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6 views3 pages

Assignement

Uploaded by

aarushgadamayak
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© © All Rights Reserved
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AARUSH GADANAYAK

LEGAL METHOD ASSIGNMENT


240231004045

In the case of Vishaka v. State of Rajasthan, the Supreme Court cited


different sources of law that t well within Salmond's classi cation of
the sources of law. Here are the main sources:

1. Legislation (Statute Law)

•Constitution of India: Here, the court resorted to the enactment under


Articles 14 (Right to Equality), 15 (Prohibition of Discrimination),
19(1)(g) (Right to Practice any Profession), and 21 (Right to Life with
Dignity). The are enactments that automatically nd a direct position
in the Constitution-thus, statutory laws.

Indian Penal Code: Even the IPC is a source of criminal action, if


needed, which too is a statutory law.
Why is it a source of law?

•Statutory laws are written laws enacted through a formal legislative


process. The Constitution is the supreme law, and other laws derive
their force from it.

2. Precedent (Case Law)

Vishaka Guidelines, as decided by the court in this case, has become a


source of law for preventing sexual harassment at the place of work
until legislation is brought forward.

• It also referred to previous judgments like Nilabati Behera v. State


of Orissa, where the judiciary recognized enforceable rights to
compensation under public law for violation of fundamental rights.

Why is this a source of law?

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• Judicial precedents are the strongest source of law in terms of the
force of binding interpretations of statutes and constitutional
provisions. The judgments of superior courts create case law that the
subordinate courts must apply.

3. Custom

• The court didn't say it at all, but it hinted to bring a change into
customary practices and behavior of societies toward women in the
workplace since guidelines to redress a customary disregard for
dignity for women.

Why is this a source of law?

• Customary practice could be a source of law, especially when the


practice stays long in duration with consent from the society. Though,
this falls only within part de nition of customs. The court in that case
looked to reform workplace customs to t within constitutionalism.

4. International Law

•International Conventions: The court referred to the international


conventions such as Convention on Elimination of All Forms of
Discrimination against Women or CEDAW. It had quoted Article 11
and general recommendations of CEDAW calling for measures to
ensure the safety of employment and to prevent sexual harassment.

The bench quoted Article 51(c) of the Constitution, urging respect


towards international law and Article 253 that made provision for
Parliament to implement international treaties.

Why is this a source of law?

• It becomes a source when it is in concurrence with the basic rights


provided for in the Constitution. International obligations inform the
interpretation of domestic law where there is legislative vacuum.

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5. Customary Practices

• Judgment underlines the importance of customary practices that


have resulted in gender discrimination and the need to change these
through the guidelines, which also rely on international customary
norms against workplace harassment.

Why is this a source of law?

• In the case where the custom is very entrenched in the societal


practices, it will do so indirectly in in uencing the formulation of the
legal standards and reforms.

This way, the court was able to bring forth a judgment that not only
protected the rights of women but lled legislative gap by exercising
its judicial authority under Article 32 of the Constitution with the help
of these sources.

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