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.

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 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.   

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.

The Freedom of Trade and Commerce in the Indian Constitution: The Atiabari Case and after

1963 ◽  
Vol 21 (1) ◽  
pp. 54-84
Author(s):  
H. M. Seervai
Keyword(s):  
Supreme Court ◽  
The State ◽  
Indian Constitution ◽  
Supreme Court Of India ◽  
The Supreme Court

Now that the Supreme Court of India has reconsidered its earlier judgment in Atiabari Tea Co., Ltd. v. The State of Assam in Automobile Transport (Rajasthan), Ltd. v. State of Rajasthan it would not be inappropriate to attempt a brief critical and analytical account of the two judgments and of the problem of the freedom of trade, commerce and intercourse within the territory of India with which they deal. As will presently appear the task is not easy, first, because the drafting of the articles in Part XIII of the Constitution leaves much to be desired and, secondly, because the wide diversity of judicial opinion disclosed in the Atiabari and the Rajasthan cases does not make the task of the commentator any easier.

scholarly journals The first Mainland China monetary judgment enforced in NSW Australia - Bao v Qu; Tian (No 2)

2021 ◽  
Author(s):  
Jie Huang
Keyword(s):  
Supreme Court ◽  
New South ◽  
New South Wales ◽  
Mainland China ◽  
The State ◽  
South Wales ◽  
First Case ◽  
The Supreme Court

On 19 May 2020, the Supreme Court of New South Wales rendered the judgment in Bao v Qu; Tian (No 2) and decided to enforce a monetary judgment issued by the Qingdao Intermediate People’s Court of Shanghai Province, China. This is the first case at the state of NSW in Australia where a Chinese monetary judgment got enforced. This article seeks to discuss this case.

The Conflict Over Limestone Quarrying in Doon Valley, Dehradun, India

1985 ◽  
Vol 12 (2) ◽  
pp. 131-139 ◽  
Author(s):  
Jayanta Bandyopadhyay ◽  
Vandana Shiva
Keyword(s):  
Water Resources ◽  
Supreme Court ◽  
The State ◽  
North India ◽  
Annual Rainfall ◽  
Economic Activities ◽  
Doon Valley ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Limestone Quarrying

The Doon Valley, in the foothills of the Himalayas in the State of Uttar Pradesh in India, has become the centre of major public-interest litigation in the Supreme Court of India. The conflict is centred around the utilization of the rich limestone deposits located in the Mussoorie Hills in the northern part of the Valley. The Mussoorie Hills receive an annual rainfall of some 2,000 mm, which is the second highest in North India. There is a very good water resource in the Mussoorie Hills, which is obviously connected with the water-holding capacity of the limestone belt.For the operators of the limestone quarries, the best use of the high-grade limestone deposit lies in its physical extraction for commercial and industrial use. For the residents of the Valley, however, the best use of the limestone belt lies in its in situ functioning for the stabilization of soil and water resources. Damage to the stability of the hydrological balance of the Valley means damage to all other economic activities which, directly or indirectly, are dependent on the water resources in the Valley. These include agriculture, horticulture, tourism, animal husbandry, and knowledge-based industries etc. that together provide livelihood to the vast majority of the residents of the Valley.The paper analyses the ecological background of the conflict. It evaluates the negative externalities of limestone quarrying in Doon Valley that damages perennial economic activities such as agriculture and tourism. The official steps taken by the State Government to control the ecological damage from quarrying having proved inadequate, the residents of the Valley looked for justice and the right to survival from the Supreme Court of India.

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.

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.

PERSINGGUNGAN KEWENANGAN MENGADILI PENYALAHGUNAAN DISKRESI ANTARA PENGADILAN TUN DAN PENGADILAN TIPIKOR / INTERCEPTION OF JUSTICE AUTHORITY OF DISCRETION ABUSE BETWEEN ADMINISTRATION COURT AND CORRUPTION COURTS

2018 ◽  
Vol 7 (2) ◽  
pp. 213
Author(s):  
Budi Suhariyanto
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Administrative Law ◽  
The State ◽  
Government Officials ◽  
Criminal Process ◽  
The Supreme Court ◽  
State Finance ◽  
The Law ◽  
To Receive

Diskresi sebagai wewenang bebas, keberadaannya rentan akan disalahgunakan. Penyalahgunaan diskresi yang berimplikasi merugikan keuangan negara dapat dituntutkan pertanggungjawabannya secara hukum administrasi maupun hukum pidana. Mengingat selama ini peraturan perundang-undangan tentang pemberantasan tindak pidana korupsi tidak merumuskan secara rinci yang dimaksudkan unsur menyalahgunakan kewenangan maka para hakim menggunakan konsep penyalahgunaan wewenang dari hukum administrasi. Problema muncul saat diberlakukannya Undang-Undang Nomor 30 Tahun 2014 dimana telah memicu persinggungan dalam hal kewenangan mengadili penyalahgunaan wewenang (termasuk diskresi) antara Pengadilan Tata Usaha Negara dengan Pengadilan Tindak Pidana Korupsi. Pada perkembangannya, persinggungan kewenangan mengadili tersebut ditegaskan oleh Peraturan Mahkamah Agung Nomor 4 Tahun 2015 bahwa PTUN berwenang menerima, memeriksa, dan memutus permohonan penilaian ada atau tidak ada penyalahgunaan wewenang (termasuk diskresi) dalam Keputusan dan/atau Tindakan Pejabat Pemerintahan sebelum adanya proses pidana. Sehubungan tidak dijelaskan tentang definisi dan batasan proses pidana yang dimaksud, maka timbul penafsiran yang berbeda. Perlu diadakan kesepakatan bersama dan dituangkan dalam regulasi tentang tapal batas persinggungan yang jelas tanpa meniadakan kewenangan pengujian penyalahgunaan wewenang diskresi pada Pengadilan TUN.Discretion as free authority is vulnerable to being misused. The abuse of discretion implicating the state finance may be prosecuted by both administrative and criminal law. In view of the fact that the law on corruption eradication does not formulate in detail the intended element of authority abuse, the judges use the concept of authority abuse from administrative law. Problems arise when the enactment of Law No. 30 of 2014 triggered an interception in terms of justice/ adjudicate authority on authority abuse (including discretion) between the Administrative Court and Corruption Court. In its development, the interception of justice authority is affirmed by Regulation of the Supreme Court Number 4 of 2015 that the Administrative Court has the authority to receive, examine and decide upon the appeal there is or there is no misuse of authority in the Decision and / or Action of Government Officials prior to the criminal process. That is, shortly before the commencement of the criminal process then that's when the authority of PTUN decides to judge the misuse of authority over the case. In this context, Perma No. 4 of 2015 has imposed restrictions on the authority of the TUN Court in prosecuting the abuse of discretionary authority.

James Kraig Kahler v. State of Kansas: On Writ of Certiorari to the Supreme Court of the State of Kansas

2019 ◽  
Author(s):  
Steven J. Twist ◽  
Paul G. Cassell ◽  
Allyson N. Ho ◽  
Bradley Hubbard ◽  
John Ehrett
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Supreme Court
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