Understanding Jurisprudence Of Judicial Legislation On Sexual Harassment Of Women At Workplace In India
Gender justice has been a burning issue in the last decade in India, especially in light of the increased focus by non-Governmental organizations and related women’s groups dealing with such issues enabling the emergence of an aware and educated civil society. With the opening of the gates of various service sectors for women, it was hoped that the presence of women colleagues would humanize the atmosphere at workplace and both the men and women should work together in a cordial atmosphere helping each other. In some establishments and service sectors, where the employers took adequate steps to create a safe working culture for women, the atmosphere has positively changed. But in some areas of service sector the women employees still do not feel comfortable and secure because of the adverse working environment and harassing attitudes of male colleagues. These women undergo the ordeal of sexual harassment and face humiliating circumstances created around them. This not only impedes their performance but also affects their mental health. Since it involves their dignity and honor, the victim women generally do not share such sufferings with other colleagues and other members of their families.
For a long time this substantial issue was not addressed by the government of India. The Legislature did not enact any legislation till 2011. With the emergence of a strong brand of judicial activism by the Supreme Court of India, the rights of women have been given immense importance by the courts, even where the legislature has failed to enact laws to this effect. When the pain and sufferings of working women aggravated to such a big extent then the Indian Judiciary took a milestone step in the year 1997 by formulating guidelines to protect working women from sexual harassment at workplace with the help of judicial legislation. The decision of the Supreme Court in Vishaka v. State of Rajasthan and others is a landmark one, which has laid the foundation for a new era of human rights jurisprudence in India.
This paper chiefly tries to understand the philosophy behind this process of judicial legislation by the Supreme Court of India specifically and particularly in the case of Vishaka. The first part of the paper discusses about the basic understanding and meaning of judicial legislation in India. The second part concentrates on the judgment given by the Supreme Court of India in the case of Vishaka. And the final part tries to understand various realist and sociological theories of jurisprudence on judicial legislation by Cardozo, Holmes and many other eminent jurists and their role in the legislation formulated by the Supreme Court in 1997.
Understanding Judicial Legislation In India
Judicial review has been defined as power of the Courts to review statutes or administrative acts and determine their Constitutionality. According to Dunner judicial review means the examination of Federal and State legislative statutes and the acts of executive officials by the Courts to determine their validity according to written Constitution. The doctrine of ‘separation of powers’ in its strict sense would assign law making entirely to the legislative wing of the State confining the role of the judiciary only to the interpretation of the law. At one time, therefore, it was considered almost a sacrilege to suggest that the Judges also make law, notwithstanding the acceptance of ‘Case Law’ as an acknowledged source of law. Effort was made to emphasize that the Judges did nothing more than to interpret the words of the enacted law. The clear affirmation that this impression was a myth and it is not indecent to suggest that judges make law came from Lord Reid in 1972 in his famous lecture.Acceptance of the role of the judges as ‘law makers’ is occasioned more by the change in the concept of the role of the Courts from a mere instrument of governance to an instrument of society meant for service of the people and implementation of the Rule of Law to preserve democracy.
As an ideology of the judicial process, ‘judicial activism’ implies the “use of the court as an apparatus for intervention over the decisions of policymakers through precedent in case law”. In doing so, the Court often creates law and seeks to play a greater part in the governance of a country through “allowing their personal views about public policy” to aid them in their decisions. The role of judges in such cases goes beyond the traditional “interpretative” role that has been assigned to them, and shifts to a model by which judges seek to make law, encroaching on the Separation of Powers doctrine, which forms the bedrock of the Indian constitutional system. When a Court strikes down a law in an “activist” manner, it places primacy upon its interpretation of a constitutional text, sidelining the opinion of the legislature or executive.
Not surprisingly, judicial activism has been extremely controversial from its very beginning. Opinions are divided as to whether an unelected body should exercise such power, and whether in doing so has the right to supersede an elected legislature. The extent to which the use of the term itself provokes such dislike from its detractors can be seen by the immediate branding of an opinion one dislikes as an example of judicial activism. Its supporters, on the contrary, argue that being an unelected body may give the Court greater wherewithal in making decisions with regard to the enunciation of individual rights which the legislature for some reason may be unable or unwilling to do.
Judicial Activism reinforces the strength of democracy and reaffirms the faith of public in the Rule of Law. If the judiciary was also to shut its door to the citizen who finds the Legislature as not responding and executive indifferent, the citizen would take to the streets and that would be bad both for the Rule of Law and democratic functioning of the State.
Judicial legislation means new legal rules made by judges. It means the power of the judicature to make rules for the regulation of their own procedure by adopting their delegated legislative powers. Judicial legislation varies from precedent whereby judges create new laws. Judicial legislation is to some extent unavoidable in the modern era for two reasons: (1) since modern society is dynamic, the legislature cannot possibly conceive of, and cater to, all the developments which may take place in the future. Hence there will be gaps in the statutory law which have to be filled in by judges (2) The Legislature may often be unwilling or incapable of making a modern law which is of pressing need, and then this job has sometimes to be done by the court.
The Indian Supreme Court in Sarojini Ramaswami v. Union of India observed:
“It used to be disputed that judges make law. Today, it is no longer a matter of doubt that a substantial volume of the law governing the lives of citizens and regulating the functions of the State flows from the decisions of the superior courts. ‘There was a time observed Lord Reid, ‘when it was thought almost indecent to suggest that judges make law – they only declare it……….But we do not believe in fairy tales any more’.”
In Keshavanand Bharti case, Maneka Gandhi’s new dimensions have been given to Articles 14 and 21 of the Indian Constitution are all law-making judgments.
