Author Name:   subhashreemukherjee

Jurisprudence extended the power of judiciary to go beyond the statutory limit to give better and complicit justice. Arthur Schlesinger Jr. introduced the term judicial activism in a January 1947 Fortune Magazine article titled "The Supreme Court...

Judicial Activism in the Area of Women Empowerment

Jurisprudence extended the power of judiciary to go beyond the statutory limit to give better and complicit justice. Arthur Schlesinger Jr. introduced the term "judicial activism" in a January 1947 Fortune Magazine article titled "The Supreme Court: 1947. From the very beginning the term Judicial Activism has become a subject of controversy in India. Attempts have been made to curb the power of the court as well as access to them. In the past, several indirect methods were used to discipline the judiciary, such as supersession of judges or transfers of inconvenient judges. It has often been said that the courts usurped the functions allotted to the other organs of Government. On the other organs of government. On the other hand, the defenders of Judicial Activism are say that the courts have performer their legitimate function. According to A.M Ahmadi, judicial activism is a necessary adjunct of the function since the protection of public interest happens to be its main concern . Judicial Activism may be defined as the pro-active role played by the judiciary in ensuring that the rights and liberties of the people are protected. It may be understood as the role of the court in stepping out from its normal interpretative role. When the court moves beyond its normal role of mere adjudicator of disputes and becomes a player in the system of the system of the country laying down principles and guidelines that the Executive must carry out, that role of the court may be said to be judicial activism. Perception of judicial activism is bound to be subjective depending upon the social philosophy and conception of judicial function held by a person. Judicial activism is a weapon in the hands of judiciary to provide justice to the people and it can be used by the judiciary in favour of social interest or for common good.

Role of Judiciary: - In our Country Judiciary is known as the independent wing of government. This Independent Judiciary has two role 1) the traditional role i.e. to interpret the laws , and another is 2) Judicial activism i.e. to go beyond the statute and to exercise the discretionary power to provide justice. These roles are as follows:-

i) The Traditional Role of Judiciary:- Basically the traditional role of the judiciary is interpretation of statutory and constitutional provisions for providing justice. The judiciary (also known as the judicial system or judicature) is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes. Under the doctrine of the separation of powers, the judiciary generally does not make law (that is, in a plenary fashion, which is the responsibility of the legislature) or enforce law (which is the responsibility of the executive), but rather interprets law and applies it to the facts of each case. This branch of government is often tasked with ensuring equal justice under law. It usually consists of a court of final appeal (called the "supreme court" or "constitutional court"), together with lower courts. In a democracy, the role of judiciary is crucial. Judiciary is a faithful keeper of the constitutional assurances. An independent and impartial judiciary can make the legal system vibrant. Our Indian judiciary can be regarded as a creative judiciary. Credibility of judicial process ultimately depends on the manner of doing administration of justice. Justice K. Subba Rao explains the function of the judiciary as thus:

i)It is a balancing wheel of the federation;

ii)It keeps equilibrium between fundamental rights and social justice; It forms all forms of authorities within the bounds;

iii) It controls the Administrative Tribunals.

Justice – Social, economic and political is clearly laid down in the preamble as the guiding principle of the constitution. Social justice is the main concept on which our constitution is built. Part III and IV of Indian constitution are significant in the direction of Social Justice and economic development of the citizens. Judiciary can promote social justice through its judgments. When any question comes before the court related to the protection of women, the by the proper interpretation of the concern laws or statutes judiciary is able to express the meaning of provisions of the legislation and the intention of legislature and by this way judiciary can give justice and protection to the women. Under Indian constitution women also have some special rights and equal rights in that case also judiciary by interpretation of the constitution can make clear about the constitutional rights of women.

Another important role of judiciary is to make precedent for the public interest or for welfare of the society. Where there is no specific law or where there is law but judiciary expanding the dimension of such law and giving a new and different decision than pervious decision of the court. Sometimes precedents are also known a Judge Made Laws. Under article 141 of the constitution provided that “The law declared by the Supreme Court shall be binding on all courts within the territory of India’’. Article 141 incorporate, what is known in English law, the doctrine of stare decisis. Article 141 gives a constitutional status to the theory of precedents according to which the judicial decisions are considered to have binding force for the future.

