Gender Justice through Public Interest Litigation: Case Studies from India

By Sood, Avani Mehta | Vanderbilt Journal of Transnational Law, May 2008 | Go to article overview

Gender Justice through Public Interest Litigation: Case Studies from India


Sood, Avani Mehta, Vanderbilt Journal of Transnational Law


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. …

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