India has adopted the concept of "Doctrine of Separation of powers" given by Montesquieu. It defines the separate functions for all the three branches of government i.e., Legislature, Executive and Judiciary. But, today most of the constitutional systems do not have a strict separation of powers between the various organs because it is impractical. Power to make laws is with the legislature but it is quite impossible for the legislature to make laws with the changing needs of modern society. So, in order to fill lacuna of legislature, judiciary must step in and overcome the inefficiency of the legislature.

Synopsis and issues raised in all three cases:

Vishaka & Ors vs. State of Rajasthan & Ors. (AIR 1997 SC 3011):

Synopsis:
The present writ petition was filed for the enforcement of the fundamental rights of working women. It was brought before the Supreme Court by certain social activist and NGOs (Vishaka) in order to focus the attention towards the growing number of incidents of sexual harassment against working women. It also aimed preventing sexual harassment of women at work place through judicial process i.e., by laying down some guidelines, for realising the true concept of gender equality. The immediate cause of filing this petition was the gang rape of social worker, Bhanwari Devi in the village of Rajasthan, as she tried to prevent a child marriage of infant girl child.

Issues: Following were the issues arose before the full bench of the Supreme court:

1. Whether sexual harassment at workplace amounts to violation of fundamental rights?
2. Whether the courts are entitled to use the international laws in absence of any specific gender rights and gender equality law?
3. Whether the employer has any responsibility for the sexual harassment faced by its employees at the workplace?
4. Whether the enactment of guidelines is mandatory for dealing with sexual harassment of women at workplace?

D.K. Basu Vs. State of West Bengal (AIR 1997 SC 610):

Synopsis: DK Basu, the Executive Chairman of Legal Aid Services wrote a letter to Chief Justice of India calling his attention towards certain newspaper article regarding custodial

deaths or deaths in police custody/lockups and various forms of custodial torture, barbarous, cruel, inhuman treatment of prisoner. Supreme Court based on his letter took cognizance and issued notice to state of West Bengal but government of West Bengal made counter argument by saying that petition is misleading and baseless and no such event has taken place. Later, another letter wrote by Ashok Kumar Johri drawing the attention toward the custodial death of Mahesh Bihari of Aligarh in police custody. Both the letters were treated as writ petition and heard along with.

Issues: Following were the issues arose before the divisional bench of the Supreme court:

1. Whether custodial death and various form of custodial torture amounts to violation of fundamental rights?
2. Whether compensation should be awarded to the victims of custodial torture.
3. Whether there was a need for framing guidelines, while making arrest of an individual.

M.C Mehta & another Vs. Union of India & others (AIR 1987 SC 965):

Synopsis: A writ petition was filed by M.C Mehta for closure of Shriram food and fertilizer company engaged in the manufacturing of hazardous substance located in densely populated area of Kirti Nagar. While the petition was pending there was a leakage from one of the units of Shriram which affected not only its employees but also resulted in death of an advocate practicing in Tis Hazari court. And many other people died in this tragedy. As this incident took place only after one year of Bhopal Gas tragedy it draws huge attention of the court.

Issues: Following were the issues arose before the full bench of the Supreme court:

1. Whether such hazardous industries to be allowed to operate in residential areas?
2. If they are allowed to work in such areas, whether any regulating mechanism be evolved?
3. How to determine liability of such industries and amount of compensation?

Similarities between all three case laws are as follows:

1. Ubi Jus Ibi Remedium

   "Jus" means the legal right and "Remedium" means the right to action in a court of law, i.e., right to sue. It means when there is a legal right, there is a corresponding legal remedy provided for its breach or we can say there is no legal wrong without a remedy.
   
   The principle underlying this maxim was explained in Ashby V. White.
   
   "If a man has a right, he must have a means to maintain it, and a remedy if he is injured in the exercise and enjoyment of it, and we cannot imagine a right without a remedy, rights and remedy are reciprocal in nature.
   
   In all the above stated cases, court observed there were no laws regulating respective issues but understood there has a legal injury to the person for which he has a right and therefore came up with a remedy to the aggrieved party.
   
   In Vishaka case, the court observed that fundamental rights of working women violated by way of sexual harassment, but there was no remedy provided by the Legislature to deal with this. Then the court frames guidelines to prevent sexual harassment of working women.
   
