Judicial Activism in the Area of Women Empowerment

Judicial Activism in the Area of Women Empowerment Introduction 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 19! ortune #aga$ine article titled %&he Supreme 'ourt( 19!). rom the very beginning the term Judicial Activism has become a subject of controversy in *ndia. Attempts have been made to curb the power of the court as well as allow access to them. *n the past+ several indirect methods were used to discipline the judiciary+ such as supersession of judges or transfers of inconvenient  judges. *t has often been said that the courts usurped the functions allotted to the other organs o rgans of  government on the other organs of government. ,n the other hand+ the defenders of Judicial Activi Activism sm say that the courts courts have have perfor performed med their their legiti legitimat matee functi function. on. Accor Accordin ding g to A.# A.# Ahmadi+ Ahmadi+ Judicial Judicial Activism Activism is a necessary necessary adjunct of the function since the protection protection of public 1 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. *t may be understood as the role of the court in stepping out from its normal interpretative role. hen the court moves beyond its normal role of mere adjudicator of disputes and becomes a player in the system system of the country laying down  principles and guidelines that the /xecutive must carry out+ that role of the court may be said to  be Judicial Activism. 0erception 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 *n our country Judiciary is 2nown as the independent wing of government. &his independent Judiciary has two roles- 314 &he traditional role i.e. to interpret the laws+ and another is 34 Judicial activism i.e. to go beyond the statute and to exercise the discretionary power to provide  justice5. &hese roles are as follows(

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14 The Traditional Role of Judiciary ;asically the traditional role of the judiciary is interpretation of statutory and constitutional provisions for providing justice. &he judiciary 3also 2nown as the judicial system or judicature4 is the system of courts that interprets and applies the law in the name of the state. &he judiciary also provides a mechanism for the resolution of disputes. nder the doctrine of the separation of powers+ the judiciary generally does not ma2e law 3that is+ in a plenary fashion+ which is the responsibility of the legislature4 or enforce law 3which is the responsibility of the executive4+ but rather interprets law and applies it to the facts of each case. &his branch of government is often tas2ed with ensuring eao explains the function of the judiciary as thus( i.

*t is a balancing wheel of the federation.

ii.

*t 2eeps e
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*t controls the Administrative &ribunals:.

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. 0art *** and *@ of *ndian 'onstitution are significant in the direction of Social Justice and economic development of the citi$ens. Judiciary can promote social justice through its  judgments. hen any
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rights and e
Faw is powerless and re
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redressal of grievances. &his ac2nowledged that the legal process carried with itself certain disadvantages for the poor+ deprived and underprivileged. Ience+ 0.G. ;hagwati+ J.+ and =rishna *yer J. initiated a stream of judicial activism. *n the traditional concept of judiciary+ the judge is depicted by an image+ where the eyes of the  judge are covered by dar2 cloth with hands holding the balance. &his obviously means that the  judges are supposed to have a very open mind on every issue without having any personal opinions at all. >ightly or wrongly+ *ndian 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. &his perspective regarding the judiciary has undergone sea change in recent times and this change is 2nown as Judicial Activism1.

Judicial Activism in the Area of Women Empowerment &he realist school of jurisprudence exploded the myth that the judges merely declared the preexisting law or interpreted it and asserted that the judges made law. *t stated that the law was what the courts said it was. &his is 2nown as legal scepticism and was really a reaction to AustinBs definition of law as a command of political sovereign. According to Analytical Jurisprudence+ a court merely found the law or merely interpreted the law. *ndian Supreme 'ourt not only ma2es law+ as understood in the sense of the realist jurisprudence+ but actually has started legislating exactly in the way in which a legislature legislates. Judicial law ma2ing means in realist sense is what the court does when it expands the meanings of the words personal libertyB or due process of lawB or freedom of speech and expressionB15. Judges are applying the discretionary power to provide better justice to women in the new context of the Socio-/conomic conditions. Judiciary has played an active role in enforcing and strengthening the constitutional goals towards protection of rights of the women of the land. &he courts in *ndia have tried to interpret laws in consonance with the international treaties and conventions. Some of the major cases are enumerated below.

