More on this book
Kindle Notes & Highlights
Any laws inserted (through constitutional amendments) into the Ninth Schedule could not be challenged for being inconsistent with fundamental rights.
Zamindars then challenged the amendment itself in Shankari Prasad v. Union of India (Shankari Prasad).15 One of the several grounds of challenge was that the expression ‘law’ under Article 13(2), which prohibits the Parliament from making any laws that abridge or take away fundamental rights, included not only ordinary laws, but also
The net effect of the Supreme Court’s decision in Shankari Prasad was that amendments to the Constitution could not be reviewed by courts.
By a slender majority of 6:5, the Supreme Court ruled that the distinction between constituent power and legislative power laid down in Shankari Prasad was unfounded. In other words, constitutional amendments fell within the purview of ‘law’ under Article 13(2) and courts could review them if they violated the fundamental rights of citizens.
Eventually, the Parliament sought to reconcile the question of whether constitutional amendments were ‘law’ under Article 13 by passing the Constitution (Twenty-fourth Amendment) Act, 1971 and inserting Article 13(4) to expressly exclude constitutional amendments from the ambit of Article 13. Through this amendment, the Parliament nullified the Supreme Court’s decision in Golak Nath and ensured that amendments to the Constitution could once again not be reviewed by courts even if they violated the fundamental rights of citizens.
court empowered itself to judge the constitutionality of amendments and revoke any that compromised the essential features of the Constitution.
If the Parliament had an unfettered right to amend the Constitution, the Supreme Court had a coextensive power to review and invalidate any amendment that destroyed its basic structure.
where the will of the people’s elected representatives does not represent the will of
Supreme Court pre-empted such a scenario and ensured that the people’s representatives—meant to be servants of the Constitution—would not become its masters.
finding certain parts of the Constitution to be basic, indestructible and immune, even from constitutional amendments, the Supreme Court held that certain parts of the Constitution bound successive parliaments in India in perpetuity. Yet,
Supreme Court rightly chose uncertain democracy over certain tyranny.
Yet, if one had to choose between the legislature and the judiciary as the custodian of the Constitution, it would likely be the latter.
Several Muslims were upset that five non-Muslim judges, with backgrounds in secular law, took it upon themselves to interpret sections of the Quran—a challenge even to scholars of Muslim law.24 Muslim
is hardly surprising that many believe that the enactment of the MWA was the initial fuel for the demolition of the Babri Masjid and the communal violence that flared up as a result.39
Feminism will languish low in the priority list of governments when it is pitted against a large vote share.
first generation rights were fundamental rights which could be enforced by courts of law; on the other hand, several second generation rights1 were encompassed as non-binding aspirations in the nature of directive principles of state policy.
The Municipal Commissioner of Bombay went ahead and ordered the removal of these ‘encroachments’ under Sections 312–14 of
For the first time in its history of thirty-five years, the Supreme Court affirmed that the right to life includes the (second generation) right to livelihood. It
This is one of the reasons why the Supreme Court has been described as ‘pro human rights but anti-poor’30 in recent times.
exceptional cases, the Supreme Court has the power to review its own judgements, under Article 137 of the Constitution.)
five-judge bench of the Supreme Court increased the threshold of tortious liability when it held that an enterprise engaging in any harmful or inherently dangerous activity had an absolute and ‘non-delegable’ duty to ensure that no one was harmed, and if anyone was harmed, they were to be compensated.38 In asserting this duty, the Supreme Court did not accept the exceptions which had evolved in English jurisprudence.
The proposed framework of nuclear liability law has created a dangerous cocktail for another Bhopal. It reinforces the fact that justice in India is still administered reactively, not proactively.
Although Article 14 of the Constitution gives to all people the right to equality before the law, Article 16(4) allows the state to make ‘any provision for the reservation of appointments or posts’ in favour of backward classes not represented adequately in services under the state.
Articles 341 and 342 lay down the procedure to ascertain which castes and tribes should be considered as SCs and STs, respectively.
The Constitution’s provisions on reservation have been criticized as pro-Hindu, since the reservation policy was primarily aimed at abolishing the Hindu caste system.13 Muslims have been sceptical of these constitutional principles because significant segments of disadvantaged Muslims have been unable to avail of the benefits of affirmative action in India.
Some colleges in Madras implemented detailed quota-based reservations, but the Supreme Court struck them down, explaining that the reservations, which were based on race, religion and caste, were opposed to Article 29(2) of the Constitution, which embodies a fundamental right which states that no citizen shall be denied admission into any educational institution maintained by the state or receiving aid out of state funds only on grounds of religion, race, caste, language or any of them.14 In reaction, the Parliament amended Article 1515 of the Constitution to allow the state to make special
...more
also said that while caste was an important criterion to ascertain social backwardness, it could not be the sole criterion, since religions other than Hinduism do not recognize caste-based distinctions.