The view that the legal system is gapless was challenged by the German jurist Heck and the French jurist Geny who demonstrated that the positive legal order was necessarily fragmentary and full of lacunae. They noted that there is always a certain sphere of discretion where the judiciary could create law within these gaps. According to Geny, this discretion should not be exercised arbitrarily but had to be based on objective principles.
Judicial Legislation occurs usually where there is a clear casus omissus i.e. gap in the statute the court can fill in it. But if there is no law, and hence there is no question of filling in the gap then also the Judiciary can step in the interest of the society.
Sexual Harassment At Workplace In India
The case of Vishaka v. State of Rajasthan which came before the Supreme Court in the year 1997, revealed the hazards to which a working women could be exposed if there was no check on the extreme depravity and perversion to which her fellow workers could sink. The Petitioner focused attention on societal aberration and sought directions for preventing sexual harassment of working women. In the absence of legislative measures, the Court felt the urgency of safeguards by an alternative mechanism to deal with the social need. The Supreme Court discussed the matter in depth and issued detailed guidelines to protect the working women from sexual harassment at workplace. The court observed:
“The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse. Independence of judiciary forms a part of our constitutional scheme. The international conventions and norms are to be read into them in the absence of enacted domestic law occupying the field when there is no inconsistency between them. It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law. The High Court of Australia in Minister for Immigration v. Teoh has recognized the concept of legitimate expectation of its observance in the absence of a contrary legislative provision, even in the absence of a Bill of rights in the Constitution of Australia”.
Sexual harassment includes such unwelcome sexually determined behavior as physical contacts and advances, sexually colored remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the women has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment.
In the view of the case and the fact that there was no enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at workplaces, the Supreme Court laid down the guidelines and norms for due observance at work places or other institutions, until a legislation was enacted for the purpose. The Court made it clear that this was done in exercise of the power available under article 32 of the Constitution for the enforcement of the fundamental rights and that this would be treated as the law declared by it under article 141 of the Constitution. The guidelines and norms prescribed by the apex Court are as under:-
1. Duty of the Employer or other responsible persons in work places and other institutions:
It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
For this purpose, sexual harassment includes such unwelcome sexually determined behavior (whether directly or by implication) as:
a) Physical contact and advances;
b) a demand or request for sexual favors;
c) sexually colored remarks;
d) showing pornography;
e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Where any of these acts is committed in circumstances where-under the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in Government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.
3. Preventive Steps:
All employers or persons in charge of work place whether in public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality to this obligation they should take the following steps :-
(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) 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 work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
4. Criminal Proceedings:
Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.
In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
5. Disciplinary Action:
Where such conduct amount to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
6. Complaint Mechanism:
Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.
7. Complaints Committee:
The complaint mechanism referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.
The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them.
The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.
8. Workers’ Initiative:
Employees should be allowed to raise issues of sexual harassment at workers’ meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.
Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.
10. Third Party Harassment:
Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.
12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.
Jurisprudence Of Judicial Legislation
In the given Section, the Scholar tried to understand the reasoning and the causes behind this legislative process. The factual background of the case, the presence of legislative vacuum, the already available domestic laws, the presence of international legal instruments and the philosophy propounded by various eminent Sociological and Realist jurists on judicial legislation were at the heart of the honorable judges when they delivered this historical verdict. The author has tried to throw light on each of the mentioned element.
The Factual Background Of The Case
The Supreme Court guidelines came about due to the gang rape of Bhanwari Devi by a group of Thakurs, as punishment for having stopped a child marriage in their family. This provoked women's groups and NGOs to file a petition in the Supreme Court of India and the result is the Supreme Court guidelines on sexual harassment at workplace.
Bhanwari Devi was a village-level social worker or a saathin of a development programme run by the State Government of Rajasthan, fighting against child and multiple marriages in villages. As part of this work, Bhanwari, with assistance from the local administration, tried to stop the marriage of Ramkaran Gujjar's infant daughter who was less than one year old. The marriage took place nevertheless, and Bhanwari earned the ire of the Gujjar family. She was subjected to social boycott, and in September 1992 five men including Ramkaran Gujjar, gang raped Bhanwari in front of her husband, while they were working in their fields. The days that followed were filled with hostility and humiliation for Bhanwari and her husband. The only male doctor in the Primary Health Centre refused to examine Bhanwari and the doctor at Jaipur only confirmed her age without making any reference to rape in his medical report. At the police station, the women constables taunted Bhanwari throughout the night. It was past midnight when the policemen asked Bhanwari to leave her lehenga behind as evidence and return to her village. She was left with only her husband's bloodstained dhoti to wear. Their pleas to let them sleep in the police station at night were turned down.
The trial court acquitted the accused, but Bhanwari was determined to fight further and get justice. She said that she had nothing to be ashamed of and that the men should be ashamed due to what they had done. Her fighting spirit inspired fellow saathins and women's groups countrywide. In the months that followed they launched a concerted campaign for justice for Bhanwari. On December 1993, the High Court said, “it is a case of gang-rape which was committed out of vengeance”. As part of this campaign, the groups had filed a petition in the Supreme Court of India, under the name ‘Vishaka’, asking the court to give certain directions regarding the sexual harassment that women face at the workplace. The Court was moved greatly after this brutal gang rape of a lady who was working for such a significant cause in the country.
The facts of the case made judges to think and feel for the pitiable and miserable conditions of women in the Country and this situation accompanied by the legislative absence (to be discussed in the later part) compelled the Court to take such an unexpected decision. The result is the Supreme Court judgment, which came on 13th August 1997, and gave the Vishaka guidelines.