ii) Role of Judicial Activism:- Law is powerless and requires a strong agency to maintain its existence. The level of implementation and the capability of the executor determine the fate of law. During the recent past, the term ‘Judicial Activism’ has assumed immense significance. It may be define as dynamic process of judicial outlook in a changing society. The judicial Activism mainly stems from the failure of the other two wings of the state. When the democratic institutions are extinct or moribund court activism is the only hope of justice for the citizens. Where the government fails to govern, the civil services is neither civil nor service, the police is more an oppressor than a guardian of law, parliament is a costly debating society, the judiciary only remains the last hope for the people. Thus, judicial activism is all about providing a good governance and ensuring the safety, security and welfare of the society. The decision of Golakhnath vs. State of Punjab, Keshavananda Bharti vs. State of Kerala, Minerva Mills vs. Union of India the hue and colour of Judicial Activism changed with the supreme court’s judgement in S.P. Gupta’s case wherein it was pronounced that any person could file a public interest litigation for another affected person who was deprived or underprivileged and could not approach the court for the redressal of grievances. The acknowledged that the legal process carried with itself certain disadvantages for the poor deprived and underprivileged. Hence, P.N. Bhagwati, J., and Krishna Iyer J. initiated a stream of judicial activism.

In the traditional concept of judiciary, the judge is depicted by an image, where the eyes of the judge are covered by dark cloth with hands holding the balance. This obviously means that the judges are supposed to have a very open mind on every issue without having any personal opinions at all. Rightly or wrongly, Indian judiciary has now come to play a very vital role in influencing the various aspects of the administration and governance of the country. At one time, it was thought that the role of judiciary is only to interpret the laws and regulations and provide judgments exclusively from the legal point of view. This perspective regarding the judiciary has undergone sea change in recent times and this change is known as Judicial Activism.

JUDICIAL ACTIVISM IN THIS AREA: - The realist school of jurisprudence exploded the myth that the judges merely declared the pre- existing law or interpreted it and asserted that the judges made law. It stated that the law was what the courts said it was. This is known as legal scepticism and was really a reaction to Austin’s definition of law as a command of political sovereign. According to analytical jurisprudence a court merely found the law or merely interpreted the law. Indian supreme court not only makes law, as understood in the sense of the realist jurisprudence, but actually has started legislating exactly in the way in which a legislature legislate. Judicial law making means in realist sense is what the court does when it expands the meanings of the words ‘personal liberty’ or ‘due process of law’ or ‘freedom of speech and expression’.

Judges are applying the discretionary power to provide better justice to women in the new context of the Socio-Economic conditions. Judiciary has played an active role in enforcing and strengthening the constitutional goals towards protection/rights of the women of the land. The courts in India have tried to interpret laws in consonance with the international treaties and conventions. Some of the major cases are enumerated below:

i) Judiciary has made immense contribution to strike the balance between discrimination caused to the working women and availing them of justice against such discrimination. In Air India vs. Nargesh Meerza the Air India and Indian Airlines Regulation were challenged as violative of Article 14. Regulation 46 provided that an air Hostess was to retire from service upon attaining the age of 35 years or on marriage if it took place within four years of her joining service or on first pregnancy, whichever occurred earlier. Regulation 47 empowered the Managing Director, at a time beyond the age of retirement, upto the age of 45 years, if an Air Hostess was found medically fit. The Supreme court struck down the Regulation providing for retirement of the Air Hostess on her first pregnancy, as unconstitutional, void and violative of Article 14.The Court explained that the Regulation did not prohibit marriage after four years of joining service and if an Air Hostess after having fulfilled the first condition became pregnant, there was no reason why pregnancy should stand in the way of her continuing in service. After utilizing her service for four years, to terminate her service if she became pregnant, court said, amounted to compelling the poor Air Hostess, not to have any children. It thus amounted to interfere with and divert the ordinary course of human nature. It was held not only a callous and cruel act but an open insult to Indian Womanhood. Court also that said it was not only manifestly unreasonable and arbitrary but contained the equality of unfairness and exhibited naked despotism and was, therefore, clearly violative of Article 14.

ii) Vishakha vs. State of Rajasthan, Vishakha, a non-governmental organization working for gender equality, had filed a writ petition seeking the upholding of the fundamental rights of working women under Article 21 of the constitution. The immediate reason for the petition was the gang rape of a saathin (a social worker involved in women’s development programms) of Rajasthan in 1992.The assault was an act of revenge as the saathin had intervened to prevent a child marriage. Supreme Court provided a landmark judgment on the area of sexual harassment against women. As in his particular aspect there is no law or enactment by the legislature that is why here the judiciary applied its activist power and provides the some guide lines. Some of the guidelines are as follows:-

1. Duty of Employer or other responsible persons in work places and other institution to women employees to prevent the commission of acts of sexual harassment.

2. Court also define sexual harassment. Sexual harassment includes: such unwelcome sexually determined behaviuor as:
a) Physical contact and advances;
b) a demand or request for sexual favour;
c) Sexually coloured remarks;
d) Showing pornography;
e) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

3. Court also provided guidelines to all employer public or private for taking preventive steps.
4. what type of criminal proceeding is required for this offence that is also suggested by the court.
5. disciplinary action should be taken against the offender.
6. Complaint Mechanism is also suggest by court.
7. complaint committee is required.
8. there is a need of worker’s initiative.
9. there is need of awareness among female employees about their rights.
10.court provided the guideline in case of third party harassment.
11. central/ state Government are requested to enact the specific law in this regard
12 these guidelines will not prejudice any rights available under the protection of Human Rights Act,1993.

