justice through the civil courts, even though the Indian Penal Code and the Indian Evidence Act had both been amended in this regard. The Court also went on to ask the NCW to draft a plan to help remedy this and to impress upon the Union of India to put such plan into action immediately.
Compensation to victims of sexual assault is a practice which has gained much recent attention due to a ruling handed down by the Supreme Court in January of 200017. In this case, a ruling by the Calcutta High Court was upheld in which it ordered Rs.10 lakh (one million rupees or roughly $22,000 at the time of the award) in compensation to a Bangladeshi tourist who was gangraped by railway employees at Howrah railway station in Calcutta. This money was actually paid out by the Union of India because the railway workers were employees of the Indian government and they committed their crime on national railway property under the pretence of helping the victim confirm her ticket. The PIL was filed by an advocate in Calcutta who argued that the Bangladeshi woman (an elected representative in her home country) was entitled to some form of compensation because of the violation of the constitutional guarantee of ‘right to life with dignity’ even though she was the citizen of another country. The Supreme Court agreed that all people on Indian land are entitled to the same fundamental rights as any Indian citizen unless there is somehow a breach of national security involved.
6. Sexual Harassment
When it comes to sexual harassment, the Indian Supreme Court has only dealt with the issue directly in one PIL case, and that has turned out to be a landmark decision. Popularly referred to as the Vishaka decision, Vishaka and Others versus State of Rajasthan and Others18, became the very first case in India in which the Supreme Court declared sexual harassment in the workplace to be unconstitutional. The decision was handed down in 1997 by a three-justice bench including Chief Justice J.S. Verma, Justice Sujata V. Manohar, and Justice B.N. Kirpal. Justices Verma and Manohar are currently members of the National Human Rights Commission; Justice Verma is chairperson. In conversations with both Justices, each mentioned to me that the Vishaka judgement was one of their proudest moments on the bench.
The Vishaka case was brought to the Supreme Court in the form of a writ petition filed by several social activists and NGOs spurred on by the brutal gang rape of a female social worker in a Rajasthani village. Chief Justice Verma delivered the court’s judgement. The specific complaint on the gang rape was turned over to a criminal court. However, his opinion did hold that sexual harassment in the workplace is a violation of the fundamental rights of ‘gender equality’ and ‘the right to life and liberty’ under articles 14, 15, and 21 of the constitution. In addition, he found that article 19 (1) (g), which protects the right to ‘practise any profession or to carry out any occupation, trade or business,’ is also violated when there is an incident of sexual harassment. Justice Verma states that the fundamental right guaranteed in article 19 depends on the assumption of a ‘safe’ working environment. He also goes on to explain that 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’.
However, when cases of sexual harassment violate the fundamental rights of women workers under the constitution, and are brought before the Court for redress under Article 32, it is the duty of the Supreme Court to do what the legislature should have done in the first place - provide some guidelines for the protection of these rights. Justice Verma’s guidelines are written with regard to the definition of ‘human rights’ as set out in the Protection of Human Rights Act of 1993. He takes specific note of the fact that currently (this was written in 1997), India’s civil and penal laws ‘do not adequately provide’ any protection for women against sexual harassment at work. He goes on to argue that it would take a good deal of time to put such legislation on the books, and that is precisely why the Supreme Court must set out useful guidelines so that employers and other responsible persons or institutions may begin to observe such rules to aid in the prevention of any future sexual harassment of women in the workplace.
Guidelines set out by the ruling actually require quite a bit from Indian employers. The first duty of employers is set to be the prevention or deterrence of acts of sexual harassment followed by the provision of procedures for the resolution, settlement or prosecution of such acts. Employers should notify, publish, and circulate in appropriate ways to their employees that sexual harassment is expressly prohibited. In addition, ‘appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at workplaces and no woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment.’ Moreover, there are also procedures spelled out for criminal proceedings, disciplinary action, as well as provisions for a ‘complaints mechanism’ and ‘complaint committee.’