Presence Of Legislative Vacuum
The judgment was pronounced in a situation when till 1997; there was simply no legal recognition of sexual harassment. The Supreme Court has exhibited admirable judicial activism in filling the gap existing in the Indian scenario, by incorporating the definition of sexual harassment as contained in General Recommendation 23 to Article 11 of UN Convention on Elimination of All Forms of Discrimination Against Women, 1979 (to be discussed in the later part).
This case is significant being among the first instances where, in the absence of clear statutory law, the Supreme Court used international treaty commitments to elucidate Indian law. The Supreme Court took note of the fact that the present civil and penal laws in the country do not adequately provide for specific protection of women from sexual harassment at places of work and that enactment of such legislation would take a considerable time. It is because of the tardiness of legislature and the indifference of the executive to address itself to the complaints of the citizens about the violation of their human rights and unfair treatment which provides the necessity for judicial intervention. Judiciary is always moved by an aggrieved person after traditional routes have failed. When the court is apprised of and is satisfied about the gross violations of basic human rights, it cannot fold its hands in despair and look the other way. The judiciary can neither prevaricate nor procrastinate. It must respond to the knock of the oppressed and the downtrodden for justice by adopting certain operational principles within the parameters of the constitution and pass appropriate directions in order to render effective relief.
The step was taken in order to provide an alternative mechanism in the absence of legislative measures to fulfill the felt and urgent social need and to provide safeguards against sexual harassment. As per Verma, C.J.I.
“The fundamental right to carry on any occupation, trade or profession depends on the availability of a safe working environment. Right to life means life with dignity. The primary responsibility for ensuring such safety and dignity through suitable legislation, and the creation of a mechanism for its enforcement, is of the legislature and the executive. When, however, instances of sexual harassment resulting in violation of fundamental rights of women workers under Articles 14, 19 and 21 are brought before us for redress under Art 32, an effective redressal requires that some guidelines should be laid down for the protection of these rights to fill the legislative vacuum.”
The judgment was given due to the increasing societal aberration, and in order to assisting in finding suitable methods for realization of the true concept of gender equality and to prevent sexual harassment of working women in all work places through judicial process by filling the vacuum in existing legislation. The Court to clarify its stand that it was not encroaching upon the legislative function spelt out that the guidelines it was providing, though to be treated as the law of the land were to continue only till such time as the legislature embarks on the exercise of drafting a law concerning sexual harassment at the workplace. Thus the Court tried to uphold the principle of Separation of Powers.
Enforcement Of Domestic And International Legal Instrument
The landmark decision of Vishaka v. State of Rajasthanis considered a milestone in a long drawn struggle for justice. It makes a significant rupture of the boundaries between the political sphere and society, between the home and the world, between the workplace and street, between the classes and the castes.
In this judgment, for the first time in India, guidelines were laid down for prevention and punishment of sexual harassment at the workplace. The Supreme Court held that each incident of sexual harassment results in a violation of the fundamental rights of gender equality and the right to life and liberty under the Indian Constitution. The Court further held that the fundamental right in the Indian Constitution ‘to practice any profession or to carry out any occupation, trade or business’ is also violated by incidents of sexual harassment.The Court stated that the fundamental right to life is depended on the ‘availability of safe working environment’ and that the right to life means life with dignity. The apex Court has held that gender equality includes protection from sexual harassment and the right to work with dignity, which is universally recognized as a basic human right. Equality in employment can be seriously impaired when women care subjected to gender specific violence, such as a sexual harassment at the workplace.
Supreme Court relied upon the Convention for Elimination of All Forms of Discrimination against Women (CEDAW) - an international document which India has both signed and ratified. This document deals in detail with sexual harassment at the workplace. Ordinarily, merely because the Indian Government signs or ratifies an international convention or treaty it does not automatically become part of the Indian law. It has to be given a legislative form and a Bill has to be passed in Parliament for it to acquire the status of law. Till this happens the treaty or convention merely remains an international commitment given by the Indian Government without necessarily having any national ramifications.
But the Supreme Court broke these shackles and held that if the Indian Government makes such commitments in international forum it shall be binding on the Government even within the nation and it will be treated as part of the national law unless there is a law within the country which is in direct conflict with such a law. Thus, if there was a conflicting Indian law on the issue of sexual harassment at the workplace the International convention could not be treated as part of the Indian law till such time as such law was amended or replaced by the legislature. However, since in respect of sexual harassment at workplace there was no conflicting national law, the international commitment as laid out in CEDAW would be treated as part of the Indian law. Since it was to be treated as part of the Indian law what the Supreme Court was doing was not creating any law but only declaring the law and filling up some gaps to better implement the already existing law.
After stating that ‘any international convention which was not inconsistent with fundamental rights and was in harmony with its spirit could be read into these provisions’, the Court formulated guidelines and incorporated the definition of sexual harassment from the General Recommendation 23 relating to violence and equality in employment under CEDAW.
Remarkably loud judicial innovations are exhibited in cases of sexual harassment at workplace. The decisions in sexual harassment cases exhibit very enthusiastic judicial activism protecting the rights of the victim in the absence of a legislative enactment. Thus the judicial response in sexual violence cases reflects progressive approach.
There is no gainsaying that each incident of sexual harassment at the place of work, results in violation of the Fundamental Right to Gender Equality and the Right to Life and Liberty- the two most precious fundamental rights guaranteed by the Constitution of India. It is a form of gender discrimination against women. The contents of the Fundamental Rights guaranteed in the Constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment and abuse and the courts are under a constitutional obligation to protect and preserve those fundamental rights. The sexual harassment of a woman at workplace is incompatible with the dignity and honor of a female and needs to be eliminated and that there can be no compromise with such violation admits of no debate.
The Constitution of India, with its chapters on Fundamental Rights and Directive Principles coupled with the federal system, inevitably threw new burdens on the judiciary. The court has tried to follow the maxim ‘boni judicis est ampliare jurisdictionem’. The Indian judiciary has tried to act on the maxim extensively where protection of fundamental rights or basic human rights are concerned.
