Unit 5 case studies

Social issues in India are in plenty and they need to be addressed

systematically to achieve social justice and economic justice to all the
citizens of India. The founding fathers of India were keen on addressing
the social issues of India by framing the constitution accordingly.

Gender Issues

The details of 3 major gender issues are given below.

Gender Gap

1. As per the report of Economic Survey 2017-18, there are 63 million

missing women in India.

2. Missing women are women who are not alive due to foeticide or
infanticide.

3. As per the World Economic Forum, India is ranked very low at 87th
position in the “Global Gender Parity Report.”

4. Indian Government launched the ‘Beti Bachao, Beti Padhao’ scheme

to address the problem of the gender gap.

5. The government has been carrying out information campaigns to

address the problems by bringing in behavioural change in society.

Triple Talaq

1. Many Muslim majority countries have banned triple talaq.

2. To bring equality and justice to women, the Government of India has

passed the Triple Talaq Bill, henceforth all declaration of talaq
including written and electronic form will be null and void.

Use the information given in the Triple Talaq Essay to substantiate your
answers in the Mains exam.
Sexual Harassment at Workplace

1. The government have passed the Sexual Harassment at Workplace

(Prevention, Prohibition, and Redressal) Act in 2013

2. It aims to protect the rights of women in any workplace in any

capacity.

Learn in detail about Sexual Harassment at the Workplace in the linked

article.

Poverty Report

1. As per the World Bank Brookings Institute report, as per May 2018,
there are only 73 million people in the poorest of the poor index.

2. As per the report, 44 people in India are taken out of poverty every
minute.

3. If the growth continues at the same pace, then 50 million people will
move out of poverty by 2022.

4. India is no longer the country with the highest poverty.

Read about Poverty-related topics from the links given below:

Causes of Poverty in India Poverty and Hunger Issues

Poverty Alleviation Programmes and Policies Poverty Estimation in India

Caste Related Issues

The details of caste-related issues are given below.

Lynchings

1. The majority of the lynchings carried out were due to bovine related
issues.

2. Most of the attacks are based on rumours.

3. This needs to be stopped to prevent harm caused to the social

harmony in society.

4. The Ministry of Electronics and IT is holding Whatsapp responsible

and has advised the platform to take measures to stop the
proliferation of fake messages.

Information and Broadcasting Advisory

1. Information and Broadcasting Ministry has issued an advisory that

the word ‘Dalit’ can no longer be used, this is as per the directive of
Bombay High Court and Madhya Pradesh High Courts. This is
because the word found no mention in the Constitution of India or
any statute.

2. There was another directive from the Social Justice and

Empowerment Ministry to use only the term ‘Scheduled Castes’.

Implications of Caste Census

1. The next caste census will take place in 2021, the problems
associated with it is that it will encourage caste-based politics rather
than concentrating on developmental activities. Also, there will be
strong sentiments for or against reservations.

Migration
This is also one of the major social issues in India. The details are given
below.

Changing Pattern of Migration

1. As per recent reports, the number of women migrating in India is

increasing at a faster pace than men. Marriage continues to play an
important role in the migration of women; however, now other
economic factors like employment, business, education is also playing
an important role in migration.

Know about Migration from India’s context in the linked article.

Plight of Migrants

1. There has been an increase in violence against migrants coming to a

state from different parts of the country.

2. Lack of job opportunities to the locals have led to growing

resentment against the migrants who are dubbed ‘outsiders’

Learn the challenges of migration that are mentioned in the linked article.

Health

A country’s sustainable progress is dependent on the availability of healthy

human resource. With a deteriorating environment and unhealthy lifestyle,
health is turning out to be one of the major social issues in India.

Impact of Air Pollution

1. As per India State-Level Disease Burden Initiative report, India faces

26% of the world’s premature deaths and disease burden due to air
pollution.

2. 1 in 8 deaths in India was attributed to air pollution, which makes it a

leading risk factor for death.

3. Poor air quality is responsible for heart ailments as well.

Campaign against Drugs

1. The drug menace is extremely severe in Punjab.

2. Punjab’s prisons are overcrowded with drug users and peddlers.

3. Punjab set up a Special Task Force to tackle the menace.

Substance Abuse in India

1. As per a recent report released by the Ministry of Social Justice and

Empowerment, India has 6 crore alcohol addicts

2. More than 3 crore Indians are using cannabis products.

3. 8.5 lakh people in India inject drugs.

Know the relevant facts about Drug Abuse in India from the linked article.

Most Important Supreme Court Judgements

Case Relevance

A.K. Gopalan Case SC contented that there was no violation of Fundamental

(1950) Rights enshrined in Articles 13, 19, 21 and 22 under the
provisions of the Preventive Detention Act, if the
detention was as per the procedure established by law.
Here, the SC took a narrow view of Article 21.