7. Sex Workers and Their Children
The Constitution of India specifically prohibits trafficking in human beings and forced labour of virtually any kind19. Article 23 derives from the framers’ intention to not just prohibit slavery, but also to include in that classification the ‘traffic in women or children or the crippled, for immoral or other purposes’ (Basu, 1997, 110-111). In 1956 the Suppression of Immoral Traffic in Women and Girls Act was put into effect. This law was geared toward punishing three main offences: 1) profiting from the prostitution of another person, 2) the exploitation of another for the purpose of prostitution, and 3) soliciting in public spaces. In 1986 the same act was renamed the Immoral Traffic (Prevention) Act and was amended to reflect a shift in emphasis from suppression to prevention. In reviews of the original act by the Law Commission and others it was generally agreed that penalizing prostitutes themselves could not be effective. It is universally recognized in the Indian context that most women involved in prostitution are either physically forced to participate in such activity or are driven to it by extreme financial need. Therefore, it would be ineffective for instance, to punish family members (especially children or the elderly) who are supported by a prostitute’s income (as the 1956 law would have required). The key now is to prevent women from having to turn to prostitution as the only way to support themselves and their families, and also to rehabilitate those who have been sex workers in the past. What is currently punishable derives from the newly formed definition of prostitution, which is ‘sexual exploitation or abuse of a person for commercial purposes’ (as cited in Sarkar, 1988, 49).
Through social action litigation, the Supreme Court has dealt with prostitution-related cases (though there have been very few at this level) in what can aptly be described as a very sympathetic manner. It should be noted however, that the judgements are sometimes written by the justices in rather paternalistic and old-fashioned tones, often verging on the banal. A glaring example of this is found in Justice Ramaswamy’s 1997 musings from Gaurav Jain versus Union of India and Others.
‘Frailty, thy name is woman,’ was the ignominy heaped upon women of [the] Victorian Era [sic] by William Shakespeare in his great work Hamlet. The history of sociology has, however, established the contrary, i.e., ‘fortitude,’ thy name is woman; ‘caress,’ thy name is woman; ‘self-sacrifice,’ thy name is woman; tenacity and successful pursuit, their apathetical [sic] is woman…[The petitioner Gaurav Jain seeks] improvement of the plight of the unfortunate fallen women and their progeny [1997(4) SCALE 657].
The troubling concept of ‘rehabilitation through marriage’ as a remedy for prostitution also seems to come up repeatedly in the judgements. Viewed in a more positive light, it is the Court’s reliance on rehabilitation as the best way to deal with sex workers rather than incarceration that makes this a common feature in their rulings. In fact, most PIL cases that come to the Supreme Court involving sex workers are those that deal mainly with protective homes that have been set up to aid in their rehabilitation. Unfortunately, protective homes are often found to be in dreadful conditions and seem to ignore the laws under which they were created. In Dr. Upendra Baxi versus State of Uttar Pradesh and Another20, the Supreme Court bench writes in its ruling that the Agra Protective Home was formed in order to accommodate women who are trying to leave prostitution. However, upon close inspection it was found that the home was actually housing women with tuberculosis, venereal diseases, and developmental disabilities. There were no sex workers there at all.
In addition, there have been cases in which the petitioner is really asking the Court to consider the plight of the children of sex workers, not the sex workers themselves. In the Indian context the children of sex workers often live lives of
Segregation from other children. They are considered socially unacceptable in a society that defines most people by what kinds of families they come from. Most of these children have no knowledge of their fathers, have mothers who are known sex workers, and are often raised in red light communities. In the Gaurav Jain case mentioned above, Mr. Jain was seeking the creation of separate schools for the children of sex workers. His petition was accepted and the case heard by two justices who found his concerns to be genuine and important, but his ideas on how to achieve normalcy and social acceptance for these children to be deficient. The bench in this case ruled that the children should be put into regular schools with other children and provided with housing in the school hostels so that they may pursue their educations away from what must surely be the horrors of their mothers’ everyday lives. Justice Ramaswamy stressed in his opinion the importance of having
‘the children overcome the disabilities from foul atmosphere(s) and to generate the feeling of oneness and dissegregation had’ .
This was put in as an interim order with directions given to an NGO to subsequently look into how the process was working for the kids put into such programs.