Access to justice to protect their fundamental rights is almost illusory for the weaker sections of Indian humanity due to their poverty, ignorance and illiteracy. To them rights and benefits conferred by the Constitution meant nothing. Because of their handicap, they lacked the capacity to assert their rights. Thus, majority of the people of our country are subjected to denial of justice. The judiciary regards it as their duty to come to the rescue of the underprivileged to help them to reap the benefits of economic and social entitlements. The apex Court also felt the necessity of human rights for the personality development of human beings.
In point of fact, the courts in all countries have necessarily trusted with a certain power of making rules for cases not provided for previously; and even of modifying existing laws from time to time in order to carry out the current ideas of what is equitable, or to adapt them to the changing needs of the society.
The Indian Supreme Court relied on international and domestic sources of law while giving out this proactive and affirmative judgment. The Court condemned sexual harassment because it violates the fundamental rights of gender equality and the right to life and liberty that the Indian Constitution guarantees. Concentrating on Part III, the fundamental rights section of the Indian Constitution, the Court detailed the Articles that sexual harassment violates: Article 14 mandates equal treatment and protections for all Indian citizens; Article 15 prohibits discrimination based on religion, race, caste, sex, or place of birth; Article 19(1) (f) states that all Indian citizens are permitted to practice any profession; and Article 21 protects life and personal liberty. Furthermore, under Article 32 of Part III, the Court has the power to enact guidelines providing remedies to those women who have suffered harassment. The Court therefore used its Article 32 powers to ratify the fundamental right of working women to gender equality, which the Indian Constitution's provisions encompass.
After establishing the basic constitutional rights that sexual harassment violates, the Court turned to international human rights law. First, the Court acknowledged Article 51 (C) and Article 253 of the Indian Constitution as permitting the State to adopt any international treaty that promotes fundamental rights. To further promote the objectives of the constitutional guarantees, the Court read applicable international conventions into the Constitution. Thus, the Court asserted that international conventions help guard against sexual harassment. The Court also found support for its action under international law, both from treaty-based and customary law. In its analysis, the Court first cited principles from the 1995 Beijing Statement of the Independence of the Judiciary in the LAWASIA region ("Beijing Statement") to establish the propriety of its actions. Specifically, the Court noted the importance of the Beijing Statement's Article 10, which imposes duties on the judiciary to promote human rights and ensure equal protection under the law. Thus, the Beijing Statement provided a justification for the Court's issuance of guidelines in the human rights field. Once the Court established that international agreements supported the issuance of sexual harassment guidelines, it relied on provisions in human rights conventions specifically addressing women's rights and sexual harassment. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) mandates State action to eliminate gender based discrimination in employment and to ensure the rights to work and to work in safe working conditions. The Court recognized that sex-based violence, including sexual harassment, impairs the goal of equality in employment. Finally, the Court relied on international customary law, in addition to international conventions and domestic sources. International customary law represents one of the main sources of international law recognizing the right to gender equality.To qualify as international customary law, laws proscribing sexual harassment must enjoy general application and States must enact these laws out of a sense of legal obligation. States’ practice of condemning workplace sexual harassment as antithetical to gender equality is general and consistent, and therefore qualifies as customary. Further, countries prohibit sexual harassment out of a sense of legal obligation, thereby also making the practice customary. Thus the Indian Court, recognizing the significance of international norms, stated that the right to gender equality, as it is globally accepted, includes sexual harassment protections and the opportunity to work with dignity.
The Indian Supreme Court based its sexual harassment decisions on several documents, both domestic and international. The Indian Court might need to cite a greater variety of legal sources because no country-wide legislation existed in India specifically addressing the issue of sexual harassment. However, the Indian Court based its sexual harassment decisions not only on other sources of national law, but also on international conventions and international customary law. First, the Indian Court grounds its analysis in the Indian Constitution, thus recognizing the need for an Indian solution to a problem that is, in part, specific to Indian women as Indians. Women in India inhabit a complex space because of their many intersecting identities and identifications, cultural uniqueness, and national pride, and therefore experience a reality distinct from their Western counterparts. This distinct and complex identity may conflict with Western ideas of feminism and policies designed to help women. For example, Indian feminists' experience includes the impact of Western colonialism and imperialism, and is thus different from that of white feminists in the United States. Therefore, the Court's reliance on sources that reflect the importance of Indian women's cultural and national identifications both demonstrates respect for those identifications and increases the relevance and acceptability of the Court's initial solutions to the problem of sexual harassment in the Indian workplace.
Professor Sunder explains that Indian women, when responding to women's issues like workplace sexual harassment, struggle with often conflicting ideals concerning loyalty to Indian traditions and equality for women. To tackle sexual harassment, Indians must articulate and address the problem in a manner specific to their realities. Professor Sunder asserts that Indian feminists want protections against sexual harassment that integrate old nationalistic loyalties with new, Western-influenced thought and theory to shape their movement.
The Indian Court's deliberate reliance on Indian sources of law helps construct a nation-specific solution to problems of sexual harassment, as Professor Sunder advocates. Such an approach recognizes the identity of women in India as Indians, and the problems specific to the experience of being a woman in Indian society. For example, the Court cites Article 15 of the Indian Constitution, which prohibits discrimination based on, among other categories, religion, caste, and birthplace. These particular identities, in addition to gender, influence how Indian women are treated, or mistreated, in the workplace and beyond. Thus, the Court addresses factors that influence Indian women's experiences, revealing sensitivity to the fact that sexual harassment in the Indian workplace is a problem with distinctly Indian characteristics.