After providing the guidelines court said “Accordingly, we direct that the above guidelines and norms would be strictly observed in all work places for the preservation and enforcement of the rights to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field’’.

iii) Apparel Export Promotion Council vs. A.K. Chopra,
The accused –respondent tried to molest a women employee (Secretary to chairman of a Delhi based Apparel Export Promotion Council) Miss X. (name withheld), a clerk cum typist on 12 th August, 1988 at Taj Hotel, Delhi. The respondent persuaded Miss ‘X’ to accompany him while taking dictation from the chairman, so that her typing was not found fault with. While Miss ‘X’ was waiting in the room, the respondent taking advantage of the isolated place tried to sit too close to her and touch her despite her objections; and tried to molest her physically in the lift while coming to the basement, but she saved herself by pressing emergency button, which made the door lift open. In appeal Of the case supreme court held that “In a case involving charge of sexual harassment or attempt to sexually molest, the courts are required to examine the broader probabilities of case and not swayed away by insignificant discrepancies or narrow technicalities or dictionary meaning of the expression ‘molestation’ or ‘physical assault’….. The sexual harassment of a female employee at the place of work is incompatible with the dignity and honour of a female and need to be eliminated and that there can be no compromise with such violation”.

iv) In Railway Board vs. Chandrima Das,
It was a case of gang-rape of a Bangladeshi national by the employees of the Indian Railway in a room at Yatriniwas at Howrah station. These employees managed the ‘Yatriniwas’ the government contended that it could not be held liable under the law of torts as the offence was not committed during the course of official duty. However, Hon’ble court didn’t accepted this argument and stated that the employees of union of Indian, who are deputed to run the railways and to manage the establishment, including the Railways station and Yatrinivas are essential components of the government machinery which carries on the commercial activity. If any such employee commits an act of tort, the Union Government of which they are the employees can, subject to other legal requirement being satisfied be held vicariously liable in damages to the person wronged by the those employees. The victim was awarded by Supreme Court with a compensation of R.s 10 lakhs for being gang raped in Yatriniwas of railway. Since the right is available to non-citizens also, the reach of the right is very wide.

v) Mohd. Ahmed Khan vs. Shah Bano Begum In the judgment of this case created uproar in Muslim Community. A five Judges Bench of the Supreme Court declared that a Muslim husband having sufficient means must provided maintenance to his divorced wife who is unable to maintain herself. Such a wife is entitled to the maintenance even if she refuses to live with Muslim husband because he has contracted another marriage within the limits of four wives allowed to him by Quran. The Bench declared that a Muslim divorced woman who cannot maintain herself is entitled to get maintenance from her former husband till the time she gets remarried. They rejecting the plea that maintenance is payable for the iddat period only. Pointing to the aiyats of the Quran, the Judges declared that the Quran imposes an obligation to provide maintenance to the divorced wife. The judges also rejected the contention that deferred Mahr (dower) is a payment on the divorce of a wife and hence such payment under the personal law excludes the payment of any maintenance by the husband in consideration of marriage. They observed that according to Quran, the dower is a consideration and mark of respect for the Muslim woman instead of being a consideration for divorce. The learned judges stated that the religion professed by spouse has no place in the scheme of Section 125 Cr. P.C. which is measure of social justice to prevent vagrancy and destitution. The court held that if there is any conflict between personal law and Section 125 Cr.P.C. then it is clear form the language of the Section that it over-rules the personal law. This judgment created a storm and priests of Islam started agitation.

vi) Bodhisattwa Gautam vs. Subhra Chakraborty, the complainant Subhra Chakraborty was a student of the Baptist College, Kohima and the accused Sri Bodhisattwa was a lecture in that college. According to the FIR field by the complainant and cohabited with her, giving her a false assurance of marriage but also fraudulently went through a certain marriage ceremony with knowledge and thereby dishonestly made the complainant before the God he worshipped by putting her vermilion on her forehead and accepted her as his wife but later refused to recognise her as his life partner. The said ceremony made the complainant to believe that she was lawfully married wife of the accused. In this landmark case the Supreme Court ordered the accused to pay Rs. 1000 per month as a interim compensation to the victim of rape during the pendency of the criminal case. Referring to the pitiable condition of women in society Mr. Justice Saghir Ahmad observed that ‘’unfortunately, a woman in our country, belongs to class or group of society who are in disadvantaged position on account of several social barriers and impediments and have therefore, been victims of tyranny at the hands of men with whom they, unfortunately, under the constitution ‘’enjoy equal status’’. ”Women also have the right to life and liberty; they also have the right to be respected and reacted as equal citizens. Their honour and dignity cannot be touched or violated. They also have the right to lead an honourable and peaceful life.”

