The Supreme Court of India has said that public interest litigation (PIL) is an effective tool for protecting the rights of the disadvantaged, especially women. However, is this really the case? This Law, Social Justice and Global Development article looks at the issues surrounding the practice of PIL in India and its impact on women’s rights, especially in the areas of rape, sexual harassment and prostitution.
Women in India have been historically disadvantaged in a number of ways and often do not have access to the justice system when their rights are violated. India has pioneered PIL as a means of addressing this problem. PIL works in the following way: either the Supreme Court or the High Court allows volunteer lawyers or citizen petitioners to bring a case on behalf of a victimised group that does not have sufficient means or access to legal services. However, there must be a constitutional violation before the Courts will take on a case. This has allowed individuals not personally involved in cases to bring suits on behalf of others.
India has used legislative and judicial systems to advance legal innovations that espouse human rights — especially women’s rights — and social justice. The Supreme Court decisions have been influential in promoting an awareness of woman’s issues and creating policy and organisations devoted to development initiatives. Key findings are that:
- There are few fundamental rights specifically relating to gender in the Indian Constitution and the Supreme Court has interpreted other rights liberally, in terms of gender, to get around this limitation.
- PIL does give effective access to the Court and a public voice to individuals without the education or economic means to use the legal system.
- The Court has done much to eliminate legal forms of discrimination against women.
- The Court’s efforts have led to greater awareness of certain women’s issues. Media coverage of decisions is widespread and the Court is performing the function of keeping the issues alive.
- However, the Courts are limited in their abilities to promote and bring about social change. Decisions often hold symbolic value and change will happen after a long period of time.
- Another weakness is the implementation of its judgements. The Court faces a lack of cooperation from the police and other agencies.
Access to the High Court is crucial. Women need to get their cases heard in the higher courts as the lower courts are more corrupt and tend to take on beliefs that dominate the local cultures, which usually disadvantage women. There should also be limiting criteria for PIL, as is the case in India, so that court processes are not abused. Suggested limitations are that:
- The court petitioner must be acting in a bona fide manner and not for personal gain, profit, political motivation or any other ulterior motive.
- The judiciary must be careful not to overstep its bounds into the executive or legislative branches of government.
- The rights of petitioners should be subordinate to the interests of beneficiaries.