Second the Indian Court also relied on international human rights conventions and norms. Initially, critics may disparage the Court for depending on non-Indian legal sources in crafting Indian law. The Court, however, used the applicable international human rights covenants and norms as a-supplement to the Constitution. The deference the Court displayed to domestic constitutional provisions when interpreting and applying international conventions demonstrates that the Court viewed Indian constitutional guarantees as being of primary importance. This interpretation of international legal sources in light of Indian law is a nation- specific approach, for which Indian feminists advocated. The Indian Court's decision represents a middle ground between universalism and relativism, emphasizing and relying on rights found in the Indian Constitution, as well as international documents. At the same time, the Indian Court's citation of international conventions affords an admirably great amount of deference to the international community's mandates for gender equality. The Court cites international human rights documents and international customs that view gender equality as a fundamental human right. The international sources the Indian decision relies upon include women's rights provisions in international conventions, such as CEDAW and the ICCPR, and international custom.
The Court's impetus for establishing the preventative guidelines rests upon a singular conception of the Indian woman, rather than recognition of her complexity. However this in itself is not enough. The courts can only do so much and in order to protect the rights of women, it is imperative that the Legislature enacts laws for such purpose and ensures their strict compliance, or the steps taken by the Supreme Court will become ineffective.
The Sociological And Realistic Philosophies On Judicial Legislation
Sociological jurisprudence is a term coined by the American jurist Roscoe Pound to describe his approach to the understanding of the law. This philosophical approach to law stresses the actual social effects of legal institutions, doctrines, and practices. It examines the actual effects of the law within society and the influence of social phenomena on the substantive and procedural aspects of law.
Sociological jurists believe that abstract notions of rights should not bind judges. Instead, judges should consider the public interest and modern social conditions or “social facts” when interpreting the Constitution. Advocates of sociological jurisprudence also argued that the rule of law itself would sometimes need to be sacrificed to extralegal concerns. Sociological jurists believed that courts should consider public opinion when interpreting the Constitution because such opinion represented the evolving social mores of the community.
Roscoe Pound’s theory of Sociological Jurisprudence
# Law on the books is not law in action, a principle almost all would accept today.
# The life of the law is in its enforcement.
Sociological jurisprudence encouraged judicial activism and creativity in common law cases. In most circumstances, Pound argued, courts could achieve a "jurisprudence of ends" by devising legal doctrines that balanced the various social interests at stake in any case. Just as Dewey argued that "knowledge of the past is significant only as it deepens and extends our understanding of the present," so Pound claimed that "the function of legal history [was] one of illustrating how rules and principles have met concrete situations in the past and of enabling us to judge how we may deal with such situations in the present. Precedents, he maintained, should not be understood as "furnishing self-sufficient premises from which rules are to be obtained by rigid deduction. Thus, "the real genius of our common law" was its ability to give a fresh illustration of a principle to a concrete case, producing a workable and just re-suit.
On these grounds, Justice Benjamin Cardozo, another prominent proponent of sociological jurisprudence, stated that one of his rules for deciding cases was when the social needs demand one settlement rather than another, there are times when we must bend symmetry ignore history and sacrifice custom in pursuit of other and larger ends. As per his theory, a judge legislates only between gaps. He fills the open spaces in the law. How far he may go without traveling beyond the walls of the interstices cannot be staked out for him upon a chart. He must learn it for himself as he gains the sense of fitness and proportion that comes with years of habitude in the practice of an art. Even within the gaps, restrictions not easy to define, but felt, however impalpable they may be, by every judge and lawyer, hedge and circumscribe his action. They are established by the traditions of the centuries, by the example of other judges, his predecessors and his colleagues, by the collective judgment of the profession, and by the duty of adherence to the pervading spirit of the law. The law which is the resulting product is not found, but made. The process, being legislative, demands the legislator's wisdom.
The theory of the older writers was that judges did not legislate at all. A preexisting rule was there, imbedded, if concealed, in the body of the customary law. All that the judges did was to throw off the wrappings, and expose the statue to our view. Since the days of Bentham and Austin, no one, it is believed, has accepted this theory without deduction or reserve, though even in modern decisions we find traces of its lingering influence. Today there is rather danger of another though an opposite error. From holding that the law is never made by judges, the votaries of the Austinian analysis have been led at times to the conclusion that it is never made by anyone else. Customs, no matter how firmly established, are not law, they say, until adopted by the courts. Even statutes are not law because the courts must fix their meaning. That is the view of Gray in his “Nature and Sources of the Law”. “The true view, as I submit”, he says, “is that the Law is what the Judges declare; that statutes, precedents, the opinions of learned experts, customs and morality are the sources of the Law”. Jethro Brown in a paper on "Law and Evolution," tells us that a statute, till construed, is not real law. It is only "ostensible" law. Real law, he says, is not found anywhere except in the judgment of a court. In that view, even past decisions are not laws. The courts may overrule them. For the same reason present decisions are not laws, except for the parties’ litigant. Men go about their business from day to day, and govern their conduct by an ignis fatuus. The rules to which they yield obedience are in truth not law at all. Law never is, but is always about to be. It is realized only when embodied in a judgment, and in being realized, expires. There are no such things as rules or principles: there are only isolated dooms.
He thought that although a judge is obviously not a legislator in general, the judge does legislate new law in close cases to fill gaps between existing rules. Cardozo offered his theory as a departure from the traditional Blackstonian theory of “pre-existing rules of law which judges found, but did not make”. The traditional view would suggest that a good negative description of the task of a judge is that, whatever he does, he does not legislate. Adjudicating and legislating seem radically incompatible to each other.