1) Air India v. ar!esh "ir#a 1$

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Judiciary has made immense contribution to stri2e the balance between discrimination caused to the wor2ing women and availing them of justice against such discrimination. *n  !ir India vs.  "ar#esh Meer$a+ the Air *ndia and *ndian Airlines regulations were challenged as violative of Article 1. >egulation E provided that an air Iostess was to retire from service upon attaining the age of 5: years or on marriage if it too2 place within four years of her joining service or on first pregnancy+ whichever occurred earlier. >egulation ! empowered the #anaging Cirector+ at a time beyond the age of retirement+ upto the age of : years+ if an Air  Iostess was found medically fit. &he Supreme court struc2 down the >egulation providing for  retirement of the Air Iostess on her first pregnancy+ as unconstitutional+ void and violative of Article 1. &he 'ourt explained that the >egulation did not prohibit marriage after four years of joining service and if an Air Iostess after having fulfilled the first condition became pregnant+ there was no reason why pregnancy should stand in the way of her continuing in service. After  utili$ing her service for four years+ to terminate her service if she became pregnant+ court said+ amounted to compelling the poor Air Iostess+ not to have any children. *t thus amounted to interfere with and divert the ordinary course of human nature. *t was held not only a callous and cruel act but an open insult to *ndian omanhood. 'ourt also said that it was not only manifestly unreasonable and arbitrary but contained the e
2) %isha&ha v. 'tate of Ra(asthan 1 @isha2ha+ a non-governmental organi$ation wor2ing for gender eajasthan in 199. &he assault was an act of revenge as the saathin had intervened to prevent a child marriage. Supreme 'ourt provided a landmar2 judgment in the area of sexual harassment against women. As in this particular aspect there is no law or enactment by the legislature that is why here the judiciary applied its activist  power and provided with some guide lines. Some of the guidelines are as followsi.

Cuty of employer or other responsible persons in wor2 places and other institution towards women employees to prevent the commission of acts of sexual harassment.

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'ourt also defined sexual harassment. Sexual harassment includes( such unwelcome sexually determined behaviuor as( a4 0hysical contact and advances8  b4 a demand or re
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c4 Sexually coloured remar2s8 d4 Showing pornography8 e4 Any other unwelcome physical+ verbal or non-verbal conduct of sexual nature. iii.

'ourt also provided guidelines to all employers public or private for ta2ing preventive steps.

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hat type of criminal proceeding is re
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Cisciplinary action should be ta2en against the offender.

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'omplaint #echanism is also suggested by court.

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'omplaint committee is re
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&here is a need of wor2erBs initiative.

ix.

&here is need of awareness among female employees about their rights.

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'ourt provided the guidelines in case of third party harassment.

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'entral6State overnments are re
xii.

&hese guidelines will not prejudice any rights available under the protection of Iuman >ights Act+1995.

After providing the guidelines the court said %Accordingly+ we direct that the above guidelines and norms would be strictly observed in all wor2 places for the preservation and enforcement of  the rights to gender e
*) Apparel E+port ,romotion -ouncil v. A.. -hopra 1/ &he accused?respondent tried to molest a women employee 3Secretary to 'hairman of a Celhi  based Apparel /xport 0romotion 'ouncil4 #iss K. 3name withheld4+ a cler2 cum typist on 1th August+ 19HH at &aj Iotel+ Celhi. &he respondent persuaded #iss KB to accompany him while ta2ing dictation from the 'hairman+ so that her typing was not found fault with. hile #iss KB 16 A*> 1999 S' E:

was waiting in the room+ the respondent ta2ing 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 of the lift to open. *n appeal of the case Supreme 'ourt held that %*n a case involving charge of sexual harassment or attempt to sexually molest+ the courts are re
$) In Railway 0oard v. -handrima as 1 *t was a case of gang-rape of a ;angladeshi national by the employees of the *ndian >ailway in a room at Matriniwas at Iowrah station. &hese employees managed the MatriniwasB. &he government contended that it could not be held liable under the law of torts as the offence was not committed during the course of official duty. Iowever+ IonBble court didnBt accepted this argument and stated that the employees of nion of *ndia+ who are deputed to run the railways and to manage the establishment+ including the >ailway station and Matrinivas are essential components of the government machinery which carries on the commercial activity. *f any such employee commits an act of tort+ the nion overnment of which they are the employees can+ subject to other legal res. 1D Fa2hs for being gang raped in Matriniwas of railway. Since the right is available to non-citi$ens also+ the reach of the right is very wide.