vii) In Deelip Singh vs. State of Bihar, Court held that consent given a women believing the man’s promise to marry her would fall within the expression ‘without her consent’ vide clause (ii) to section 375, I.P.C, only if it is established that from the very inception the man never really intended to marry her and the promise was a mere hoax. When prosecutrix had taken a conscious decision to participate in the sexual act only on being impressed by the accused’s promise to marry her and the accused’s promise was not false from its inception with the intention to seduce her to sexual act, clause (ii) to section 375 I.P.C. is not attracted and established. In such a situation the accused would be liable for breach of promise to marry for which he will be liable for damages under civil law. False promise to marry will not ipso facto make a person liable for rape if the prosecutrix is above 16 years of age and impliedly consented to the act.

vii) Madhukar Narayan Mardikar vs. State of Maharashtra, The High Court observes that since Banubi is an unchaste woman it would be extremely unsafe to allow the fortune and career of a Government official to be put in jeopardy upon the uncorroborated version of such a woman who makes no secret of her illicit intimacy with another person. She was honest enough to admit the dark side of her life. Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. So also it is not open to any and every person to violate her as and when he wishes. She is entitled to protect her person if there is an attempt to violate it against her wish. She is equally entitled to the protection of law. Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard.

OBSERVATION:- Thus, it is observed that not only the legislature but judiciary also plays a very vital and important role in case of women empowerment. Judiciary empowers the women by its both traditional and by its activist role. The traditional role of judiciary is to provide justice through interpretation of laws. Some times through the wide interpretation of provision of various legislation and also the provision of constitution judiciary is able to empower the women. Another role of judiciary is the activist role which is popularly known as “Judicial Activism’’. Where there is no specific law for a specific offence in that case judiciary applies its activist power. As our society is dynamic, the need of the society is also dynamic. Because of the rigidity of law or because of the long and time taking procedure of enactments of laws by legislature, it is unable to keep pace with the fast changing society. There is always a gap between the advancement of the society and the legal system prevailing in it. This is sometimes causes hardship and injustice to the people. Now women empowerment is a burning issue of our country. And this concept is in progress. So, there are so many areas of women empowerment where there is no law for the protection of women, in that case judiciary is the last hope. Because only judiciary can give justice by applying its activist power e.g. we have already discussed vishakha case where the question regarding the sexual harassment of women in working places was raised and on this area there is no law at that time judiciary by judicial activism declared some guidelines for the protection of women from sexual harassment of women in working place. This guideline was provided by Supreme Court in the year of 1997 and the Bill titled as Protection of Women against Sexual Harassment at Workplace was produced before parliament in 2010 but Bill is still pending. That means the need of the society is realized by the parliament after 13 years. In case of compensation jurisprudence also judiciary is relaised need to compensate the victim but in criminal law there is no such specific law regarding the compensation jurisprudence. So, it is clear that through judicial activism judiciary is also able to provide progress in the area of women empowerment.
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# http://en.wikipedia.org/wiki/Judicial_activism (Retrieved on July 2011)
# S. P. Sathe : Judicial Activism in India ; Oxford University Press; P.25
# Mr. Justice A.M Ahmadi (Rtd): ‘’Dimensions of Judicial Activism”, JT 2003 Journal, P-1-2.
# "http://en.wikipedia.org/wiki/Judiciary ( Retrieved on 20 th July, 2011)
# Ibid
# Prof. Narender Kumar : Constitutional Law of India ; Allahabad Law Agency; 5 th ed 2006; P.590
# Prof. U.P.D. Kesari : Lectures On Administrative Law ; Central Law Publications; 17 th ed 2008; P.485
# AIR 1967 SC 1643
# AIR 1973 SC 1461
# AIR 1980 SC 1789
# AIR 1982 SC 149
# S.P. Sathe : Judicial Activism in India ; oxford University press ; P. 249
# AIR 1981 SC 1829
# AIR 1997 SC 3011
# Ibid
# Ibid at 3017
# AIR 1999 SC 625
# Ibid
# (2000) 2 SCC 465
# (1985) Cri. L.J. 875 S.C.
# (1996)1 SCC 490
# Ibid
# Dr. J.N. Pandey; Constitutional Law of India; Central Law Agency; 41 ed 2004; P.259
# (2005) 1 SCC 88
# AIR 1991 SC 207
# AIR 1997 SC 3011

The  author can be reached at: subhashreemukherjee@legalserviceindia.com

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