scholarly journals Right to Environment and Right to Development: A Judicial Conundrum

1970 ◽  
Vol 1 (1) ◽  
pp. 49-68
Author(s):  
Uday Shankar ◽  
Saurabh Bindal
Keyword(s):  
Basic Structure ◽  
The State ◽  
Fundamental Rights ◽  
Human Beings ◽  
Supreme Court Of India ◽  
Right To Development ◽  
The Supreme Court ◽  
The Status ◽  
Free Environment ◽  
The Right

Pollution free environment is indispensible for the inhabitants of this planet. The Supreme Court of India taking cognizance of the same in its judicial creativity has accorded the right to live in a pollution free environment the status of a fundamental right under Article 21 of the Constitution of India. At the same time, right to development places human beings at the centre of development casting an obligation on the state to ensure the benefits of development to the citizenry. Interestingly, both right to environment and right to development draw their genesis from Article 21 of the Constitution. Such affirmation of rights necessarily presents a question of compliance by the state. This paper traces the origin of right to environment and right to development in the larger context of the fundamental rights. It critically examines the usefulness of declaration of these rights under the scheme of the Constitution. It argues that the judiciary in its judicial creativity has made unreasonable interference into the matters reserved for the executive which is not in accordance with the basic structure of the Constitution. The paper calls for maintenance of harmony between the two organs of the state.

Galvanisation of the Right to Development within the Shared Constitutional Space in India

2018 ◽  
Vol 19 (2) ◽  
pp. 268-299
Author(s):  
Dharmendra Kumar Singh
Keyword(s):  
Supreme Court ◽  
Fundamental Rights ◽  
Social Scientists ◽  
Holistic View ◽  
New Horizons ◽  
Supreme Court Of India ◽  
Right To Development ◽  
The Supreme Court ◽  
The Right ◽  
The Impact

This article accentuates the concept of the right to development (rtd) and focuses on the various facets of rtd as developed by the Supreme Court of India in its multiple pronouncements since the advent of the last decade of the 20th century. The apex court, through a conjoint reading of various aspects provided in the Constitution’s Preamble, Fundamental Rights, Directive Principles and Fundamental Duties with the Declaration on rtd has interpreted various cases that have opened new horizons of curative developmental jurisprudence in India. The main aim of this study is to capture the various trends and directions of discourse on rtd and explore the constitutional space for rtd in India. This article also evaluates the impact that Declaration of rtd has had on the Supreme Court of India and to what extent has the Supreme Court of India galvanised rtd to provide remedies to millions of Indians. The article emphasises the holistic view taken by the Supreme Court in matters of private rights versus the developmental rights of millions. Another significant aspect of rtd that has been emphasised in this article is the conflict between human rights of the marginalised group with the burgeoning rtd. The discourse on economic growth and rtd within the constitutional space will remain in the heart of politicians, social scientists and the populace in the coming years.

Fundamental Rights in the Indian Constitution: Could it include ‘Right to Sanitation’?

2016 ◽  
Vol 5 (6) ◽  
pp. 291-296
Author(s):  
Anil Kumar Mohapatra
Keyword(s):  
Fundamental Rights ◽  
Safe Drinking Water ◽  
Right To Life ◽  
Personal Liberty ◽  
Sanitation Facility ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
The World ◽  
The Government ◽  
The Right

Long before India gained independence, M.K. Gandhi remarked that the availability of Sanitation facility is more important than gaining Independence for an Indian. Of late, it is now increasingly felt and realized in India that facilities like toilet, safe drinking water, accompanied by good hygienic conditions are fundamental necessities of a person. These are prerequisites of social and economic justice and genuine development. The Supreme Court of India in one judgement held that Right to life and personal liberty, should include right to privacy and human dignity etc. Despite that it has been an admitted shame that India still has the largest number of people defecating in open in the world. There are reported incidences of rape and murder of women in many places in India as women rely on open field for attending to the call of nature in morning and evening. The attempts like Community toi-let system, pay-and-use toilet system and schemes like ‘Mo Swabhiman -Mo Paikhana’ have been found to be less effective. In this connection the ‘Clean India Mission’ campaign launched by the Government of India in 2014 has been regarded as a right approach in that direction. Government of the day is actively considering the demand to convert the Right to Sanitation from a developmental right to a fundamental right. It would make the state more accountable and responsible. Against this background, the paper argues that spending huge money on that would yield good dividend in future for the country.

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 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.

Justice K.S. Puttaswamy (Ret'd) and Anr v. Union of India and Ors

2017 ◽  
Vol 111 (4) ◽  
pp. 994-1000
Author(s):  
Menaka Guruswamy
Keyword(s):  
Fundamental Rights ◽  
National Database ◽  
Demographic Information ◽  
Right To Privacy ◽  
Fundamental Freedom ◽  
The Right To Privacy ◽  
Supreme Court Of India ◽  
Foreign Law ◽  
The Supreme Court ◽  
The Right

On August 24, 2017, the Supreme Court of India issued a rare, unanimous nine-judge decision holding that the right to privacy is protected by the Constitution of India. The case is all the more noteworthy because the Court reversed its prior decisions holding that the right to privacy was not protected by the country's Constitution. It arose out of the government's creation of a national database of biometric and demographic information for every Indian. Rejecting the government's arguments, the Court found that the right to privacy applies across the gamut of “fundamental” rights including equality, dignity (Article 14), speech, expression (Article 19), life, and liberty (Article 21). The six separate and concurring judgments in Justice K.S. Puttaswamy (Ret'd) and Anr v. Union of India and Ors are trailblazing for their commitment to privacy as a fundamental freedom and for the judges’ use of foreign law across jurisdictions and spanning centuries.

scholarly journals The Supreme Court of India: A People’s Court?

2019 ◽  
Author(s):  
Sital Kalantry
Keyword(s):  
Supreme Court ◽  
Fundamental Rights ◽  
Access To Justice ◽  
Human Beings ◽  
Common People ◽  
Supreme Court Of India ◽  
The People ◽  
The Supreme Court ◽  
The Rich ◽  
To Come

The Supreme Court of India has long been thought of as a court for the common people. This perception is rooted in the Indian constitution, which grants the Supreme Court original jurisdiction to hear cases alleging violation of fundamental rights. The Court has also embraced this vision of its role, and conceives of itself as an institution of “last resort for the oppressed and bewildered.” In a judgment from 1987, it expressly notes that it gives greater access to certain marginalized groups:this Court has always regarded the poor and the disadvantaged as entitled to preferential consideration than the rich and the affluent, the businessmen and the industrialists. The reason is that the weaker sections of Indian humanity have been deprived of justice for long, long years: they have had no access to justice on account of their poverty, ignorance and illiteracy. . . . The majority of the people of our country are subjected to this denial of access to justice and, overtaken by despair and helplessness, they continue to remain victims of an exploitative society where economic power is concentrated in the hands of a few and it is used for perpetuation of domination over large masses of human beings. This court has always, therefore, regarded it as its duty to come to the rescue of these deprived and vulnerable sections of Indian humanity in order to help them realise their economic and social entitlements and to bring to an end their oppression and exploitation.The Court’s self-conscious pro-poor discursion is most evident in its public interest jurisprudence, through which the Court removed many procedural barriers to accessing the Court; and assumed wide ranging remedial powers to ameliorate a range of socio-economic injustices.

scholarly journals Human dignity in the light of the Constitution, human rights and bioethics

2018 ◽  
Vol 28 (3) ◽  
pp. 283-289 ◽  
Author(s):  
Paulo André Stein Messetti ◽  
Dalmo De Abreu Dallari
Keyword(s):  
Human Rights ◽  
Human Dignity ◽  
The State ◽  
Fundamental Rights ◽  
Universal Declaration ◽  
Social Solidarity ◽  
Human Beings ◽  
The Social ◽  
The World ◽  
The Right

Introduction: Human dignity, as coined by the Universal Declaration of Human Rights (UDHR / 1948), is an expression social solidarity, which should cement the relations between people. Human dignity is the foundation of all rights, such as freedom, equality, justice and peace in the world, and in Brazil, human dignity was deemed a fundamental pillar of the country’s post-1988 constitutional order. Objective: This article seeks to a deeper investigation about the social nature of human dignity and its definition over time.     Methods: This is an exploratory research meant to unpack the concepts of "human dignity", "bioethics", "human rights" and "constitution". After describing the conceptual evolution of human dignity and the facts relevant to its conceptual formation in world history - as a normative standard and a legal rule -, we address the Universal Declaration of Human Rights (UDHR/1948), the Declaration of Helsinki (DH/1964), the Universal Declaration on Bioethics and Human Rights (UDBHR/2005), and the definition adopted in the Constitution of the Federative Republic of Brazil (CFRB/1988). The study was carried out without temporal limitation, and included a review of referenced books, legal doctrines, as well as articles and books in the SciELO database. Results and discussion: The findings ratify that human dignity is the foundation of all rights, including those of freedom, equality, justice and peace in the world, and must also guide the rights and duties of social regulation. Human dignity has changed from a criterion of power attributed to the social position of individuals to a value of the right to freedom, which now goes beyond the right of freedom and is the basis of modern constitutional democracy, which makes possible the realization of solidarity, as well as the duty and purpose of the state and the community. The will of the subject, of society, of the science and of the state, as well as the rules of domination and regulation, must have a limit on human dignity, and human dignity is not just fundamental right, in the sense of the Constitution, and must prevail over the exclusive will of science, the State and society. Therefore, in the making of power decisions and in realization of possible innovations of science involving human beings, human dignity demands the explicit consideration of respect and promotion of it. Conclusion: Human dignity is enshrined in Brazilian constitutional law, as well as in bioethics and in human rights, and it constitutes all the fundamental rights of the human person. It is not merely a rule of autonomy and liberty, and it is an obligatory and non-derogable precept in the making of power decisions, a true main foundation of constitutional democracies.  

scholarly journals Transgender Community in Pakistan: From Marginalized “aliens/others” to Empowered “Citizens”?

2020 ◽  
Vol 2 (2) ◽  
pp. 28-42
Author(s):  
Saad Ali Khan
Keyword(s):  
Supreme Court ◽  
The State ◽  
Fundamental Rights ◽  
The Past ◽  
State And Society ◽  
The Supreme Court ◽  
The Status

Almost a decade ago in 2009, a landmark decision of the Supreme Court of Pakistan set the trajectory for transgender community’s future. This was considered as the first step that ignited a new spirit among the transgender community in Pakistan; and they started actively pursuing the struggle for their fundamental rights. Transgender community in Pakistan has been marginalized since the inception of Pakistan. In Pakistan, transgender individuals have been pushed to the margins/peripheries of the society facing extreme levels of discrimination, rejection, stigmatization, violence and “otherness”. For years, both state and society have considered these individuals and their communities as “others”, “abnormal” or “threat to the structure of the society”. Faced with these conditions, the transgender community also passively withdrew from the mainstream and accepted this as their fate. This article is aimed to explore and analyze the transition in the status and condition of transgender community in the last decade (2009-2019). It is also aimed to highlight the role of transgender community and other actors in bringing about the change in their status. Reviewing the last decade of activism led by the transgender community and other actors; it is demonstrated in this article that the transgender community has gained momentous/historic achievements (especially legal) since then. From extreme marginalization and stigmatization: they have started to earn respected status in the society. While in the past they were considered as “outcastes” and “others” by the society and state alike, now, they are mostly considered as an integral part of the society especially by the state.

The Ajay Hasia Case: Society and the Fundamental Rights

2017 ◽  
pp. 1-12
Author(s):  
Akhileshwar Pathak
Keyword(s):  
Supreme Court ◽  
The State ◽  
Fundamental Rights ◽  
Judicial Interpretation ◽  
Admission Process ◽  
The Supreme Court ◽  
The Government ◽  
Definition Of ◽  
The Right

Ajay Hasia and few others failed to secure admission to Regional Engineering College, Srinagar. They challenged before the Supreme Court that the admission process was arbitrary and violative of the Fundamental Right of equality in Article 14 of the Constitution. The right, however, is available only against the ‘state’ as defined in Article 12. The definition of ‘state’ includes ‘other authorities.’ The term ‘other authorities’ has been subject to judicial interpretation and come to include instrumentality or agency of the government. The Ajay Hasia Case consolidated the developing law and formulated that not only the bodies created by an Act but also bodies created under a law, like societies under the Societies Registration Act can be ‘other authorities’.

The Right to Housing: Challenges Associated with the ‘Waiting List System’ Ekurhuleni Metropolitan Municipality V Various Occupiers, Eden Park Extension 5 2014 3 SA 23 (SCA)

2017 ◽  
Vol 30 (1) ◽  
pp. 112-121
Author(s):  
Shamier Ebrahim
Keyword(s):  
Supreme Court ◽  
Waiting Lists ◽  
The State ◽  
Waiting List ◽  
Allocation Process ◽  
The Supreme Court ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

The right to adequate housing is a constitutional imperative which is contained in section 26 of the Constitution. The state is tasked with the progressive realisation of this right. The allocation of housing has been plagued with challenges which impact negatively on the allocation process. This note analyses Ekurhuleni Metropolitan Municipality v Various Occupiers, Eden Park Extension 51 which dealt with a situation where one of the main reasons provided by the Supreme Court of Appeal for refusing the eviction order was because the appellants subjected the unlawful occupiers to defective waiting lists and failed to engage with the community regarding the compilation of the lists and the criteria used to identify beneficiaries. This case brings to the fore the importance of a coherent (reasonable) waiting list in eviction proceedings. This note further analyses the impact of the waiting list system in eviction proceedings and makes recommendations regarding what would constitute a coherent (reasonable) waiting list for the purpose of section 26(2) of the Constitution.

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