Personal Liability: Forging New Tools of Accountability in Public Law

2021 ◽  
pp. 001955612110105
Author(s):  
M. P. Chengappa ◽  
Adya Jha
Keyword(s):  
Natural Gas ◽  
Urban Development ◽  
Supreme Court ◽  
Public Law ◽  
The Other ◽  
Public Accountability ◽  
The Public ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Personal Liability

In 1991, two decisions passed by benches headed by Kuldip Singh J. marked an unprecedented shift to holding public officers personally liable to pay damages for arbitrary orders. The Supreme Court of India imposed damages to the quantum of fifty lakh rupees on Captain Satish Sharma, the former Minister of Petroleum and Natural Gas, for arbitrarily allotting fifteen petrol outlets out of his discretionary quota to allottees related to him or his officials. Similarly, Sheila Kaul, the former Minister of Urban Development, was ordered to pay damages of sixty lakh rupees for illegal allotment of shops from her discretionary quota to her associates. While the two decisions ushered in a revolution of personal liability in the arena of public law, one was overturned by a review judgement, and the other has been simply forgotten despite being upheld in the review petition. In light of the growing number and prominence of misfeasance by public officers, this article considers the need for rethinking the theory of personal liability to compensate the public or individual loss adequately, deter the officials and assess it as an alternative to traditional mechanisms of public accountability.

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?

scholarly journals Legitimação ativa da defensoria pública no mandado de injunção coletivo

2018 ◽  
Vol 42 (1) ◽  
pp. 80-95
Author(s):  
Olavo Augusto Vianna Alves Ferreira ◽  
Guilherme De Siqueira Castro
Keyword(s):  
Supreme Court ◽  
Point Of View ◽  
The Other ◽  
Public Defender ◽  
The Public ◽  
The Supreme Court ◽  
The Subject ◽  
The Law

O presente artigo tem o objetivo de examinar a legitimidade ativa da Defensoria Pública no mandado de injunção coletivo. Para a consecução desta finalidade, o tema será abordado tanto do ponto de vista constitucional como do ponto de vista processual. Será estudado o vício de constitucionalidade formal da Lei 13.300/2016 no que tange a legitimidade ativa da Defensoria Pública no mandado de injunção coletivo. A necessidade de pertinência temática para a impetração e o tipo de interesse transindividual tutelado são questões que envolvem um profícuo debate constitucional que já foi objeto de exame pelo Supremo Tribunal Federal. Por derradeiro, abordaremos a possibilidade de litisconsórcio ativo no mandado de injunção envolvendo a Defensoria Pública e os demais legitimados extraordinários previsto na lei de regência da ação injuncional.   Abstract This article aims to examine the active legitimacy of the Office of the Public Defender in the collective writ of injunction. To achieve this purpose, the subject will be addressed both from a constitutional point of view and from a procedural point of view. This paper will study the formal constitutional vice of Law 13.300 / 2016 regarding the active legitimacy of the Office of the Public Defender in the collective writ of injunction. The need for thematic relevance to the filing and type of ward transindividual interest are issues involving a fruitful constitutional debate that has been the subject of examination by the Supreme Court. For last, we discuss the possibility of active joinder in the writ of injunction involving the Office of the Public Defender and the other extraordinary legitimated under the law of Regency injuncional action.

The arbitrability of civil fraud in India: analysing the Supreme Court of India’s decision in Avitel Post Studioz Ltd

2020 ◽  
Author(s):  
Sayantan Bhattacharyya ◽  
Moksh Ranawat
Keyword(s):  
Supreme Court ◽  
Civil Law ◽  
Criminal Proceedings ◽  
The Public ◽  
Supreme Court Of India ◽  
It Impacts ◽  
The Supreme Court ◽  
The Impact ◽  
Considerable Period

ABSTRACT The arbitrability of civil fraud under Indian jurisprudence had been a victim of vaguely worded and scattered tests for a considerable period of time. In its recent decision in Avitel Post Studioz Ltd v HSBC PI Holdings (Mauritius) Ltd., the Supreme Court of India finally put the uncertainties regarding the matter to rest by harmonizing the existing law on it and crystallizing the ‘public flavour’ standard. According to this standard, allegations of fraud which find their roots in civil law and have no public considerations shall now be considered arbitrable in India. The judgment also clarified the impact that parallel criminal proceedings based on the same set of facts would have on the arbitrability of the civil aspects of such fraud, bringing necessary clarity to the erstwhile regime. In this article, we explore the implications of this judgment in detail, highlighting its relevance for arbitration in India, and how it impacts the jurisprudential position on the arbitrability of fraud in the country.

Invisible Inequalities

2019 ◽  
pp. 299-345
Author(s):  
Shomona Khanna
Keyword(s):  
Supreme Court ◽  
Working Conditions ◽  
Public Interest ◽  
Public Interest Litigation ◽  
The Public ◽  
Supreme Court Of India ◽  
National Movement ◽  
Public Campaign ◽  
The Supreme Court ◽  
Lower Castes

Started in 1997, Safai Karmachari Andolan (SKA) is a national movement for eradicating the practice of manual scavenging—an occupation which involves cleaning of dry latrines with tin plates and brooms and carrying of human excreta by members of lower castes. The SKA has been leading the public campaign to destroy illegal dry latrines and for the proper implementation of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993. In 2003, SKA, with 18 other organizations, filed a public interest litigation petition in the Supreme Court of India seeking eradication of manual scavenging, liberation of all manual scavengers from their degrading jobs, and initiation of measures for their rehabilitation. The SKA also works for the dignity and better working conditions for sanitation workers such as sewage workers, pit workers, and sweepers. This chapter seeks to record the work of SKA including its influence on the law and policymaking process.

Constitutional Law in 1910–1911: The Constitutional Decisions of the Supreme Court of the United States in the October Term, 1910

1912 ◽  
Vol 6 (4) ◽  
pp. 513-523
Author(s):  
Eugene Wambaugh
Keyword(s):  
United States ◽  
Supreme Court ◽  
Constitutional Law ◽  
The United States ◽  
Point Of View ◽  
The Other ◽  
The Public ◽  
Preceding Article ◽  
The Supreme Court ◽  
Constitutional Decisions

As was indicated in a preceding article, the chief feature of the judicial year 1909–1910, from the point of view of Constitutional Law, was that the decisions, though numerous, were comparatively unimportant. On the contrary the chief feature of the constitutional decisions of the judicial year 1910–1911 was that an unusual number of them appeared to the public to be of great interest and consequence. Hence it is advisable to deal with the judicial year 1910–1911 in a manner wholly different from that which was adopted with its predecessor. The article covering the judicial year 1909–1910 collected all the constitutional cases in the Supreme Court of the United States, and, with the briefest possible indication of the point decided, distributed them among the several clauses of the Constitution which they served to annotate. For the judicial year 1910–1911, on the other hand, the plan adopted is to confine attention almost wholly to the few decisions making the year memorable. Thus it becomes possible to give a rather full statement of those few decisions and now and then to add comments.

DEVOLUTION AND DISCRIMINATION BETWEEN CITIZENS UNDER ARTICLE 14 ECHR: PRESERVING LOCAL PROVISION

2017 ◽  
Vol 76 (3) ◽  
pp. 472-475
Author(s):  
Leanne Cochrane
Keyword(s):  
Human Rights ◽  
National Health Service ◽  
Northern Ireland ◽  
Health Service ◽  
Supreme Court ◽  
National Health ◽  
Public Law ◽  
The Public ◽  
Secretary Of State ◽  
The Supreme Court

Many women from Northern Ireland (NI) travel to England each year to pay for abortion services because of the limited availability of the service in NI. In R (on the application of A and B) (Appellants) v Secretary of State for Health (Respondent) [2017] UKSC 41; [2017] 1 W.L.R. 2492, the Supreme Court was asked whether it was unlawful for the Secretary of State for Health to have failed to make provision for abortion services free of charge under the National Health Service in England to women who are UK citizens usually resident in NI. The majority answered “no” and, on delivering the judgment, Lord Wilson (for the majority) described the Court as “sharply divided” on both the public law and human rights arguments that had been before it.

Penological Justifications as Sentencing Factors in Death Penalty Sentencing

2021 ◽  
pp. 227740172097285
Author(s):  
Anup Surendranath ◽  
Neetika Vishwanath ◽  
Preeti Pratishruti Dash
Keyword(s):  
Supreme Court ◽  
Death Penalty ◽  
The Other ◽  
Death Sentence ◽  
Life Imprisonment ◽  
The Core ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
The One ◽  
Core Framework

When the Supreme Court of India upheld the constitutionality of the death penalty in Bachan Singh v. State of Punjab in 1980, it also laid down a sentencing framework for subsequent sentencing courts, guiding them in deciding between life imprisonment and the death penalty. This framework, popularly known as the ‘rarest of rare’ framework, was focused on individualised punishment. However, subsequent judgments have strayed away from Bachan Singh’s core framework, and the use of penological justifications as sentencing factors has contributed significantly to this deviation. This article argues that it is not within the mandate of sentencing judges to invoke penological theories as separate sentencing factors in individual cases when deciding between life imprisonment and the death sentence. The article begins by distinguishing between the penological justifications used to retain the death penalty in Bachan Singh and those underlying the sentencing framework developed in the judgment. It then examines subsequent judgments to trace the manner in which the capital sentencing framework was shaped to be crime-centric through the use of penological ideas like ‘collective conscience’ and deterrence. Examining the implications of penological justifications occupying a dominant place in death penalty sentencing, the article examines the broader concerns about the lack of clarity with sentencing goals. The failure in individual cases to distinguish between penological justifications as sentencing factors determining punishment, on the one hand, and viewing them as consequences arising out of an individualised sentencing process, on the other, lies at the core of the critique in this article.

scholarly journals THE JUSTICIABILITY OF RELIGION

2017 ◽  
Vol 32 (2) ◽  
pp. 285-310
Author(s):  
Satvinder S. Juss
Keyword(s):  
Supreme Court ◽  
Objective Assessment ◽  
Belief System ◽  
Public Law ◽  
Religious Institutions ◽  
Religious Institution ◽  
The Public ◽  
The Supreme Court ◽  
The Uk ◽  
Court Of Appeal

AbstractInShergill & Others v. Khaira & Others[2014] UKSC 33, the UK courts considered whether a Sikh holy saint had the power to dismiss trustees who questioned his “succession” to the religious institution of theNirmal Kutia Johal. The Supreme Court, reversing the decision of the Court of Appeal that religious questions were “nonjusticiable,” reinstated the judgment at first instance of the High Court to the contrary. The decision of the Supreme Court is important because whenever questions of the identification and legitimacy of successors to a religious institution have arisen, their “justiciability” before a secular court has invariably been a bone of contention on grounds that it threatens the autonomy of religious institutions. InShergillthe Supreme Court got around these concerns by drawing a normative distinction between the public law of the land (which the courts are required to determine), and the internal private law of a religious institution on matters of succession, ordination, and removal (which are not in themselves for the courts to decide). ButShergillalso went further than previous case law in two respects. First, the fundamental tenets of a belief system are capable of an objective assessment by a secular court provided that there is public law element to a dispute, in which case the court can then decide on the fitness of the successor for office. This means there is no general presumption that a secular court is barred from considering religious questions per se. Second, these principles apply just as much to the judicial consideration of non-Christian faiths as they to the Christian religion, and this is so notwithstanding the court's unfamiliarity with other faiths.

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.

O ENSINO RELIGIOSO EM QUESTÃO

2018 ◽  
Vol 9 (21) ◽  
pp. 459
Author(s):  
Mauro Rocha Baptista
Keyword(s):  
Supreme Court ◽  
Religious Education ◽  
Common Core ◽  
Historical Perspective ◽  
National Curriculum ◽  
The Other ◽  
Federal Constitution ◽  
The Supreme Court ◽  
The Common

Neste artigo analisamos a relação do Ensino Religioso com a sua evolução ao longo do contexto recente do Brasil para compreender a posição do Supremo Tribunal Federal ao considerar a possibilidade do Ensino Religioso confessional. Inicialmente apresentaremos a perspectiva legislativa criada com a constituição de 1988 e seus desdobramentos nas indicações curriculares. Neste contexto é frisado a intenção de incluir o Ensino Religioso na Base Nacional Curricular Comum, o que acabou não acontecendo. A tendência manifesta nas duas primeiras versões da BNCC era de um Ensino Religioso não-confessional. Uma tendência que demarcava a função do Ensino Religioso em debater a religião, mas que não permitia o direcionamento por uma vertente religioso qualquer. Esta posição se mostrava uma evolução da primeira perspectiva histórica mais associada à catequese confessional. Assim como também ultrapassava a interpretação posterior de um ecumenismo interconfessional, que mantinha a superioridade do cristianismo ante as demais religiões. Sendo assim, neste artigo, adotaremos o argumento de que a decisão do STF, de seis votos contra cinco, acaba retrocedendo ante o que nos parecia um caminho muito mais frutífero.Palavras-chave: Ensino Religioso. Supremo Tribunal Federal. Confessional. Interconfessional. Não-confessional.Abstract: On this article, we analyze the relation between Religious education and its evolution along the currently Brazilian context in order to understand the position of the Supreme Court in considering the possibility of a confessional Religious education. Firstly, we are going to present the legislative perspective created with the 1988 Federal Constitution and its impacts in the curricular lines. On this context it was highlighted the intention to include the Religious Education on the Common Core National Curriculum (CCNC), which did not really happened. The tendency manifested in the first two versions of the CCNC was of a non-confessional Religious Education. A tendency that delineated the function of the Religious Education as debating religion, but not giving direction on any religious side. This position was an evolution of the first historical perspective more associated to the confessional catechesis. It also went beyond the former interpretation of an inter-confessional ecumenism, which kept the superiority of the Christianity over the other religions. As such, in this paper we adopt the argument that the decision of the Supreme Court, of six votes against five, is a reversal of what seemed to be a much more productive path on the Religious Education.Keywords: Religious Education. Brazilian Supreme Court. Confessional. Inter-confessional. Non- confessional.Enviado: 23-01-2018 - Aprovado e publicado: 12-2018

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