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 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.   

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 JUDICIAL REVIEW: A STUDY IN REFERENCE TO CONTEMPORARY JUDICIAL SYSTEM IN INDIA

2016 ◽  
Vol 4 (5) ◽  
pp. 51-55
Author(s):  
Rahul Tripathi
Keyword(s):  
Supreme Court ◽  
Decision Maker ◽  
Judicial Review ◽  
State Legislatures ◽  
The State ◽  
Judicial System ◽  
The Supreme Court

Judicial review is the process by which the Courts determine whether or not an administrative decision-maker has acted within the power conferred upon him or her by Parliament. That places the question of statutory construction at the heart of the enquiry. The Supreme Court enjoys a position which entrusts it with the power of reviewing the legislative enactments both of Parliament and the State Legislatures. This grants the court a powerful instrument of judicial review under the constitution. Research reveals that the Supreme Court has taken in hand the task of rewriting the Constitution, which is an important aspect in present scenario.

Canons of Evasion in Constitutional Criminal Law

2017 ◽  
Author(s):  
Sharon Dolovich
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Judicial Review ◽  
The State ◽  
The Other ◽  
State Action ◽  
The Supreme Court ◽  
The Face ◽  
The One ◽  
The Right

In this chapter, Sharon Dolovich argues that the Supreme Court deploys three “canons of evasion” that undermine core constitutional principles: deference, presumption, and question substitution. The chapter shows how the Court on the one hand affirms basic constitutional principles—such as the right to counsel or the right against cruel and unusual punishment—that courts are to enforce against the state for the protection of individual penal subjects. Yet on the other hand, the doctrinal maneuvers of deference, presumption, and substitute question encourage judges in individual cases to affirm the constitutionality of state action even in the face of seemingly egregious facts. As a result, judicial review delivers almost automatic and uncritical validation of whatever state action produced the challenged conviction, sentence, or punishment. Dolovich identifies troubling questions raised by pervasive use of these canons for the legitimacy of the state’s penal power.

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.

scholarly journals Prosecuting The House of God: The Irony of Rights to Freedom of Worship for Dhimmi Minority in Indonesia

2019 ◽  
Vol 16 (1) ◽  
pp. 1-20
Author(s):  
Yusuf Hanafi ◽  
M. Alifudin Ikhsan
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Judicial Review ◽  
Islamic Law ◽  
The State ◽  
Religious Violence ◽  
Social Awareness ◽  
Equal Rights ◽  
The Supreme Court ◽  
Sense Of Justice

The freedom to embrace a religion and belief and worshiping are the rights of each citizen protected by the constitution, including the Dhimmi minority, as the state authorities have issued a Joint Regulation Number 8 and 9 of 2006 on the Guideline of Empowering the Forum of Religious Harmony and Constructing Worship House. Ironically, instead of giving the sense of justice for all society elements, regulations are deemed to limit the activity of worshiping of dhimmi minority. In realizing the equal rights to worship and constructing the house of worship for the Dhimmi minority, the Regulation should be submitted to the Supreme Court to undergo juridical review. The suggestions utilized to review several articles are considered as discriminating us the society's actualization on the government’s product of law. This piece of writing explored the problems of constructing the house of worshiping the context of the rights to worship for dhimmi minority through the Quran's perspective. The conception of the Qur'an generated is reflected in the idea of the jurisprudence of human rights, which strives for establishing the equality of rights to worship for citizens. The jurisprudence of human rights is expected to raise social awareness to appreciate and respect the worshiping activities of dhimmi minority, reducing the retention of inter-religious violence, and creating a harmonious life based on the principles of Islamic law in Maqasid al-Syariah.Kebebasan memeluk agama dan keyakinan serta menjalankan peribadatannya merupakan hak asasi setiap warga negara yang dilindungi oleh konstitusi, termasuk bagi minoritas dhimmi. Pemerintah sebagai pemegang kekuasaan negara telah mengeluarkan Peraturan Bersama Menteri Agama dan Menteri Dalam Negeri Nomor 8 dan 9 Tahun 2006 tentang Pedoman Pemberdayaan Forum Kerukunan Umat Beragama dan Pendirian Rumah Ibadah. Ironisnya, Peraturan yang sejatinya memberi rasa keadilan bagi seluruh elemen masyarakat, justru terkesan membatasi aktivitas peribadatan minoritas dhimmi. Untuk mewujudkan kesamaan hak beribadah dan mendirikan rumah ibadah bagi minoritas dhimmi, Peraturan tersebut perlu diajukan ke meja Mahkamah Agung guna menjalani judicial review. Usulan untuk meninjau kembali beberapa pasal yang dianggap diskriminasi tersebut merupakan wujud pengawasan masyarakat terhadap produk hukum Pemerintah. Tulisan ini mengkaji problematika pendirian rumah ibadah dalam konteks hak beribadah minoritas dhimmi melalui perspektif Alquran. Konsepsi Alquran yang dihasilkan dituangkan dalam gagasan fikih HAM yang berupaya untuk membangun kesetaraan hak beribadah bagi warga negara. Fikih HAM diharapkan mampu membentuk kesadaran masyarakat untuk menghargai dan menghormati aktivitas peribadatan minoritas dhimmi, mengurangi retensi kekerasan antar umat beragama, dan menciptakan kehidupan yang harmonis berdasarkan prinsip-prinsip syariat Islam dalam Maqasid al-Syariah.

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.

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