#We Too

The #MeToo movement is a social movement against sexual abuse and sexual harassment where people publicise allegations of sex crimes. The phrase #MeToo was initially used, in 2006, by sexual harassment survivor and activist Tarana Burke, on Myspace, the largest social networking site in the world at that time.

It is a social justice and empowerment movements based upon breaking silence. The purpose of "Me Too", as initially voiced by Burke as well as those who later adopted the tactic, is to empower sexually assaulted individuals through empathy and solidarity through strength in numbers, especially young and vulnerable men and women, by visibly demonstrating how many have survived sexual assault and harassment, especially in the workplace.

Following the exposure of the widespread sexual-abuse allegations against Hollywood's film producer, Harvey Weinstein in early October 2017, the movement began to spread virally as a hashtag on social media. Only then was the matter taken up by the judiciary and Weistein was sentenced to 23 years in prison for rape and sexual assault on 11th March 2020.

On October 15, 2017, American actress Alyssa Milano posted on Twitter, "If all the women who have been sexually harassed or assaulted wrote 'Me too' as a status, we might give people a sense of the magnitude of the problem". A number of high-profile posts and responses from American celebrities Gwyneth Paltrow, Ashley Judd, Jennifer Lawrence, and Uma Thurman, among others, soon followed.

Widespread media coverage and discussion of sexual harassment, particularly in Hollywood, led to high-profile firings, as well as criticism and backlash.

After millions of people started using the phrase and hashtag in this manner in English, the expression began to spread to dozens of other languages. The scope has become somewhat broader with this expansion, however, and Burke has more recently referred to it as an international movement for justice for marginalised people in marginalised communities.

What the #MeToo movement has revealed is that while every country boasts of a strong judiciary, they have hardly proved to be a deterrent to the perpetrators of sexual abuse, assault or harassment. Very few survivors approach the court to seek justice in such cases. Weinstein would not have been sentenced to prison if the survivors had not got empowered through empathy, solidarity and strength in numbers under the #MeToo movement.

After the success of the #MeToo movement, a social justice and empowerment movements based upon breaking silence, we believe it is time to launch a more general comprehensive #WeToo movement to empower individuals and corporates, alike, to break silence and speak up against the misuse of judicial power.

Just as #MeToo empowered sexually assaulted individuals through empathy, solidarity and strength in numbers, the #WeToo movement will likewise, bring together vulnerable individuals and organisations who are languishing for justice. Since the very institution, a court, that is meant to deliver justice, has failed, we believe that an international movement for justice to the people at large can trigger a the desired revolution in developing countries such as India.

Today, the corrupt judiciary has taken the shape of an evil giant monster. It is currently an impediment to the economic and social progress of the nation. Through empathy, solidarity and strength in numbers, we believe that an international movement, so large can be created, that it would have the strength and capability to squash a corrupt judiciary and clean the judicial process. Only then can we be successful in preserving the principles of a democratic, peaceful and free society.

Power, when exercised, has the ability to change the legal position and imply liabilities on others. Power is either structured or unstructured. For the law to serve as an instrument of social transformation, the power has to be structured, defining the lines along which it is permitted to flow.

A purpose-driven arrangement of power (structure), defined in a Constitution, indicates both permissions and prohibitions for a valid exercise of power. It gives the correlation between power wielder and power 'yielder'. The Constitution thus becomes a fundamental law of superior obligation indicating the constitutionally granted use of power as well as the purposes for which it can be validly exercised.

A controlling Constitution, like the Indian Constitution, has provisions which specifically indicate denials, directions, divisions, permissions, or prohibitions for the exercise of structured power. The constitutional matrix of power would regulate the legislature, the executive and the judiciary.

As per Aristotle there is six-fold classification of politeia among which democracy is the corrupt form of government because power is exercised to promote only the interests of the power- holders. Its nobler version what he referred Polity or Constitutional a government is a political system where power lays down certain propositions as basic for the governance of the people subjected to it and owing allegiance to it.