While sociological jurisprudence ultimately came to be associated with legal Progressivism, its underlying rationale did not inherently require judicial deference to the legislature. It is for this reason that judiciary is understood to be playing a very major role in bring about the reform in the society to which the sociologists refer to as ‘social change.’ The general thrust of sociological jurisprudence that the "positive law cannot be understood apart from the social norms of the 'living law" is perhaps an appreciation and acknowledge of the fact that law being meant for the society, has to be ingrained and evolved through a legal system which keeps close contact with the developments taking place in the society and acts accordingly towards the change.
The Supreme Court of India showed its inclination towards sociological jurisprudence in the cases of Ashok Kumar Gupta & Ors. v. State of U.P. & Ors. when the Court observed:
“This Court, therefore, is not bound to accept an interpretation which retards the progress or impedes social integration; it adopts such interpretation which would bring about the ideals set down in the Preamble of the Constitution aided by Part III and IV”.
Thus it can be seen that the Court realizes its importance and role in determining the growth of the society and having realized its importance, the Court further perceives the importance of taking into account the aspects of the social conduct and the experience of the ages while determining new norms. When this sociological jurisprudence is to be understood in the Indian context, it can be stated with definitive that the Court has played a pro-active role in standing for bringing about a social change and here, standing for the rights and the dignity of the women, the Court in categorical terms held that it would not permit sexual harassment of women at work place.
Realist School of Jurisprudence
The realism is the anti-thesis of idealism. Some jurists refuse to accept the realist school as a separate school of jurisprudence. American realism is a combination of the analytical positivism and sociological approaches. It is positivist in that it first considers the law as it is. On the other hand, the law as it stands is the product of many factors. In as much as the realists are interested in sociological and other factors that influence the law. Their concern, however, law rather than society. Realists don’t give any importance to laws enacted by legislature. And they uphold only judge-made law as genuine law. A great role of judges’ understanding about law, society and also their psychology affect any judgment given by them. At the same time, in a same case applying same law two different judges give the different judgments.
According to Roscoe Pound, “Realism is the accurate recording of things as they are, as contrasted with things as they are imagined to be or wished to be or as one feels they ought to be”.
Realism denounces traditional legal rules and concepts and concentrates more on what the courts actually do in reaching the final decision in the case. In strict sense, realists define law as generalized prediction of what the courts will do. Realists believe that certainty of law is a myth and its predictability depends upon the set of facts which are before the court for decision. It presupposes that law is intimately connected with the society and since the society changes faster than law so there can never be certainty about law. They do not support formal, logical and conceptual approach to law. The realist school evaluates any part of law in terms of its effect. Jerome Frank has stated, “Law is what the court has decided in respect of any particular set of facts prior to such a decision, the opinion of lawyers is only a guess as to what the court will decide and this cannot be treated as law unless the Court so decides by its judicial pronouncement. The judges’ decisions are the outcome of his entire life history.
There are certain principal features of realistic jurisprudence as outlined by Karl Llewellyn and Prof. Goodhart:
1. There has to be a conception of law in flux and of the judicial creation of law.
2. Law is a means to social ends; and every part of it has constantly to be examined for its purpose and effects, and to be judged in the light of both and their relation to each other.
3. Society changes faster than law and so there is a constant need to examine how law meets contemporary social problems.
4. Realists believe that there can be no certainty about law and its predictability depends upon the set of facts which are before the court for decision.
5. They do not support formal, logical and conceptual approach to law because the Court while deciding a case reaches its decisions on ‘emotive’ rather than ‘logical’ ground.
6. They lay greater stress on psychological approach to the proper understanding of law as it is concerned with human behavior and convictions of the lawyers and judges.
7. Realists are opposed to the value of legal terminology, for they consider it as tacit method of suppressing uncertainty of law.
8. The realists introduced studies of case law from the point of view which distinguished between rationalization by a judge in conventional legal terminology of a decision already reached and the motivations behind the decisions itself.
9. The realists also study the different results reached by courts within the framework of the same rule or concept in relation to variations in the facts of the cases, and the extent to which courts are influenced in their application of rules by the procedural machinery which exists for the administration of the law.
Realist school differs from sociological school as unlike the sociological approach, realists are not much concerned about the ends of law but their main attention is on a scientific observation of law and its actual functioning. It is for the reason that some authorities have called realist school as the ‘left wing of the functional school.’ Some quarters feel that realist movement in the United States should not be treated as a new independent school of jurisprudence but only a new methodology to be adopted by the sociological school.
The Scholar tried to understand the various important realist theories before their application in India. In the given paper the Scholar has restricted to only American Realist theories of Jurisprudence. The theories are as follows:
1. Bad man Theory by Justice Holmes
The seeds of realism were sown by Justice Holmes. He said that Law is not like mathematics. Law is nothing but a prediction. According to him, the life of law is logic as well as experience. The real nature of the law cannot be explained by formal deductive logic. Judges make their decisions based on their own sense of what is right. In order to see what the law is in reality, he adopted the standpoint of a hypothetical ‘Bad man’ facing trial. Therefore his theory is known as Bad Man Theory. This theory says that a bad man successfully predicts the actual law than other people. Holmes said that law should be looked from bad man’s perspective. On the basis of this prediction Holmes defined the law as, “Prophecies (ability to predict) of what the court will do in fact and nothing more pretentious.”