   In DK Basu case, the court observed that fundamental rights of arrestee violated by way of custodial torture, which result in death and there was no provision for payment of compensation provided in the Constitution. Then the court evolved a right to claim compensation in such cases.
   
   In MC Mehta case, the court observed that fundamental rights to live in clean and healthy environment is violated by such large industries dealings with dangerous substances. Then the court formulated 11 conditions which must be followed by every industry engaged in production of hazardous and harmful substances.
    

2. Judicial Activism

   Lord Hewart, CJ, who is famous for saying, "It is Fundamentally important that justice not only be done but also be clearly seen to be done," gave rise to the concept of judicial activism. It means when legislation or executive fails to perform their duties of making the law and executes the law respectively, then the third organ i.e., judiciary does not act as a mute spectator. The judge crosses their boundary and makes the law in the form of guidelines.
   
   The foundation of Judicial Activism in India was laid down by Justice V.R Krishna Iyer, Justice P.N Bhagwati.
   
   In all the three cases Supreme Court came up with certain guidelines and there was no law governing the respective issue but the principle role of judiciary is to protect the rule of law and ensure supremacy of law.
   
   In Vishaka case, the Supreme court frames guidelines to prevent sexual harassment of working women. It is commonly known as Vishaka guidelines which are 1st enforceable civil law guidelines.
   
   In DK Basu case, Supreme Court laid down guidelines which must be followed by every concerned officer while making arrest and detention. The failure of which will result in contempt of court. The court also makes provisions for granting compensation to victims of custodial torture.
   
   In MC Mehta case, the Supreme court developed the principle of "Absolute liability." This was done to end any escape route for hazardous industries for compensating the victims. The court set aside the judgement of Rayland V. Fletcher. (Winfield theory of Law of Tort)
    

3. Violation of Article 21

   According to Article 21 of the Constitution,
   
   "Protection of Life and Personal Liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law." This fundamental right is available to every person, citizens, and foreigners alike.
   
   The right to life is not just about the right to survive. The Supreme Court gave a new dimension to Art. 21 and expanded the scope of it. The Court held that the right to live is not merely a physical right but includes within its ambit the right to live with human dignity. The right to life includes right in live in clean and healthy environment. (Maneka Gandhi v. Union of India). The chief goal of Article 21 is that when the right to life or liberty of a person is taken away by the State, it should only be according to the prescribed procedure of law. In 2017, Supreme court held that right to privacy is a part of Article 21 of the Constitution. (K.S. Puttaswamy and Anr. Vs Union of India & Ors.)
   
   In all the three cases there is violation of fundamental right of Article 21 of the constitution of India.
   
   In Vishaka case, sexual harassment is an unlawful invasion on the Right to Privacy of a working women, also Right to life of working women includes right to live with human dignity.
   
   In DK Basu case, the court observed life or personal liberty includes the right to live with human dignity and thus it would also includes within itself, a guarantee against torture and Assault by the state.
   
   In MC Mehta case, the court observed the Right to life under Article 21 has been interpreted to includes right in live in clean and healthy environment.
    

4. Public Interest Litigation

   The term PIL has not been defined in any Indian Statute. However, Courts have interpreted and defined PIL. The Hon'ble Supreme Court of India has, in the case of Janata Dal v. H.S. Chaudhary, (AIR 1993 SC 892), held that the expression "PIL" means a legal action started in a court of law for the enforcement of public/general interest, where the public or a particular class of the public having some interest (including pecuniary interest) that affects their legal rights or liabilities.
   
   Any individual or organization can file a PIL either in his/her/their own standing i.e., to protect or enforce a right owed to him/her/them by the government or on behalf of a section of society who is disadvantaged or oppressed and is not able to enforce their own rights.
   
   In case of PIL, Suo moto cognizance may also be taken by the Court.
   
   In all three cases, PIL was filed, as it involves a matter of public Importance. Whether it was a sexual harassment case of working women or a custodial death/ torture in police custody or escape of dangerous substances from the large enterprise.
    

5. Remedy under Article 32

   Article 32 of the Indian Constitution gives the right to individuals to move to the Supreme Court to seek justice when they feel that their fundamental right has been deprived.
   
   Dr. B.R. Ambedkar stated that, Article 32 as "Heart and Soul of Indian Constitution".
   
   Article 32 as a constitutional remedy has been invoked, as there was violation of fundamental rights in all the three cases and hence Writ petition was filed before the Supreme Court.
   