Judicial behaviour has been receiving attention, especially since 1998 when it was observed by one of the retired judges of the Superior Court that, “everything was rotten about the Indian Judiciary”. The Indian judiciary has come into notice for the role played by it in contrast to the role assigned to it under the Constitution.

The information on judicial process given below is from an Introduction by J. W. Peltason in encyclopedia.com that is based on judicial processes in the Courts of United States, England and France. For more information, the best single source of information is the quarterly American Journal of Comparative Law.

What is a Judicial Process?

The judicial process is a set of interrelated procedures and roles for deciding disputes by an authoritative person/s whose decisions are regularly obeyed. The disputes are to be decided according to a previously agreed upon set of procedures and in conformity with prescribed rules. As an incident, or consequence, of their dispute-deciding function, those who decide make authoritative statements of how the rules are to be applied, and these statements have a prospective generalised impact on the behaviour of many besides the immediate parties to the dispute. Hence the judicial process is both a means of resolving disputes between identifiable and specified persons and a process for making public policies.

Separation of Judicial Process from Legislative and Administrative Processes

What is the essence of the judicial or adjudicatory process and what distinguishes it from the legislative and administrative processes? During the last several centuries this exercise in political taxonomy has taken on special urgency and normative concerns. For under the doctrine of separation of powers it became improper for legislatures to engage in the judicial process—issuance of bills of attainder, for example—or for judges to assume functions that are thought to be within the scope of the legislative process.

The classic doctrine of separation of powers divided the world of political activity into the three familiar divisions based both on what was thought to be the behaviour of political actors and on what were thought to be the requirements for the maintenance of liberty. The judiciary was assigned the function of applying the laws that the constitution makers and the legislatures had created and that the administrators enforced.

The Orthodox theory of Judicial Process.

According to what is variously called the “mechanical,” “slot-machine,” “photographic,” “formalistic,” “conceptual,” or “orthodox” theory of the judicial process, judges, like doctors or scientists, are trained technicians who apply their specialised knowledge to discover answers to legal disputes.

Judging is to be sharply distinguished from politics. Political forces determine what the rules are; the judge merely applies the given rules to the facts. If the judges come across a novel situation for which there is no agreed upon rule, by a process of analogy and logic they discover what rule should be applied; to this extent, and to this extent only, they may be said to create rules.

The Realists’ Criticism

This formalistic conception of the judicial process has always been questioned by “legal realists”. Using the term “realists” in its broadest sense to include all who are skeptical of the traditional analysis, we might mention three of the major assertions:

(1) Legal rules do not determine judicial decisions. “The theory that rules decide cases seems for a century to have fooled, not only library-ridden recluses, but judges” (Llewellyn 1934, p. 7). “[The] half explanatory, half apologetic reference to the judge’s subservience to the law is at best a playful protective device; at worst it testifies to his unwillingness to understand his own role in the social process” (Kirchheimer 1961, p. 187).

The point here—and about it there remains much confusion—is not that there are no legal rules or that there is always uncertainty as to what the law requires. The skepticism relates to the extent to which rules determine judicial decisions. There are rules, for example, conferring jurisdiction on courts and making their decisions authoritative. Clearly understood laws govern the great bulk of human transactions; most men know what they must do if they wish the contracts they make to be valid and enforceable by courts. Most legal conflicts do not give rise to litigation, since the law provides relatively precise answers to most questions without the necessity of bringing the matter before a judge. Furthermore, often the judge is not asked which rule should be applied but what happened, that is, to determine who did what to whom. And in other instances, especially at the trial level, the judge’s function is to legitimize a transaction by applying a rule about which there is no dispute. No judge is likely to make a decision in such a case contrary to the widely accepted rule; if he did so his decision would not long survive, and he would be unmasked as an incompetent. In this sense he has no discretion, and the rule does provide a guideline.