2. Theory by Justice Gray:
John Chipman Gray only exhibited limited factors in common with the realists. For Gray the law was simply what the court decided. Everything else includes statutes, were simply sources of law. He said, “The law of the State or of any organized body of men is composed of the rules which the courts, that is, the judicial organs of that body, lay down for the determina
3. A Law Jobs Theory by Karl N. Llewellyn
According to Llewellyn realism means a movement in thought and work about law. Karl Llewellyn outlined the principle features of the realist approach. Which are as follows:-
1. There has to be a conception of law in flux and of the judicial creation of law.
2. Society changes faster than law, so there is a constant need to improve the law.
3. There has to be a temporary separation between is and ought for the purpose of study.
Karl Llewellyn described the basic functions of law as ‘law-jobs’. Law is an ‘institution’ which is necessary in society and which is comprised not only of rules but also contains an ‘ideology and a body of pervasive and powerful ideals which are largely unspoken, largely implicit, and which pass unmentioned in the books’. Law has jobs to do within a society. These are:
i. The disposition of the trouble case: a wrong a grievance a dispute. This is the garage-repair work or the going concern of society with its continuous effect upon the remarking of the order of society.
ii. The preventive channeling of conduct and expectation so as to avoid trouble, and together with it, the effective reorientation of conduct and expectations in similar fashion.
iii. The allocation of authority and the arrangement of procedures which mark action as being authoritative; which includes all of any constitution and much more.
iv. The positive side of law’s work is the net organization of society as a whole so as to provide integration, direction and incentive.
v. ‘Juristic method’ to use a single slogan to sum up the task of handling the legal materials and tools and people developed for the other jobs to the end that those materials and tools and people are kept doing their law-jobs, and doing them better, until they become a source of revelation of new possibility and achievement.
4. Fathers’ Symbol Theory: Jerome Frank
His classic work, “Law and the modern mind” presents a very close examination of judicial process and is full of practical illustrations. His thesis is that law is uncertain or certainty of law is a legal myth. He exploded the myth that law is continuous, uniform, certain and invariable and asserted that the judges do not make the law, instead they discover it. Frank observes that a judge’s decisions are the outcome of his entire life history. His friends, his family, vocations, schools, religion, all these factors are influential.
In this regard Jerome Frank has given the Fathers’ Symbol Theory. The child puts his trust in the power and wisdom of his father to provide an atmosphere of security. In the adult the counterpart of this feeling is the trust reposed in the stability and immutability of human institutions. Frank suggested that the quest for certainty in law is in effect a search for a ‘father-symbol’ to provide an aura of security, and although he attributed great prominence to this factor. He offered it only as a ‘partial explanation’ of what he called the ‘basic myth’, and listed fourteen other explanations as well.
Frank emphasized that law is not merely a collection of abstract rules and that legal uncertainty is inherent in it. Therefore mere technical legal analysis is not enough for understanding as to how law works. Frank accordingly divided realists into two camps, described as ‘rule skeptics’ and ‘fact skeptics.’ The ‘rule skeptics’ rejected legal rules as providing uniformity in law and tried instead to find uniformity in rules evolved out of psychology, anthropology, sociology, economics, politics etc. The ‘rule skeptics’ avoided that criticism by saying that they were not deriving purposive ‘ought’ but only predictions of judicial behavior analogous to the laws of science. Frank called this brand of realism the left-wing adherents of a right-wing tradition, namely, the tradition of trying to find uniformity in rules. The fact ‘fact skeptics’ rejected even this aspiration towards uniformity. He abandoned all attempts to seek rule-certainty and pointed to the uncertainty of establishing even the facts in trial courts. It is impossible to predict with any degree of certainly how fallible a particular witness is likely to be, or how persuasively he will lie.
Kelson, it will be remembered, maintained that it is not possible to derive an ‘ought’ from an ‘is’. The ‘rule-skeptics’ avoided that criticism by saying that they were not deriving purposive ‘ought’, but only predictions of judicial behavior analogous to the laws or science.
India in jurisprudence does not formally subscribe to the realist's legal philosophy; it does lay great stress on the functional aspect of the law to the realities of social life. Judicial activism has become as much fascinating as the judicial review, of course with certain amount of hostility controversy and apprehension. Judicial activism, therefore, has been viewed both with reverence and suspicion reverence in as much as the judicial review is the creative element of interpretation which serves as an omnipresent and potentially omnipotent check on the legislative and executive branches of government. It is a means of harmonizing the constitutional culture, constitutional value and constitutional democracy. Constitutional culture, value and democracy is affected by the political functions of the state which are embedded in popularity, and the judicial functions in relation to state are limited to seeking that popular action does not trespass upon right and justice as it exists in written constitution, As such proponents of judicial activism think that a powerful judiciary is essentially necessary to protect the rights, interests and entitlements of weaker sections of the society as well as the public interest at the hands of those who may be motivated by folly or injustice.
The Court's ratification of the anti-harassment guidelines suggests a motive beyond preventing sexual harassment. The rare proactive nature of the Court's action suggests that the Court thought it had to protect women at work in the absence of appropriate legislation. More explicitly, the language the Indian Court employed in both setting forth the anti-sexual harassment guidelines and writing its decision is rife with paternalistic suggestions. The guidelines refer to the harassed woman as a “victim,” implying her subordinated position. The Indian Court finds unwelcome behavior in any attempt to "outrage the modesty of a woman,” an offense under the Indian Penal Code. This Indian legal concept resembles U.S. courts’ decisions that determine unwelcomeness in relation to female demeanor, yet the Indian law is obviously more explicit. Instead of focusing on the men who do not control their sexual desire, the Court's interpretation of this provision centers on the behavior of the women whose modesty has been “outraged”. The Court's definition of sexual harassment in a criminal context, which specifically relates modesty to womanhood, places a burden on women, who are expected to behave in accordance with socially acceptable gender standards and roles. The Court's definition includes chastity of thought and conduct, decency, delicacy, propriety of dress, and an aversion to lewdness. If a woman does not act appropriately, protections against harassment may not apply to her.
