This Blog is written By Miss. Garvita Mehrotra Student of Vivekananda Institute of Professional Studies, IP University.
Introduction
Just
as a bird cannot fly with one wing, a nation cannot soar to new heights if the
women and children are left behind. It is the primary duty of any nation and
entire humanity to ensure the betterment of its women and children in order to
attain socio-economic justice. For any nation, the children are considered as
an asset since they are the future citizens of this country. If they are not
protected from the inhuman, brutal and degrading acts, then the future of the entire nation is in jeopardy. Not only it leaves them traumatized for the rest
of their lives but also throws light on the ineffectiveness of the laws and
absence of a well-established administrative system in order to effectively
curb and deter such heinous crimes.
The
Constitution promotes the equality of women and the welfare of the children.
Consequently, it empowers the State to adopt measures for the welfare of the
women and children.
The Grim reality is that they are the most vulnerable section of the society
which is evident by the recent statistics of rape, child abuse, sexual
harassment, child marriages, and female foeticide
Evolution
of Concept of PIL in India
According
to Justice Krishna Iyer, “The judicial
activism gets its highest bonus when its orders wipe some tears from some
eyes”.
After the 42nd amendment of the
constitution, Article 39A was one of the Directive Principles of state policy
which was inserted in the constitution directing the States to ensure that the
citizens of India have an equal justice on a basis of equal opportunity, and opportunities for
securing justice are not denied to any citizen by the reason of economic or
other disabilities. It may not be feasible for the majority of
the members of the aggrieved class to approach the courts to seek redressal of
their grievances in case of violation of their fundamental rights pertaining to
the lack of awareness or insufficiency of means. Therefore, the PIL has
undeniably emerged as an instrument of utmost importance by enabling such
underprivileged people to seek justice.
What is PIL
PIL
is brought before the court to protect the public interest and not for
enforcing the right of one individual against another. PIL endeavors that
violations of constitutional or legal rights of a large number of people who are
indigent, ignorant or in a socially or economically disadvantaged position
should not go unnoticed and un-redressed
It is a social instrument that endeavors to uphold
the principle of Rule of Law by striking a balance between law and justice. In
simpler terms, it means litigation filed in the court of law, for the
“protection of public interest”.
Who may file a PIL
Any
public-spirited person, who may not be directly aggrieved can still bring
action to the court on behalf of those who are aggrieved provided that, the PIL
is on bonafide grounds and in the greater public interest.
Liberalization of the Concept of Locus Standi
Previously, it was necessary that the complainant shall have
a standing in the matter i.e a sufficient connection with the injury, in order
to bring an action. The general rule that only the individual whose fundamental
right has been violated has the right to move to court has been relaxed over
time due to the growing demands to protect the weaker and the vulnerable
sections of the society. The principle of rule of law ensures justice for all
and not just for a fortunate few. Thus, liberalizing the concept of locus
standi becomes inevitable.
Justice
P. N. Bhagwati articulated the concept of PIL as follows, “Where a legal wrong
or a legal injury is caused to a person or to a determinate class of persons by
reason of a violation of any constitutional or legal right, any member of the public
can maintain an application for an appropriate direction by the means of writ
in the High Court under Article 226 or under Article 32 seeking judicial
redress for the legal wrong or legal injury caused to such person or
determinate class of persons.”
The law has made a departure from the traditional rule and
now has widened its horizons to allow any public-spirited person to file a writ petition for the
enforcement of constitutional and statutory rights of any other person or
class, if they are unable to invoke the jurisdiction of the Court and defend
themselves due to poverty or any other disability.
Important
PIL judgments concerning Women and Children
The judiciary has made a significant attempt to assume the role of a social reformer
by upholding the rights of women and children. In order to ensure economic,
social and cultural transformation, the judiciary intends to play a vibrant,
dynamic, creative, and proactive role. The role of the existing judicial system
can be further interpreted from the following progressive decisions rendered
over the decades-
1. Vishaka
and others vs. the State of Rajasthan, The
Supreme Court held that sexual harassment of working women at her place of
employment amounts to a violation of rights of gender equality and right to life
and liberty as guaranteed in Articles 14, 15 and 21 of the Indian Constitution.
2. Indian
Young Lawyers Association v. State of Kerala-A
PIL was filed in 2006 questioning the ban on entry of menstruating women in
Sabrimala Temple. The Supreme Court
permitted entry of women of all age groups to the Sabarimala temple and held
that ‘devotion cannot be subjected to gender discrimination’. The fundamental
right of women to worship was protected.
3. Joseph Shine vs. Union
of India- Under the
adultery law, the woman was viewed as a chattel or property of her husband. She
had no say in the matter. The women had no independent personality of her own
and were viewed as an object or sexually submissive. S.497 offered no relief to
the women to bring action against her husband who cheated on her and it was a
clear violation of Art 14. The decriminalization made it
clear that a woman has the right to bodily integrity, individual choice, and
personal autonomy not just against the State, but also within the context of
the home and the family.
4. Laxmi Vs. Union of India- This PIL was initiated by acid attack survivor Laxmi Aggarwal
wherein the Supreme court gave measures for the proper treatment and aftercare
of the victims of acid attacks and the compensation payable to the acid attack
victims by the states by the creation of the separate funds.
5. Devika Biswas Vs. Union of India- A PIL was filed in order to recognize sterilization, not as a mere measure of population control but safeguarding the women’s
reproductive rights. The Hon’ble Supreme The court recognized deaths, failures, complications, and coercion as a result of
female sterilization have implications for women’s rights to life. The court
provided for uniform sterilization methods.
6. The Chairman, Railway Board & Ors vs
Mrs. Chandrima Das & Ors-Rape
was recognized as a crime against basic human rights. It is violative of the
victims most cherished right, namely, right to life which is interpreted to
include the right to live with human dignity contained in Article 21
7. Supreme court verdict on Permanent Commission to
women officers in Army- A PIL was filed in 2003. The court observed that
excluding women from command appointments and allowing them only staff
appointments was against Art 14. Thus similar to the male counterparts, women
officers can also be appointed to Permanent Commission in Army
8. R.D. Upadhyay vs State Of A.P.- The
court held that such children who are with their mothers in jail are not
entitled to be treated as under trial or convict while in jail. Also, they are
entitled to food, shelter, medical care, clothing, education, and recreational facilities
as a matter of right.
9. Gaurav Jain v. Union of India- The Supreme Court held that the children of the prostitutes
have the right to equality of opportunity, dignity, care, protection, and
rehabilitation so as to be part of the mainstream of social life without any
pre-stigma attached on them. They should not be permitted to live in an inferno of
brothels
10. Independent
Thought vs. Union of India–
This case dealt with the plight of the Minor wives within the age group of
15-18 years. The Criminal Amendment Act of 2013 changed the definition of S.375
IPC and raised the age of consent to 18 years. It didn’t delete Exception 2 to S.375 permitting sexual
intercourse between a man and his wife age 15-18, even if the wife does not
consent and exempts it from rape. The court held that the Exception 2 shall be
taken down as it is inconsistent with Article 14,15,21 of the Constitution and
with the provisions of POCSO, which must prevail.
Conclusion
PIL has now acquired an unprecedented legitimacy as a
non-adversarial, informal justice weapon to combat social oppression and to
ensure the protection of the human rights of both women and children. The women and
children, being the most vulnerable sections of the society, have to be
protected. It will be a predicament and an encumbrance to the progress of the
Indian society in case its women and children are exploited.
Editorial, “ Women should be allowed permanent commission in Indian Army, rules
Supreme Court, Hindustan Times,
Feb 17,2020
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