Gender justice through public interest litigation: case studies from India.

• Author: Sood, Avani Mehta

ABSTRACT

This Article examines the application of the Supreme Court of India's enterprising Public Interest Litigation (PIL) mechanism to a subject of compelling global concern." violations of women's rights. India is currently receiving much international attention for its dynamism and innovation on various fronts, yet the country also remains steeped in centuries-old norms and conventions. This tension is reflected in the decisions of the Supreme Court, which has assumed an active role in enforcing women's rights through PIL but is sometimes limited in this regard by the complex cultural context in which it operates. Based on an analysis of Indian constitutional law, case studies of landmark Supreme Court decisions, and extensive interviews with stakeholders in India, the Author argues that the PIL vehicle has great potential for advancing gender justice. However, the success of this endeavor in a society that is rapidly evolving--yet still deeply patriarchal-- will depend upon strategic mobilization by women's rights advocates and committed efforts by the Court to enforce the rights of women, independent of mainstream opinion and within the boundaries of the separation-of-powers doctrine. If India can assume a leading role in advancing gender justice through its judiciary, its PIL mechanism could serve as an inspiring model for other constitutional courts and international human rights bodies.

TABLE OF CONTENTS I. INTRODUCTION II. PUBLIC INTEREST LITIGATION IN INDIA A. Expansion of Locus Standi to Address Rights Violations B. Collaborative Nature of PIL Proceedings C. Involvement of Third Parties D. Expanded Role of the Court E. Effects of the Court's PIL Activism 1. Public Popularity and Support 2. Danger of Judicial Overreaching 3. Legislative and Executive Responses III. LEGAL FRAMEWORK A. Key Constitutional Provisions 1. Fundamental Rights a. Rights to Equality and Non-Discrimination: Articles 14 and 15 i. Paternalism in the Court's Equality Jurisprudence ii. Compromised Approach to Discriminatory Personal Laws b. Right to Life: Article 21 i. Right to Health ii. Right to Privacy 2. Directive Principles B. Applicability of International and Comparative Law 1. Status of International Law in the Indian Legal System 2. Impact of Comparative Law IV. CASE STUDIES A. Vishaka v. State of Rajasthan 1. Background 2. Judgment 3. Response 4. Impact 5. Importance of Context B. Javed v. State of Haryana 1. Background 2. Judgment a. Equality and Nondiscrimination Claims b. Religious Freedom Claim 3. Response and Context 4. Impact V. CHALLENGES AND LIMITATIONS A. Contextual Challenges 1. Challenges of Mobilizing and Collaborating 2. Shortcomings in Judicial Recognition of Women's Rights 3. Gender Composition of the Judiciary B. Limitations of the PIL Mechanism 1. Implementation of the Court's Directives 2. Backlash against the PIL Vehicle VI. STRATEGIC CONSIDERATIONS A. Building Public Awareness and Support B. Involvement of the Media C. Role of National Statutory Bodies 1. National Commission for Women 2. National Human Rights Commission 3. Involving the Statutory Bodies D. Alternative Forums VII. CONCLUSION I. INTRODUCTION

India's emergence as a leading player in international business and politics is increasingly drawing global attention to the nation's approach toward redressing and preventing violations of fundamental human rights, including the rights of Indian women. This Article examines the potential for promoting gender justice through the Supreme Court of India's pioneering Public Interest Litigation (PIL) mechanism. (1) Using this judicially created procedural vehicle, any individual or organization concerned with ongoing human rights violations can bring an action directly in the country's highest court against the national and state governments of India. (2) Through PIL, the Court has actively addressed issues of public concern and prodded the other branches of government into fulfilling their legal obligations. (3)