The paternalistic approach of the Indian Court failed to recognize the complex nature of the female subject that anti-sexual harassment measures supposedly protect. Tangible factors, such as race and social class, and intangible factors, such as the distribution of power between the sexes, intersect with gender, and each other, to construct the identity of the subject of the harassment.
Not only this all these regulations will be helpful to the women working in the organized sector but the women working as maids, washing utensils, sweeping, selling vegetables, etc. are not being taken care of by the Judiciary. The informal sector and its harshness against women are not considered by the Supreme Court of India.
But still the unprecedented act by the judiciary cannot be sidelined. The Supreme Court has exercised in the best possible way by legislating on such an issue which was not being taken care of by any of the organs in the country till 1997 i.e. even after 30 years of independence. But it should be kept in mind that the initiative taken by the Court was not final but the first step. Therefore we cannot regard judicial legislation as the end and its exercise cannot override the importance of Legislature because the Legislature settles the law of the country, it brings clarity in the minds of its subjects and it is very lucid in its explanation. Thus it can be said that the in emergency situations for the larger interest of society judicial legislation can be of utmost importance but when there is need to bring a contemplated, clear, appropriate and proper law the Legislature should be given the highest priority.
# AIR 1997 Supreme Court 3011
# Dictionary of Constitutional and Parliamentary Terms, p. 256
# Joseph Dunner, “Dictionary of Political Science”, p. 285 (1965)
# Lord Reid, “The Judge as Law Maker” (1972)
# J.S. Verma, “Judicial Activism In An Asian Democracy”, speech delivered on 27 August, 1997 in 15th Law Asia Conference at Manila, Philippines, in New Dimensions of Justice, pp. 68-82 (2000 Edn., Universal Law Publishing Co. Pvt. Ltd., Delhi).
# “Separation of Powers, Judicial Review and Judicial Activism” - by Justice Markandey Katju available on
# Chief Justice, Anand, A., S., “JUSTICE FOR WOMEN, concerns and expressions” p. 49 (Anand Universal Law Publishing Co. Pvt. Ltd., Delhi)
# AIR 1992 SC 2219, (Paragraph 2)
# AIR 1973 SC 1461
# AIR 1978 SC 597
# 128 Aus LR 353
# Anjani Kant “Women and Law” p. 221(New Delhi: APH Publishing Corporation Ansari Road, 2008)
# Ibid at p.222
# Ibid at p.222
# Vandana , “Sexual Violence Against Women”, p.336 (Nagpur: Lexis Nexis Butterworths Wadhwa, 2009)
# Kant, Anjani, “Women and Law” p. 184(New Delhi: APH Publishing Corporation Ansari Road, Darya Ganj, 2008 )
# Chief Justice Anand, A., S., “JUSTICE FOR WOMEN, Concerns and Expressions”, p.51 (Delhi- Universal Law Publishing Co. Pvt. Ltd. 2002)
# Kannabiran, Kalpana & Kannabiran, Vasnath,” De-Eroticizing Assault- Essays on Modesty, Honour and Power, 68. 2002
# Article 19 (1)(g)
# Article 21
# AIR 1997 SC 3011, p 3012.
# Desai, Mihir, “INDIA TOGETHER: Satrting the Battle Against Sexual harassment”, Volume 4, Issue 1India Together (January-February 2005)
# Vandana, “ Sexual Violence Against Women”, p.336 & 337 (Nagpur: Lexis Nexis Butterworths Wadhwa, 2009)
# Ibid at p.340 & 341
# Chief Justice Anand, A. S., “ JUSTICE FOR WOMEN, concerns and expressions”, p.42 (Delhi- Universal Law Publishing Co. Pvt. Ltd., 2002)
# Ibid at p.49
# Ibid at p.48
# Sir Thomas Erskine Holland “Holland on Jurisprudence” p. 66 (Universal Law Publishing Co. Pvt. Ltd. 13 Ed.)
# Feld, Louise, “Along The Spectrum Of Women’s Rights Advocacy: A Cross-Cultural Comparison Of Sexual Harassment Law In The United States And India” Vol. 25 (1205-1280) FORDHAM INTERNATIONAL LAW JOURNAL,1256 (2002)
# Ibid at p. 1257
# Ibid at p. 1258
# Ibid at p. 1259
# Ibid at p. 1260
# Ibid at p. 1266
# Ibid at p. 1267
# Ibid at p. 1268
# Ibid at p. 1269
# Ibid at p. 1281
# Jain, Tarun, “Sociological Jurisprudence and Social Change: Tracing the Role of Supreme Court of India” Vol. 5, No. 3, The High Court Quarterly Review, pp. 82-102( 2009)
# Pound, Roscoe, “The Scope and Purpose of Sociological Jurisprudence”, 24 Harv. L. Rev. 596 (1911)
# Cardozo, Benzamin, N., “The Nature of the Judicial Process”, pp. 98-142 (Delhi- Universal Law Publishing Co. pvt. Ltd., 1961)
# Jain, Tarun, “Sociological Jurisprudence and Social Change: Tracing the Role of Supreme Court of India” Vol. 5 No. 3 The High Court Quarterly Review, pp. 82-102 (2009)
# (1997) 5 SCC 201
# Jimenez, Marco, “Finding the Good in Holmes's Bad Man”, Volume 79, Issue 5 Fordham Law Review p. 2069 (2011)
# William,Twining, “Two Works Of Karl Llewellyn-11” Volume 31, Issue 2, The Modern Law Review, p. 167 (May, 1968)
# Chen, Rui, “On Jerome Frank And His Constructive Skepticism”, 8, GEMC Journal, 100 (2013)
# Dubey, Rambabu & Shrivastava , Geeta “The Realistic School And Judicial Activism in India” Vol. XIIII Central Indian Law Quarterly, 433 (2000)
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