This article had been written by Nooransh Grover.

Abstract

It is a well known fact, that oppression and violence against women is not a recent phenomenon. Centuries have passed, yet women in our society have been subjected to various forms of atrocities. With time, as the society progressed and gates were opened for women at the workplace, it was thought that the principle of gender equality will soon be a reality. Men and women both will rise in society and will make a mark for themselves. It was thought that soon the stereotypes and prejudices against women would end. It was also believed that the atrocities and violence would also come to an end. But unfortunately, this wasn’t the case. Despite the perpetual advancement of society, crimes against women were still witnessed. With the emergence of the service sector, it was hoped that an amicable atmosphere would prevail where men and women would both work. But the darker truth prevailed as instances of sexual harassment of women at their workplace were reported. This has greatly affected their health, confidence and morale. Incidents such as these make women so vulnerable that they do not even feel to complain because of the disgust and shame that they shall face and tolerate the ill treatment of their male colleagues silently. 

The Indian Government had quite a neglecting attitude towards this issue and this attitude of the government had resulted in emergence of judicial activism wherein it was imperative for the judiciary to step in and protect infringement of rights of citizen. In the case of sexual harassment of women at their workplace, the judiciary stepped in and created guidelines for the safety of women at their workplace in the landmark Vishaka v. State of Rajasthan and others which was instrumental in laying a foundation of women safety laws in India.

In the course of this analysis, we shall delve into the subject of Sexual Harassment of Women at their workplace and understand the underlying thoughts and principles of jurisprudence.

Judicial Legislation in India

There is absolutely no doubt regarding the fact that to make laws or legislate is the domain of the legislature and the same is prescribed under Article 245 of the Indian Constitution. Though not expressly mentioned, there is an inherent feature of separation of powers between the organs of government as well as a system of checks and balances. But it is often seen that the legislature doesn’t make laws according to the prevailing circumstances. Thus it is the responsibility of the judiciary to step in order to maintain stability and law and order in the society. 

In India, this power is also vested with the judiciary. The judiciary has the prerogative to pass orders and decrees on any issue that comes before it or that it deems it necessary for the better good of the society. The judiciary from time to time has intervened and passed order in order to protect rights of citizens and save democratic values.

In the course of doing so, the courts often accused of making laws or invading into the domain of the legislature. It is often felt that in a system of separation of powers, a judiciary which is allowed to legislate in a manner shouldn’t be allowed. Its supporters argue that if an unelected body such as the judiciary in this case, is allowed to legislate, then it could lead to a situation of “Tyranny of the Unelected”.

But a fact can’t be denied that the legislature doesn’t always make laws keeping in mind the dire need of the issue. Hence for the sustenance of core democratic values and the rule of law within the society, judicial legislations are a necessity.

The Supreme Court in various judgments has laid out that judiciary can also play a pivotal role in securing rule of law on its own.

The Supreme Court in S. P. Gupta v. Union of India, Supreme Court Advocates-on Record Association vs Union of India, In re Special Reference 1 laid down the foundation of the Collegium System of appointment of judges. The Supreme Court despite being a system of appointment of judges laid down under Article 124 and 217 for the Supreme Court and High Courts respectively, had found faults within it and devised a new system on its own. This is a case wherein the judiciary, through its active participation has legislated in some sense for the larger cause.

The Supreme Court in the M.C Mehta v. Union of India, the Supreme Court had laid down the principle of absolute liability, one of the most important concepts of the Law of Torts. In this case the Supreme Court, in a case involving a company named Shri Ram Foods and Fertilisers, wherein there was an accidental leak of oleum gas from a factory which caused great damage to the people living nearby. The principle of absolute liability means that if a hazardous substance or thing is kept in a person’s possession, then if any damage occurs due to the escape of such substance, then the person is wholly and severally liable, without any defence. 