Thus, by the late 1980s, there was rampant confusion and uncertainty regarding the constitutional boundaries of India’s reservation policy. Would reservations above 50 per cent be considered unconstitutional? Would caste be the only criterion to determine the backwardness of communities? Could state governments take economic indicators into account while listing backward classes?
Since there already was a 22.5 per cent reservation for SC/ ST candidates, introducing 52 per cent reservations for OBCs (in line with their population) would contravene the Supreme Court’s decision in Balaji and other cases. So, the commission decided to provide for a 27 per cent reservation
However, in 1990, Prime Minister V.P. Singh decided that his government would implement the Mandal Commission recommendations after ten years of dormancy. This announcement provoked unprecedented violence, protests and rioting, particularly in northern India.
Among the backward classes, preference would be given to the poorer sections. If, after giving first preference to poorer sections, there were still vacancies, these could be filled by the others within the backward classes. However, OBCs recruited on the basis of merit would not be adjusted against the 27 per cent quota. Finally, 10 per cent of the vacancies would be reserved for other economically backward sections uncovered by existing schemes of reservations.32
the case of non-Hindus, the extent of backwardness of a community would be assessed on the basis of non-caste factors, such as income level and education.
The court then found that the 10 per cent quota for economically backward persons (otherwise not entitled to avail of reservation) was unconstitutional.
The court also disallowed the Mandal Commission’s finding that reservations should also apply to promotions, thus restricting its ambit to the appointment stage.
The court also said, rightly, with regard to some technical positions (for instance, in the case of pilots, scientists and nuclear technicians), by virtue of the nature of work, appointment should only be based on merit.
Within three years of the Indra Sawhney judgement, the Parliament inserted Article 16(4A)42 into the Constitution, permitting reservations for SCs and STs to extend to promotions.
Supreme Court’s judicial creativity, since granting compensation is not an express part of the relevant provisions of the Constitution.
did away with the cloak of ‘sovereign immunity’ previously enjoyed by public officials as a defence against acts of negligence. A police officer too has benefited from the enforceable right to
The Parliament is barred from discussing the conduct of judges except in the case of an impeachment motion.5
Article 124 of the Constitution says that every judge of the Supreme Court should be appointed by the President9 after consulting the Chief Justice of India (CJI) and other judges of the Supreme Court and high courts. As for the judges of the twenty-one high courts in India, Article 217 says that every high court judge should be appointed by the President after consulting with the CJI, the governor of the relevant state and the chief justice of that high court. The President is empowered to transfer a judge from one high court to another after consulting with the CJI.
In the early years of Indian democracy, judicial appointments were made according to plan.13 As a healthy practice, the opinions of the CJI and the chief justice of the appropriate high court were considered as most relevant in making appointments. This changed drastically under the Indira Gandhi-led Congress government of the 1970s, the decade that witnessed sharp conflicts between the political class and the judiciary.
And yet, while it secured primacy for the judiciary, the Supreme Court also sought to moderate its powers through the collegiate system. For appointments to the Supreme Court and high courts, the CJI was to decide after ascertaining the opinion of at least two of the most senior judges of the Supreme Court (‘collegium’ in the Supreme Court). For appointments of high court judges (where the chief justice of the relevant high court is also consulted), the chief justice of the high court was to decide after ascertaining the views of at least two of the most-senior judges of that high court (the
...more
The Second Judges Case achieved the following in the area of judicial appointments: first, it overturned the decision in the First Judges Case and gave the last word on appointments to the judiciary; and second, it decentralized the power conferred upon the CJI/chief justice of the relevant high court by granting this power to a plurality of judges—the collegium.
While elected representatives are answerable to the people in periodic elections, judicial officers are nominated (not elected) and, once nominated, continue to rise through the hierarchy without being directly accountable to the people in any way. Yet,
The Constitution of India does not have a precise stand on the value of international treaties that have been signed or ratified by the government, but not implemented via legislation.
International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions [the fundamental rights] to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee’.4 Since
recognizing that physical contact was not a prerequisite of sexual harassment, given its broad definition in Vishaka.
Many argue that the Supreme Court encroached on the legislature’s jurisdiction in Vishaka. What the court essentially did was frame a set of guidelines that would operate until laws were made, since neither the legislature nor the executive exercised its constitutional duty to do so. Interestingly, a two-judge bench of the Supreme Court was diametrically opposed on whether judges can play parliamentarians in
Justice Markandey Katju opined that there were ‘hundreds of pressing social needs’, but it was not within the court’s domain to address them just because there were no laws related to them. He also made some striking observations on the Supreme Court’s role in Vishaka:
Euthanasia is a complex ethical issue on which everyone has an opinion: from a child in Class 6 to a media baron of sixty.