However, when a judge must resolve a conflict and there is a dispute as to which rule should be applied, the traditional explanation of the judicial process is misleading. According to this explanation judges look to past precedents or to constitutions, statutes, or codes and find the proper rule to resolve the dispute. But there are conflicting precedents and an infinite variety of factual situations to which the uncertain precedents can apply. Nor do constitutions, statutes, and codes provide certain guidelines. “Much of the jurisprudence of this century has consisted of the progressive realization (and sometimes the exaggeration) of the important fact that the distinction between the uncertainties of communication by authoritative example (precedent), and the certainties of communication by authoritative general language (legislation) is far less firm than this naive contrast suggests” (Hart 1961, p. 123).

(2) The formal theory of interpretation and the fiction of legislative intent are methods of “paying lip service to the prevailing myth of statutory interpretation and to the equally mythical notion that judicial legislation is both unconstitutional and improper… Attempts to hide that fact [of the creative function of statutory interpretation] behind a cloak of verbiage are fatuous at best. And the judicial creative activity applies, to some degree at least, to all statutes” (Miller 1956, p. 34).

Judges do and must make law. But this is not to say that when judges make law they are acting improperly, for such lawmaking is inherent in their function. A judge may be neutral between the parties to a lawsuit and dedicated to the principles of his craft, but he must choose; and the difference between one judge’s choice and another’s does not stem from any difference in their technical knowledge of the law, but from their differing response to the conflicting values which the case presents.

To recognize that judges make law is not to conclude that they are “free” to make any laws they wish; and while one strand of the realist ferment emphasizes the choice-making, creative role of the judge, another searches for the variables that condition and restrict that choice.

(3) The decisions are not personal choices of the judges, accidental, arbitrary, or divorced from the rest of the political system. Although some American realists of the 1930s seemed to suggest that judicial rulings were determined by the personality traits of the jurists—which some wag labeled the “breakfast-food theory” of jurisprudence—most writers have concluded that to add personality to precedent does not substantially advance our understanding of the judicial process.

Statutory directions, traditional procedures, the demands of the judicial role, and the organizational and political connections between the judicial process and the political system set limits to and give a direction to judicial decision making.

Underlying much of the work of the realists is the view that since judges must inevitably choose between competing values, awareness of the fact that they are making such choices, some knowledge on which to base these choices, and concern for the social consequences of the choice are desirable.

During the 1920s and the 1930s the American legal realists emphasized empiricism and attacked formal legal concepts, and they made what seemed to be sharp distinctions between the “is” and the “ought.” But there was no agreement among them whether judicial or any other values could be established by objectively demonstrable standards. A relativist position toward value questions did not— and does not—necessarily follow from a realist analysis of the judicial process, although many critics of realism have so charged. It is true that many realists, especially those writing prior to World War II, were skeptical that judges were any better equipped than legislators or administrators to determine these value questions. And they felt that many judges had too simple-minded a conviction that they had some special insight into justice.

The realist “ferment” of the 1920s and 1930s had important political consequences, especially in the United States. At the time American, English, and Canadian judges were striking down or restricting the scope of social welfare legislation, were generally hostile to positive government relating to economic matters, and were not particularly zealous in protecting civil liberties. The judges looked askance upon administrative agencies and wherever possible insisted that decisions of administrators be subject to review by judges.

Implications of Power on the Judicial Process

Power is the ability to change the legal position of another person. According to Foucault, power can be studied in terms of cratology, the study of power in its various ways and usages.

2 The exercise of the power is not simply a relationship between partners, individuals… it is a process in which some acts affect others. This is to suggest, of course, that there is no such thing as power, with or without a capital letter, which is assumed to exist universally in a concentrated or diffuse. Power operates when it is placed into practice, even though it is incorporated into diverse fields of possibilities to bear on permanent structures.

3 In our contemporary disillusionment, it is again becoming fashionable to underestimate both the role that the law currently plays in world power and the role that, with more effective organisation, it might play in preserving the principles of a democratic, peaceful and free society.