This Article aims to make a unique contribution to the understanding of the PIL mechanism and its capacity for securing gender justice by drawing not only upon analyses of Indian constitutional law and case studies of landmark Supreme Court decisions, but also upon a range of perspectives gathered through in-depth interviews with approximately sixty-five stakeholders in the PIL process in India, including: leading public interest lawyers; human rights activists; former and current Supreme Court Justices and high court judges; as well as social scientists, journalists, underprivileged women, and senior officials at the National Human Rights Commission, the National Commission for Women, and the Law Commission of India. (4) Based upon this extensive primary research, the Author argues that the PIL mechanism has great potential for advancing women's rights in India and therefore provides a compelling prototype for achieving this goal in other constitutional courts and international human rights bodies. Indeed, the growth of PIL in the Indian legal system illustrates that this innovative method of advocacy can thrive even in an adversarial and precedent-bound common law jurisdiction. However, the analysis also confronts some of the significant limitations of the PIL mechanism and the broader challenges of enforcing gender equality in a patriarchal society in which women are not sufficiently politically mobilized. These conditions create a complex cultural context for gender rights litigation, one found in many regions of the world. (5)

Part II of this Article introduces the key features of PIL and considers the responses to the Indian judiciary's activism through this powerful mechanism. Part III analyzes the Indian constitutional and international legal framework for promoting the rights of women through PIL. Part IV presents case studies of two critical Supreme Court decisions: Vishaka v. State of Rajasthan, a 1997 PIL action in which the Court used international law to enact guidelines for combating sexual harassment in the workplace; and Javed v. State of Haryana, a 2003 case in which the Court succumbed to public fears about population explosion by upholding a coercive state policy with adverse consequences for human rights, particularly for women. (6) The case studies illustrate variations in the Court's approach toward gender justice as well as the crucial importance of popular opinion and mobilization in PIL actions. Part V confronts some of the contextual challenges of enforcing women's rights through the judicial system in India and some limitations specific to the PIL mechanism itself. Finally, Part VI suggests counteracting these obstacles by strategically engaging the public, the media, national statutory bodies, and lower courts in PIL cases. Although the scope of this Article is confined to litigation at the Supreme Court level, PIL suits can also be initiated in the high courts of each Indian state--the advantages of which are reviewed briefly in Part VI.

The procedurally flexible PIL vehicle can be used very effectively for the advancement of gender justice. However, the success of this endeavor in a society that is rapidly evolving--yet still largely governed by traditional gender norms--will depend upon effective mobilization by women's rights advocates and committed efforts by the Court to enforce the constitutional and international rights of women, independent of mainstream opinion and within the boundaries of the separation-of-powers doctrine. If India can assume a leading role in advancing gender justice through its judiciary, its PIL mechanism could serve as an inspiring model for other legal systems around the world.

2. PUBLIC INTEREST LITIGATION IN INDIA

   The development of PIL was spearheaded in the late 1970s and 1980s through a series of decisions issued by Indian Supreme Court Justices, whose goal was to "promote and vindicate public interest[,] which demands that violations of constitutional or legal rights of large numbers of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and unredressed." (7) Noting that a "right without a remedy is a legal conundrum of a most grotesque kind," the Court regarded itself as constitutionally obligated to develop a mechanism to broaden access to justice. (8) "We have therefore to abandon the laissez faire approach in the judicial process ... and forge new tools, devise new methods and adopt new strategies for the purpose of making fundamental rights meaningful for the large masses of people," the Court stated in a seminal 1984 PIL decision on the rights of bonded laborers. (9)

   The Court derives its jurisdiction over PIL actions from Article 32 of the Constitution of India, which guarantees "the right to move the Supreme Court by appropriate proceedings" for the enforcement of fundamental constitutional rights. (10) The language of Article 32 is very broad; it does not specify how or by whom the judiciary can be moved to take action. (11) Consequently, the Court has observed: "The Constitution makers deliberately did not lay down any particular form of proceeding for enforcement of a fundamental right[,] nor did they stipulate that such proceeding should conform to any rigid pattern or straight-jacket formulas." (12) Furthermore, unlike in the United States, where the doctrine of judicial review was developed through case law, the Indian Constitution explicitly grants the Court this power. (13) The Constitution also provides the Court with extremely broad jurisdiction, enabling it to "decide nearly any issue that arises in Indian politics." (14) The Court relied on these potent provisions and its other "incidental and ancillary" constitutional powers to introduce the procedurally flexible and substantively powerful PIL mechanism. (15)

   Through PIL, the Court has addressed a very wide range of human rights issues, including rights abuses suffered by women. (16)...