   In Vishaka case, violation of fundamental rights of the working women under Article 14, 15, 19, 21 under Constitution of India.
   
   In DK Basu case, violation of fundamental rights of arrestee under Article 21 and 22 under Constitution of India.
   
   In MC Mehta case, violation of fundamental rights of general public under Article 21 under Constitution of India.
    

6. Importance of Legal Awareness

   In all the three cases Supreme Court made to the importance of legal awareness. Guidelines in all the three cases has made necessary to make people know their legal rights.
   
   In Vishaka case, the court made necessary that awareness should be created in relation to rights of female employees against sexual harassment at work place.
   
   In DK Basu case, the court made necessary that the arrested person must be made aware of his right to have someone informed of his arrest or detention.
   
   In MC Mehta case, the court made necessary that every worker, working in a industry dealing with dangerous substance, should be educated, 4and informed as to what precautions should be taken in case of leakage of dangerous things.

Differences between all three case laws are as follows:

1. Amicus Curiae/ Committees

   The term Amicus curiae, in Latin, means "a friend of the court. Such a person is not a party to the proceeding or suit but since he is a friend of the court, his/her sole function is to advise or assist the court on its request.
   
   In State v. Finley, it was observed that "An amicus curiae is one who gives information to the court on some matter of law in respect of which the court is doubtful." Thus, the function of such a person is only to make useful suggestions to the court.
   
   In Vishaka case and DK Basu case, Supreme Court appointed Amicus Curiae to assist them in framing guidelines. Whereas in MC Mehta case, various committee were appointed which recommended the court for imposing conditions on large enterprise dealing with dangerous substances.
   
   Meenakshi Arora, Naina Kapor, Fali S. Nariman appeared as Amicus Curiae in Vishaka case, whereas A.M. Singhvi appeared as Amicus Curiae in DK Basu case.
   
   In MC Mehta case, the Manmohan Singh Committee, Nilay Choudhary Committee appointed.
    

2. Subject matter of the case

   The Supreme court has dealt with differently in all three cases because their subject matter is different. The view on the judgements are as follows:
   
   In Vishaka case: In the absence of domestic law regarding protection of women from sexual harassment at the workplace, the Court formulated the guidelines and norms to be observed at all the workplaces whether it is public or private, until the enactment of legislation under Article 32 for the enforcement of the Fundamental Rights of the working women. This case concern with importance of Gender Equality.
   
   In DK Basu case: This case concerns with custodial death or death in police custody and various forms of custodial torture and cruel, barbarous, inhuman treatment given to arrested person. The court observed that police is under a duty to arrest a criminal and interrogate him; but the law does not allow the use of third-degree method to torture the accused while in police custody with a view to solve the crime.
   
   In MC Mehta case: This case concerns with liability of owner in extremely and inherently hazardous plant, wherein apex court came up with new concept of Absolute liability.
    

3. Medical examination

   In DK Basu case and MC Mehta case, it deals with the provision of medical examination or medical checkup. Whereas in Vishaka case, there were no such provision could be seen in the guidelines.
   
   In DK Basu case, the court made provision that the arrestee should be subject to medical examination in every 48 hours during his detention in custody by a doctor.
   
   In MC Mehta case, the court made provision that regular medical check-up of the workers, who are working in chemical plant, should be arranged by the management of enterprise in order to ensure that the workers are in good health.
    

4. Provision for compensation

   In DK Basu case and MC Mehta case, it deals with the provision for payment of compensation. Whereas in Vishaka case, there were no such provision could be seen in the guidelines.
   
   In DK Basu case, the court made provision for granting compensation to the victims of custodial torture. As giving punishment to the wrongdoer cannot give justice to the victim or his family member. They file a civil suit for claiming damages, would also be a long judicial process. Therefore, monetary compensation would be a useful, appropriate, effective, and suitable remedy.
   
   In MC Mehta case, the court made provision for payment of compensation to the victims.

Other specific provisions:
DK Basu case is the exception of the legal maxim "Rex Non-Protest Peccare". It means the king can do no wrong. But in this case, the State is vicarious liable for the act of its public servant. So, the defense of sovereign immunity is not available to the State.

Award Winning Article Is Written By: Mr.Milan Asati

Authentication No: JL354921354207-2-0723