In fact, it was also a Supreme Court PIL decision in 1990 that brought out the taboo subject of child prostitution as an issue for national public concern, and eventually caused international organizations such as UNICEF to pay attention to the magnitude of the problem. The Court’s ruling ordered the State and Central Governments to implement rehabilitation and education schemes for children who have been involved in prostitution, and also to take steps toward the eventual eradication of child prostitution as a whole. As a direct result of this landmark PIL decision, a Central Advisory Committee has been formed to work toward the elimination of child prostitution. A subcommittee has also been constituted for the purpose of planning and making policy recommendations on how to best rescue and then rehabilitate all children found to be involved in prostitution. Both committee reports were submitted and considered. Regional consultations were then ordered and completed with aid from UNICEF in the major metropolitan areas of Calcutta, Goa, Hyderabad, Patna, Chandigarh, and Bangalore.21
In addition to the matters discussed above, there have also been several other crucial women’s issues taken up by the court. Some of these are not by any means considered to be landmark decisions, but do demonstrate a willingness on the part of the higher judiciary to give time and access to many women who have nowhere else to turn. For instance, in 1986 the Court issued directions in a matter that involved women who sell vegetables on the streets of Ahmedabad. It ruled that the Municipal Corporation of Ahmedabad had to issue licenses to women to sell vegetables in any location where they had previously been selling, and also to give legal costs and funds to the Self Employed Women’s Association (SEWA) for the establishment of a joint account between SEWA and the Municipal Corporation to be used for the ‘purpose of welfare of these women vegetable vendors in mutual consultation’ [1986(2) SCALE 1254].
In a 1987 dowry case, Sarita versus Delhi Administration and Others, a woman wrote a letter to the Supreme Court when her husband’s family started demanding money from her two months after they were married. She wrote that her life had been threatened, she could not afford a lawyer, and the Delhi Police refused to help. The Court took up the matter and issued notice to the Commissioner of Police in Delhi giving him one week to conduct an inquiry and get back to the Court with the results. He was also instructed to provide the petitioner with all ‘necessary and adequate’ police protection [1987(1) SCALE 403]. In an order dated exactly seven days from the date of the original order, we find that the Delhi Police actually did exactly what they were told and that appropriate action was in process. Sarita, who was present at the ruling, then asked the court for legal aid and the Delhi District Legal Aid and Advice Board was directed to provide aid to her [1987(1) SCALE 555].
9. Conclusions and Analysis
Public interest litigation in India has successfully opened spaces for women’s empowerment and social change. The cases I’ve discussed and their judgements are important for several reasons, but the most significant contribution they make is in setting precedent. Clearly, this is why the Supreme Court of a nation of a billion citizens bothers to hear petitions that have only to do with the lives of a few street vendors or one woman dealing with dowry problems. The justices on the bench who write these decisions speak of an active interest taken by the Court in trying to fulfil the constitutional promise of promoting socio-economic development. They consider a citizen’s access to the courts and justice to be part and parcel of any kind of social development that a developing democracy has to offer. In particular, the justices often mention helping the most disadvantaged members of the population, and in that category they often focus on women. It is no secret that women are especially disadvantaged in all strata of Indian society. Indian women are held down at home and in the workplace with equal fervour. Though the Constitution promises equality of the sexes, this is nowhere close to a reality. It must be noted again, however, that these judgements are meant to and do go beyond the individuals involved. They are decisions inspired by particular individuals, but written in broad, sweeping terms in order to aid the public interest in general. The relevance of these decisions is found, after all, in their broader nature. By ruling in favour of one woman, the Court is bringing national attention to the issues that many Indian women are dealing with, while at the same time creating and protecting national policy.
It must also be noted that whether rulings in PIL cases are immediately enforceable or not, they do hold a great deal of symbolic value. Change on a purely symbolic level is crucial for the subsequent creation of real social transformation. Precedent-setting rulings by the Supreme Court do set norms for society. These decisions and the institutions they subsequently create can accelerate the processes of change. It is a formal legal statement that will eventually provide legitimacy for transformations that may not occur instantaneously. From such legal action, the foundation is laid for change that will become real in the future22. Eventually, we trust, these rulings will be implemented. Meanwhile, by writing these decisions, the Court performs the significant function of creating acceptability for new ideas and of keeping the issue alive, the importance of which should not be underestimated.
Prior to the establishment of PIL in India, the cases discussed here would in all probability have never made it to the Supreme Court or any other higher court at all. Court proceedings in India are notoriously slow. However, High Courts, and especially the Supreme Court, are relatively fast and much more effective and corruption-free than most of the lower courts in India. It is crucial that women get their cases heard in higher courts because lower courts are an especially dismal setting for women. These courts often work under beliefs that dominate the local cultures in which they operate, leaving any constitutional concern for women’s rights by the wayside. Thus, in order to have some hope for justice, women must first get to courts that may be sympathetic to their concerns. Access then, is the key, and the Indian Supreme Court has made that part of the process extraordinarily simple.
