bUe and Abuse of the Indian ConstitutionnD - Zeitschrift für ...

Use and Abuse of the Indian- Constitution 825if anyone of them is not complied with, the detenu is released.112 Though unintended,this strict approach, enunciated in the name of protection of the dignity ofthe individual, has helped criminals, especially economic offenders, to go scot-freeon account of non-observance of procedural technicalitiesor minor lacunae inpresentation of materials. It is common knowledge that Government officialsdealing with detention are not well-versed in the ever-growing jurisprudence ofthe -judiciary in this regard and lawyers engaged by detenus take advantage ofsome lapse or the other in the making of the detention order; the detaining authorityis not given an opportunity to cure the defect. The jurisprudence of the judiciaryshould be such that it helps the State in dealing with criminal elements effectivelyand not to base judgment in criminal cases solely on procedural technicalities.The Constitution (Forty-fourth Amendment) Act, 1978,113 amended article 359to make it clear that, even where a Proclamation of Emergency is in operation, theenforcement of articles 21 and 22 cannot be suspended, a positive developmentthat places human dignity above anything else and constitutes an im portant mi'le-stone in the constitutional history of India.(iii) Impact of international conventionsAttention may also be drawn to another facet of the Court'sjurisprudence inrespect of the fundamental rights developed in PIL petitions. Visakha case114 involveda petition seeking suitable directions to prevent sexual harassment of workingwomen in all work places through judicial process. The Court found that sexualharassment violates the victim's fundamental right under article 19(l)(g) of theConstitution "to practice any profession or to carry out any occupation, trade orbusiness" and this right depends on the availability of a "safe" environment, thatsuch harassment results in violation of the fundamental right of "gender equality"and the right to live with dignity as are assured by articles 14, 15 and 21 of theConstitution, that the primary responsibility for ensuring such safety and dignitythrough suitable legislation, and the creation of a mechanism for its enforcement,is of the Legislature and the Executive, and that an effective redressal requires thatsome guidelines should be laid down for the protection of these rights to fill thelegislative vacuum. The Court then laid down certain guidelines and norms fordue observance at all work places in public as well as private sectors, until a legislationis enacted for the purpose. It said that these guidelines would be bindingand enforceable in law.112 See also Ram Krishna v. State of Delhi, AIR 1953 SC 318; Dwarika v. State of Bihar, AIR 1975SC 134; Bhupal v. Arif, AIR 1974 SC 255. For a general account of safeguards see B a s u'sCommentaryon the Constitution of -India, voll, 7th ed., 196 214.113This Act was enacted to overcome the decision of the Supreme Court in A.D.M. Jabalpur v.S. Shukla, AIR 1976 SC 1207.114Visakba v. State of Rajasthan (note 89).http://www.zaoerv.de© 1998, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht