Scandalizing the judiciary: An analysis of the uneven response of the Supreme Court of India to sexual harassment allegations against judges

2020 ◽  
Vol 18 (2) ◽  
pp. 563-590
Author(s):  
Sanjay Jain ◽  
Saranya Mishra
Keyword(s):  
Sexual Harassment ◽  
Supreme Court ◽  
The State ◽  
Fundamental Rights ◽  
The Other ◽  
Lower Court ◽  
High Courts ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Systematic Pattern

Abstract The Supreme Court of India (SC) pronounced a momentous judgment in Vishaka v. State of Rajasthan in 1997, categorically recognizing the menace of sexual harassment (SH) at workplace and constitutionally rendering it as being in violation of fundamental rights guaranteed by Articles 15, 19, and 21 of the Constitution of India 1950. The Court also provided a mechanism for redressal against SH, which was ultimately reinforced by Parliament with the enactment of Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act 2013 (POSH Act). However, when it comes to allegations of SH against judges in the SC and High Courts by its employees, interns, or lower court judges, the response of the SC has been abysmal to say the least. There is a systematic pattern to suggest foul play and conspiracy in each such allegation, and judges, including even the Chief Justice of India (CJI), have not hesitated to openly indulge in victim-shaming and-blaming. In other words, the court has not been able to uphold its own jurisprudence on sexual harassment, which it expects to be scrupulously adhered to by other organs of the state. It is submitted that in not supporting the cause of victims alleging SH against judges, the other organs of the state are also party to this constitutional decay and serious infraction of fundamental rights. It leads us to ask the question, how can we guard against the guardians?

An Evaluation of the Enforcement of Fundamental Rights and the Controversy of Jurisdiction of the Federal and State High Courts in Nigeria

2020 ◽  
Vol 2020 ◽  
pp. 59-78
Author(s):  
Bo Alloh
Keyword(s):  
Supreme Court ◽  
Federal Republic ◽  
Supreme Court Decision ◽  
The State ◽  
Fundamental Rights ◽  
Court Decision ◽  
High Courts ◽  
The Supreme Court ◽  
State High Courts

This article examines the issue of jurisdiction between various high courts on the enforcement of fundamental rights in Nigeria. Fundamental rights are derived from the constitution and are expressly entrenched in the constitution of a country. They vary from one country to another and are specifically enacted in a country’s constitution in line with the history and culture of the country. In Nigeria, jurisdiction is vested in both State and Federal High Courts with respect to the enforcement of fundamental rights. However, the jurisdiction of the State High Courts is ousted and donated to the Federal High Courts, once a case on fundamental rights falls under section 251 of the 1999 Constitution of the Federal Republic of Nigeria. The researcher adopted the doctrinal method of research. The objective of this article is to reveal that the concurrent jurisdiction of both the Federal and State High Courts to hear and determine applications to secure the enforcement of fundamental rights has led to years of seemingly unsettled controversies, academically and procedurally. However, this controversy has been settled in the case of FUT Minna v Olutayo. This article concludes that the Supreme Court decision in the case of FUT Minna v Olutayo supports the realisation of the enforcement of fundamental rights in Nigeria.

A Note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Sipho Stephen Nkosi
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Customary Law ◽  
Eastern Cape ◽  
High Court ◽  
Nelson Mandela ◽  
The Supreme Court ◽  
Court Of Appeal

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela to the SCA against the decision of the Eastern Cape High Court, Mthatha, dismissing her application for review in 2014. In that application, she sought to have reviewed the decision of the Minister of Land Affairs, to transfer the now extended and renovated Qunu property to Mr Mandela and to register it in his name. Because her application was out of time, she also applied for condonation of her delay in making the application. The court a quo dismissed both applications with costs, holding that there had been an undue delay on her part. Mrs Mandela then approached the Supreme Court of Appeal, for special leave to appeal the decision of the court a quo. Two questions fell for decision by the SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s part in instituting review proceedings; and whether the order for costs was appropriate in the circumstances of the case. The SCA held that there was indeed an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had been an undue delay does not necessarily mean that an order for costs should, of necessity, particularly where, as in this case, the other litigant is the state. It is the writer’s view that two other ancillary points needed to be raised by counsel and pronounced on by the Court: (a) the lawfulness and regularity of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s status as a customary-law widow—in relation to Mr Mandela.

scholarly journals LAWSUIT IN ADMINISTRATIVE COURT AFTER ADMINISTRATIVE PROCEEDINGS BASED ON PERMA NO. 6 OF 2018

2019 ◽  
Vol 8 (3) ◽  
pp. 458
Author(s):  
Muhammad Adiguna Bimasakti
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Government Administration ◽  
The Supreme Court ◽  
Administrative Proceedings