The Supreme Court in Hussainara Khatoon v. State of Bihar which pertained to the inhumane and barbaric conditions that under trial prisoners were facing, laid declared that the right to speedy trial is a fundamental right. In this case the Supreme Court treated a letter as a writ petition as was treated in Sunil Batra v. Delhi Administration. The Supreme Court also laid down that people who are indigent and extremely poor who cannot afford the legal expenses, the Court or he Legal services Commission shall provide them with a suitable advocate who shall appear for them pro bono.

In K.S Puttaswamy v. Union of India, the Supreme Court declared that the Right to Privacy is a Fundamental Right under Article 21. The case was filed against the enrolment process which required submission of their biometrics. It was argued that such information is an act of intrusion in the personal domain of an individual. The Supreme Court made it optional for individuals to submit their biometric details rather than making it mandatory.

In this case as well, the judiciary was playing an active role in laying down fundamental principles of justice in place in a situation where there used to be no legislation in the said matter.

Thus it is evident from the above mentioned cases that the role of the judiciary is not only limited to interpretation of statues, but also in some cases, make new rules in order to preserve democratic values and justice. Cases such as these are landmark in nature and make us repose faith in the judicial system of our country and such judgments are necessary for upholding the Rule of Law as is the fundamental principle of our Constitution.

Sexual Harassment of Women at Workplace 

Definition

Sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as: (section 354A)

1. Physical contact and advances
2. A demand or request for sexual favours
3. Sexually coloured remarks
4. Showing pornography
5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature

If any of these acts is committed in circumstances wherein the victim of such conduct is under such apprehension that objection to such conduct could harm the victim’s employment or work where she is drawing salary or any other benefits, then it amounts to Sexual Harassment at Workplace.

Incidents of Sexual Harassment of Women at their Workplace result in violation of their fundamental right of life and liberty, as they are not being given amicable working conditions. Even after Supreme Court’s landmark decision in Vishaka v. State of Rajasthan, there have been incidents of sexual harassment. In 2019, there were 85885 cases of sexual harassment (Sec 354A of IPC) in India.

Provisions

In Vishaka v. State of Rajasthan, the Supreme Court has laid down various guidelines as to how the working conditions have to be set so that women working in that workspace feel safe and protected. 

Some of the guidelines are as follows:

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.
2. Prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
3. Appropriate work conditions must be provided for work, leisure, health and hygiene so that there is no hostile environment towards women at their work places.

Complaint Mechanism and Criminal Proceedings 

The judgment of the Supreme Court in Vishaka v. State of Rajasthan also includes criminal proceedings which states that the employer must initiate actions in accordance with law before the appropriate authority if such actions violate provisions of the Indian Penal Code. 

The judgment also laid down specific rules for setting up of a Complain Mechanism within the organization which shall be headed by a woman and shall be impartial in dealing with matters in relation to sexual harassment of women.

Thus, in absence of legislations regarding sexual harassment of women at their workplace, the judiciary gave this landmark judgment in 1997 which led to a paradigm shift in the working conditions of women. In this, the judiciary’s active led to the safeguard of women’s right and also their empowerment.

Jurisprudence of Judicial Legislations

Sociological Jurisprudence

American Jurist Roscoe Pound coined the term Sociological Jurisprudence so that he could describe his approach to understand law. Sociological jurisprudence lays stress on social effects of legal institutions, doctrines and practices. It determines the impact of law within the society and the influence of society on various aspects of law.

The jurists of Sociological School believe that judges should consider the public interests and social facts while interpreting the Constitution because such opinions represents the evolving social norms of the community. Roscoe Pound’s theories lay stress on “the Life of the law is in its enforcement”.

The Sociological Jurisprudence encourages judicial activism in common law cases. Roscoe Pound believed that jurisprudence in common law cases could only be achieved by courts if they devise legal principles and doctrines which balance the various social interests. 

Benjamin Cardozo, one of the most prominent proponent of Sociological jurisprudence believed that in decision making, a judge can face a situation wherein for larger good of justice and equality, as per his theory, he has to sacrifice custom or ignore history.