The Supreme Court's concern for women as well as its attitude that the amelioration of the lives of women is an especially vital component of Indian development (indeed, active pursuit of socio-economic development is a constitutional guarantee in India), are reflected consistently in the Court's public interest rulings in matters involving women. The Court's willingness to listen to cases involving women's issues and to provide restitution when appropriate is a vital component of India's evolving pursuit of development. Media coverage of decisions is widespread, and the NGOs and civil liberties groups that are most actively involved with the protection of women's rights admit freely that their ideas of what social action they can or should pursue are often influenced directly by Supreme Court rulings. It is of special importance that the Court allows citizens to petition on behalf of women who cannot. The backing of the Court gives legitimacy and access, and thus, voice. Judiciaries alone do not wield the power to create social change, but for the women of India such direct access to the highest court in the land, the policy it creates and protects, the legitimacy it lends to their causes, and the media coverage that the cases receive have shown substantial results. Though it is often difficult to effectively implement all of the Court's rulings, factors that come out of its decisions do lead to real social empowerment and change.
1 Officially, the case is Tukaram v. State of Maharashtra (1979) 2 SCC 143, but is most commonly known as the Mathura rape case, and is one of the most frequently referred to cases in India today.
2 For a detailed discussion of the emergency period, see J. DasGupta 1978.
3 Upendra Baxi and Y. Vishnupriya both make a case for the birth of PIL as part of a quest for legitimacy in the post-emergency period (Baxi 1987, 36; Vishnupriya 1995, 83-86). Baxi also discusses judicial activism in the period before the emergency.
4 Examples of this kind of thinking abound in the historiographies of subaltern studies. See R. Guha, ed. 1997. A Subaltern Studies Reader 1986-1995.
5 For example, the courts are now weighing conflicting public interests much more carefully before entertaining writ petitions for hearing. See Kapur and Mehta 1999, 172.
6 For a thorough examination of the relaxation of these rules, see Chaturvedi 1984 ‘Liberalizing the Requirement of Standing in Public Interest Litigation.’
7 When the doctrine of standing is used to reject a case, it should be noted that this is most often done with no consideration of the actual merits of the case (Cunningham 1987, 498).
8 Also see Cunningham for a discussion of distinctions between representative standing and class action (500).
9 See Antony also for briefs on nearly every landmark judgement in PIL through 1992 along with a brief history of PIL.
10 For a very thorough discussion of article 32 and its constitutional remedies for the enforcement of fundamental rights, see Durga Das Basu’s Introduction to the Constitution of India, pp.121-124. Included is also the important distinction between High Court and Supreme Court.
11 Sati is the Hindu practice in which a wife joins her dead husband on his funeral pyre.
12 See Agnes 1993 and Gangoli 1998 for details.
13 For further elaboration of these articles of the constitution, see Basu 1997.
14 In this ruling, Delhi Domestic Working Women’s Forum vs. Union of India & Others [1994(4) SCALE 608], the Court discusses the situation of tribal women in Bihar as well as the general situation of women all over the country.
15 These cases often involve such issues as gang rapes, the rape of nuns of children, and other such extreme situations.
16 See P. Rathinam versus State of Gujarat, [1987(2) SCALE 1464], order dated December 7, 1987.
17 All details of this case are from four different articles published on February 1, 2000 in The Hindustan Times, The Times of India, The Hindu, and The Statesman.
18 See (1997) 6 Supreme Court Cases 241; Vishaka and Others vs. State of Rajasthan and Others.
19 It does not include for instance, forced labour in prisons or conscription at times of war.
20 This decision, written by Justice Bhagwati and Justice Reddy on July 31, 1981 [1981(3) SCALE 1136], is the first of several orders relating to this particular case.
21 This information is courtesy of the Department of Women and Child Development in the Government of India’s Ministry of Human Resource Development.
22 A good example of this is the history surrounding the US Supreme Court’s Brown v. Board of Education ruling ordering the integration of schools. For details, see Patterson 2001.
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