) "ohd. Ahmed han v. 'hah 0ano 0e!um13 &he judgment of this case created uproar in #uslim 'ommunity. A five Judges ;ench of the Supreme 'ourt declared that a #uslim husband having sufficient means must provide 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 #uslim husband because he has contracted another  marriage within the limits of four wives allowed to him by Nuran. &he ;ench declared that a 17 3DDD4  S'' E:

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#uslim divorced woman who cannot maintain herself is entitled to get maintenance from her  former husband till the time she gets remarried. &hey rejected the plea that maintenance is  payable for the iddat period only. 0ointing to the Aiyats of the Nuran+ the Judges declared that the Nuran imposes an obligation to provide maintenance to the divorced wife. &he judges also rejected the contention that deferred #ahr 3dower4 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. &hey observed that according to Nuran+ the dower is a consideration and mar2 of respect for the #uslim woman instead of being a consideration for  divorce. &he learned judges stated that the religion professed by spouse has no place in the scheme of Section 1: 'r. 0.'. which is measure of social justice to prevent vagrancy and destitution. &he court held that if there is any conflict between personal law and Section 1: 'r.0.'. then it is clear form the language of the Section that it over-rules the personal law. &his  judgment created a storm and priests of *slam started agitation.

/) 0odhisattwa 4autam v. 'u5hra -ha&ra5orty 16 &he complainant Subhra 'ha2raborty was a student of the ;aptist 'ollege+ =ohima and the accused Sri ;odhisattwa was a lecture in that college. According to the *> filed by the complainant the accused not only cohabited with her+ giving her a false assurance of marriage but also fraudulently went through a certain marriage ceremony with 2nowledge and thereby dishonestly made the complainant before the od he worshipped by putting vermilion on her  forehead and accepted her as his wife but later refused to recognise her as his life partner. &he said ceremony made the complainant to believe that she was lawfully married wife of the accused. *n this landmar2 case the Supreme 'ourt ordered the accused to pay >s. 1DDD per  month as an interim compensation to the victim of rape during the pendency of the criminal case. >eferring to the pitiable condition of women in society #r. 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 e
) eelip 'in!h v. 'tate of 0ihar 21

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'ourt held that consent given by a woman believing the manBs promise to marry her would fall within the expression without her consentB vide clause 3ii4 to section 5!:+ *.0.'+ 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. hen prosecutrix had ta2en a conscious decision to participate in the sexual act only on being impressed by the accusedBs promise to marry her and the accusedBs  promise was not false from its inception with the intention to seduce her to sexual act+ clause 3ii4 to section 5!: *.0.'. is not attracted and established. *n 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. alse promise to marry will not ipso facto ma2e a person liable for rape if the prosecutrix is above 1E years of age and impliedly consented to the act.

3) "adhu&ar arayan "ardi&ar v. 'tate of "aharashtra 22 &he Iigh 'ourt observes that since ;anubi is an unchaste woman it would be extremely unsafe to allow the fortune and career of a overnment official to be put in jeopardy upon the uncorroborated version of such a woman who ma2es no secret of her illicit intimacy with another   person. She was honest enough to admit the dar2 side of her life. /ven a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he li2es. 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 e
-onclusion *t 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. &he traditional role of judiciary is to provide justice through interpretation of  laws. Some times through the wide interpretation of provisions 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 2nown as %Judicial ActivismBB. here 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. ;ecause of the rigidity of law or because of the long and time ta2ing procedure of enactments of laws by legislature+ it is unable to 2eep pace with the fast changing society. &here is always a gap between the advancement of the society and the legal system prevailing in it. &his sometimes causes hardship and injustice to the people. Gow women empowerment is a burning issue of our country. And this concept is in progress. So+ there are so 21 3DD:4 1 S'' HH

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many areas of women empowerment where there is no law for the protection of women+ in that case judiciary is the last hope. ;ecause only judiciary can give justice by applying its activist  power e.g. @isha2ha case where the