The enactment of Law No. 30 of 2014 concerning Government Administration very much changes the paradigm of the proceedings in the State Administrative Court. One of the fundamental things is about administrative proceedings as pre-litigation proceedings. Under Article 75 of Law No. 30 of 2014 concerning Government Administration, citizens who feel disadvantaged by a Government’s Decision or Action can file an administrative proceedings, and then file a lawsuit in the Administrative Court. Regarding this regulation, two interpretations arise regarding the obligation of administrative proceedings as pre-litigation proceedings. One party argues that the administrative proceedings as pre-litigation proceedings must be carried out before filing a lawsuit in the Court, and the other argues this is not mandatory. For a period of four years, the interpretation of the obligation of administrative proceedings as a pre-litigation proceedings in Law No. 30 of 2014 concerning Government Administration is floating in the realm of discourse. It was only on December 4th, 2018 that the Supreme Court issued a Supreme Court Regulation (PERMA) No. 6 of 2018 concerning Guidelines for Resolving Disputes Regarding Government Administration After Administrative Proceedings, finally the Supreme Court dictates that administrative proceedings as a pre-litigation proceedings is a must. However, the PERMA does not regulate fundamental things regarding lawsuit after administrative proceedings, namely, who will be seated as the defendant, and what is the object of the lawsuit. In addition, there are also a number of things that needed to be reviewed regarding the arrangements in the PERMA, such as regarding the deadline for a lawsuit in the Court.

The Supreme Court of India and Inter-State water dispute: an analysis of the judgments on Mullaperiyar Dam

Water Policy ◽  
2015 ◽  
Vol 17 (6) ◽  
pp. 1003-1018
Author(s):  
M. P. Ram Mohan ◽  
Krittika Chavaly
Keyword(s):  
Supreme Court ◽  
Environmental Protection ◽  
Tamil Nadu ◽  
The State ◽  
Specific Reference ◽  
Supreme Court Of India ◽  
First Case ◽  
The Supreme Court ◽  
State Water ◽  
Inter State

This paper addresses the issue of the Mullaperiyar Dam dispute between Kerala and Tamil Nadu with specific reference to the two judgments delivered by the Supreme Court of India on the matter. This paper attempts to examine the arguments, facts, and the judgment of the Court on each of the primary issues raised during the course of the dispute. The first case was filed by the Mullaperiyar Environmental Protection Forum in 2001, wherein the Court adjudged the case in favour of the respondents, the State of Tamil Nadu. Consequently, due to certain developments, examined in the course of the second case, the State of Tamil Nadu filed a petition before the Supreme Court against Kerala in 2006 seeking relief for the actions on the part of the latter after the judgment in the first case. A Constitution Bench was constituted to adjudicate this case, which re-examined certain issues raised during the first case and conclusively laid down its decision in favour of Tamil Nadu.

The Reckoning

2021 ◽  
pp. 483-520
Author(s):  
Eric Van Young
Keyword(s):  
Supreme Court ◽  
Mexico City ◽  
The State ◽  
The Other ◽  
Grand Jury ◽  
The Supreme Court ◽  
The Government ◽  
The U.S

Alamán’s internal self-exile in Mexico City, when he hid for nearly two years only to emerge in 1834, is discussed in as much detail as is possible for a largely undocumented episode. Having left the government along with the other ministers during 1832, he was being pursued by agents of the state and political enemies to stand trial before a congressional grand jury for his involvement in the judicial murder of Vicente Guerrero. The chapter also discusses his cordial relationship with the U.S. envoy who replaced the recalled Joel Poinsett, Anthony Butler. The fall of the Anastasio Bustamante government to an uprising led by Santa Anna is narrated, along with Alamán’s eventual trial, his spirited defense of himself, the intervention of Carlos María de Bustamante (not the president) on his behalf before the Supreme Court, and the ex-minister’s exoneration at the hands of President Santa Anna.

Enforcing Rights against the State in India

2019 ◽  
pp. 211-279
Author(s):  
Florian Matthey-Prakash
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
Empirical Studies ◽  
The State ◽  
Access To Justice ◽  
District Courts ◽  
Public Interest Litigation ◽  
High Courts ◽  
The Supreme Court

Chapter 4 deals with the issue of lack of access to justice and attempts to find reasons for the inaccessibility of the higher judiciary. While it appears to be clear to observers that the Supreme Court and high courts are not accessible enough, surprisingly, there are actually no empirical studies that examine why this is the case. Some factors can, however, be deduced from a study dealing with the inaccessibility of district courts, that is, the lower judiciary.The fourth chapter also shows that the institution of Public Interest Litigation, for various reasons, cannot compensate for lack of access to justice, and that the state is not properly implementing (or not at all exploring) many other possible alternative mechanisms.