Another jurist Grey was of the opinion “law is what the judges declare, statutes, precedents, opinions of learned experts, custom and morality are sources of law.” He believed law is never made by judges, however, customs, no matter how firmly established, are not law until adopted by the courts. For statutes, they become law only when the courts fix up their meanings.

Jethoro Brown opined in his paper “Law and its Evolution”, that a statute is not a real law until it is construed by the Courts. Real law is always found in the judgments of the Courts. 

The Supreme Court of India, in its judgment Ashok Kumar Gupta v. State of UP and ors 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 ideas set down in Preamble of the Constitution aided by Part III and Part IV. 

Thus it is evident from the above mentioned information, that the courts not only have Constitutional and legal responsibilities, but also have to safeguard democratic societal principles. It also has to determine the growth of the society by taking into account the prevailing circumstances and social conduct. The courts play a proactive role in bringing a paradigm social change, standing for the rights and dignity of citizens and should not be treated as an infringement on the domain of the legislature.

Realistic School of Jurisprudence

This school of jurisprudence mainly focuses on what the courts pronounce. Jurists of this school believe that actual law is what is decided by the courts. They believe that law cannot be static and is based on certain facts which vary from case to case. There is an inherent thought that since the society is always changing; laws that prevail within the society must also change with time.

Jerome Frank has opined that law is what the courts have decided based on certain predetermined facts of a particular case and the opinions of lawyers cannot be treated as law but are mere presumptions as to what the courts shall say.

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”.

Jerome Frank in his classic work “Law and the modern mind” said that law is uncertain and certainty of law is a myth. He also opined that judges do not make law, they discover it. A Judge, while interpreting statues, reads between the lines and while analyzing its essence, forms judgments.

In this regard, he has laid down the Father’s Symbol theory. Just as a child puts all the faith and trust in his father to make him feel secure and protected, Jerome said, that if one is to say that law is certain, he/she is finding the same sense of security as what a child seeks from his father.

Thus it is sufficiently clear that according to the realist school, law is what the judges say. And in this regard, if arguments are said that judicial legislations are a way for the judiciary to usurp legislative power, then that doesn’t hold true. 

The Courts, while interpreting statues and the Constitution, can unquestionably discover new aspects to it and this can’t be termed as making laws or legislating.

Conclusion

The Courts intervention in matters pertaining to sexual harassment of women tells us a new picture. It tells us that Courts have duly understood their role in societal change and have effectively exercised its powers for the larger welfare. 

In absence of laws in relation to sexual harassment of women at their workplace, the Supreme Court was bound to lay guidelines for their protection and restoring their fundamental rights of life and liberty. (Article 21)

The Supreme Court has undoubtedly taken a bold step in protecting women’s right by making rules for an issue which was not given due attention until 1997, after decades of independence. 

There have been various scholars of jurisprudence who, in their theories, have said that judges do, while interpreting statues, offer various other interpretations. These are acceptable so far as they are in the larger benefit of the society and the people.

Thus, there isn’t a doubt, that in a society where separation of power prevails, sovereignty must be maintained. But in order to protect the essence of the Constitution and to uphold the Rule of Law, the judiciary can intervene, and make rules and pass orders.

Bibliography

1. Ashok Kumar Gupta v. State of U.P. [1997] 5 SCC 201
2. Hussainara Khatoon & Ors v. Home Secretary, State Of Bihar [1979] AIR 1369, 1979 SCR (3) 532
3. K.S. Puttaswamy v. Union of India [2018] 4 SCC 651
4. M.C. Mehta & Anr.Etc v. Union of India & Ors. AIR 1987 SCR [1] 312
5. S.P. Gupta vs President Of India And Ors. AIR 1982 SC 149.
6. Special Reference No. 1 of 1998, Re [1998] 7 SCC 739
7. Sunil Batra vs Delhi Administration AIR 1980 SCR [2] 557
8. Supreme Court Advocates-on-Record Assn. &Anr. v. Union of India [1993] 4 SCC 441
9. Vishaka v. State of Rajasthan [1997] 6 SCC 241

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