scholarly journals Concept of right to life and its protection under the Constitution of India

2019 ◽  
pp. 55-68
Author(s):  
HARSH PATHAK
Keyword(s):  
Supreme Court ◽  
Fundamental Rights ◽  
Right To Life ◽  
Indian Constitution ◽  
Personal Liberty ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Original Sense ◽  
Life Itself ◽  
The Right

The constitution and jurist characterized Article 21 as, “the procedural magna carta, protective of life and liberty”. This right has been held to be the heart of the constitution, the most organic and progressive provision in Indian constitution, the foundation of our laws. Article 21 can only be claimed when a person is deprived of his “life” or “personal liberty” by the “State” as defined in Article 12. Violation of the right by private individuals is not within the preview of it. Article 21 applies to natural persons. The right is available to every person, citizen or alien. It, however, does not entitle a foreigner the right to reside and settle in India, as mentioned in Article 19 (1) (e). Everyone has the right to life, liberty and the security of person. The right to life is undoubtedly the most fundamental of all rights. All other rights add quality to the life in question and depend on the pre-existence of life itself for their operation. There would have been no fundamental rights worth mentioning if Article 21 had been interpreted in its original sense. This Article will examine the right to life as interpreted and applied by the Supreme Court of India.

scholarly journals COVID-19 and the judiciary: the case for access to testing Sudhi versus Union of India

2020 ◽  
Vol 7 (9) ◽  
pp. 3769
Author(s):  
Diya Uberoi
Keyword(s):  
Supreme Court ◽  
Poverty Line ◽  
The State ◽  
Private Companies ◽  
Private Hospitals ◽  
Health Crisis ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Significant Step ◽  
The Government

In an effort to protect citizens’ right-to-health, the Supreme Court of India on April 8th ordered the government to make COVID-19 testing free in all private hospitals and labs. The Court’s decision in Sudhi v. Union of India marked a significant step towards ensuring that all people, especially poor workers in the informal sector have access to necessary care. Five days later, however, after facing objections from private companies and the state, the Supreme Court reversed its previous order and made testing free for only those living below the poverty line, an obligation already mandated under the National Health Policy Scheme.This commentary suggests that judicial action should be strengthened, not hampered, in times of global health crisis. While no state has unlimited resources to ensure the protection of health, the judiciary should be emboldened to hold the state to account.   

Article 21A

2019 ◽  
pp. 118-210
Author(s):  
Florian Matthey-Prakash
Keyword(s):  
Supreme Court ◽  
The State ◽  
High Courts ◽  
Legal Obligations ◽  
The Supreme Court ◽  
Enforcement Mechanisms

Chapter 3 offers some guidance concerning the content of Article 21A. This question is approached purely legally, not politically. Therefore, the chapter does not describe what content would be desirable. Instead, it discusses which concrete legal obligations the article might impose on the state. It also highlights that Article 21A, read with Articles 32 and 226, clearly imposes an obligation on the state to provide accessible and effective enforcement mechanisms to right-bearers. The fact that the petitioners in none of the cases concerning Article 21A decided by the Supreme Court, and in hardly any cases decided by the high courts, were aggrieved children or their parents shows that the higher judiciary is not accessible enough.

Jarnail Singh and Others v. Lachhmi Narain Gupta and Others: Supreme Court of India declares application of the creamy layer test on the Scheduled Castes and the Scheduled Tribes.

2019 ◽  
Vol 52 (3) ◽  
pp. 383-395
Author(s):  
Arpita Sarkar
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Case Note ◽  
The State ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Scheduled Castes

This case note discusses the Jarnail Singh case which presented a fresh opportunity before a constitution bench of the Supreme Court of India to undo the legal discrepancies created in Nagaraj. However, efforts to ‘save’ Nagaraj verdict led the court to introduce the creamy layer test for the Scheduled Castes and the Scheduled Tribes. In doing so, the court introduced for itself a new subject of judicial review. Post-Indra Sawhney, a decision by a nine-judge bench of Supreme Court, the creamy layer test was applied only to the ‘Backward Classes’ for reservation. Various judgments including Indra Sawhney have explicitly prohibited the application of this test on the SCs and the STs. Creamy layer among backward classes has been described by the executive organs of the State in appropriate circumstances. By describing the creamy layer test as a component of the equality principle, the court declared itself as the ultimate arbiter that may exclude members from SC and ST along with the procedure laid in Articles 341(2) and 342(2) of the constitution. Further, in reading the creamy layer test as a wider attribute of Article 16 generally, as opposed to Article 16(4-A) and 16(4-B) of the constitution, the decision left ambiguity on the application of this test at different stages of employment.

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