Shankari Prasad This case dealt with the amendability of Fundamental

Case (1951) Rights (the First Amendment’s validity was challenged).
The SC contended that the Parliament’s power to amend
under Article 368 also includes the power to amend the
Fundamental Rights guaranteed in Part III of the
Constitution.
Berubari Union case This case was regarding the Parliament’s power to
(1960) transfer the territory of Berubai to Pakistan.
The Supreme Court examined Article 3 in detail and held
that the Parliament cannot make laws under this article
in order to execute the Nehru-Noon agreement. Hence,
the 9th Amendment Act was passed to enforce the
agreement.

Golaknath case The questions in this case were whether amendment is a

(1967) law; and whether Fundamental Rights can be amended
or not. SC contented that Fundamental Rights are not
amenable to the Parliamentary restriction as stated in
Article 13, and that to amend the Fundamental rights a
new Constituent Assembly would be required. Also
stated that Article 368 gives the procedure to amend the
Constitution but does not confer on Parliament the
power to amend the Constitution.

Kesavananda This judgement defined the basic structure of the

Bharati case (1973) Constitution. The SC held that although no part of the
Constitution, including Fundamental Rights, was beyond
the Parliament’s amending power, the “basic structure of
the Constitution could not be abrogated even by a
constitutional amendment.” This is the basis in Indian
law in which the judiciary can strike down any
amendment passed by Parliament that is in conflict with
the basic structure of the Constitution.

Indira Nehru The SC applied the theory of basic structure and struck
Gandhi v. Raj down Clause(4) of article 329-A, which was inserted by
Narain case (1975) the 39th Amendment in 1975 on the grounds that it was
 beyond the Parliament’s amending power as it destroyed
the Constitution’s basic features.

Maneka Gandhi A main issue in this case was whether the right to go
case (1978) abroad is a part of the Right to Personal Liberty under
Article 21. The SC held that it is included in the Right to
Personal Liberty. The SC also ruled that the mere
existence of an enabling law was not enough to restrain
personal liberty. Such a law must also be “just, fair and
reasonable.”

Minerva Mills case This case again strengthens the Basic Structure doctrine.
(1980) The judgement struck down 2 changes made to the
Constitution by the 42nd Amendment Act 1976, declaring
them to be violative of the basic structure. The
judgement makes it clear that the Constitution, and not
the Parliament is supreme.

Waman Rao Case The SC again reiterated the Basic Structure doctrine. It
(1981) also drew a line of demarcation as April 24th, 1973 i.e.,
the date of the Kesavananda Bharati judgement, and
held that it should not be applied retrospectively to
reopen the validity of any amendment to the Constitution
which took place prior to that date.

Shah Bano Begum Milestone case for Muslim women’s fight for rights. The
case (1985) SC upheld the right to alimony for a Muslim woman and
said that the Code of Criminal Procedure, 1973 is
applicable to all citizens irrespective of their religion. This
set off a political controversy and the government of the
day overturned this judgement by passing the Muslim
 Women (Protection on Divorce Act), 1986, according to
which alimony need be given only during the iddat
period (in tune with the Muslim personal law).

MC Mehta and This case dealt with 3 issues: Scope of Article 32; rule of
Union Of India Absolute Liability or Rylands vs Fletcher to be followed;
(1986) issue of compensation. SC held that its power under
Article 32 is not restricted to preventive measures, but
also remedial measures when rights are violated. It also
held that in the case of industries engaged in hazardous
or inherently dangerous activities, Absolute Liability was
to be followed. Finally, it also said that the amount of
compensation must be correlated to the magnitude and
capacity of the industry so that it will be a deterrent.

Indra Sawhney and SC examined the scope and extent of Article 16(4),
Union of India which provides for the reservation of jobs in favour of
(1992) backward classes. It upheld the constitutional validity of
27% reservation for the OBCs with certain conditions
(like creamy layer exclusion, no reservation in promotion,
total reserved quota should not exceed 50%, etc.)

S. R. Bommai case In this judgement, the SC tried to curb the blatant

(1994) misuse of Article 356 (regarding the imposition of
President’s Rule on states).

Vishaka and State This case dealt with sexual harassment at the workplace.
of Rajasthan (1997) In the judgement, the SC gave a set of guidelines for
employers – as well as other responsible persons or
institutions – to immediately ensure the prevention of
sexual harassment. These are called ‘Vishaka Guidelines’.
 These were to be considered law until appropriate
legislation was enacted.

Samatha and State This judgement nullified all mining leases granted by the
of Andhra Pradesh Andhra Pradesh State government in the Scheduled
(1997) areas and asked it to stop all mining operations. It
declared that forest land, tribal land, and government
land in scheduled areas could not be leased to private
companies or non-tribal for industrial operations. Such
activity is only permissible to a government undertaking
and tribal people.

Lily Thomas v Union Here, the SC held that the second marriage of a Hindu
of India (2000) man without divorcing the first wife, even if the man had
converted to Islam, is void unless the first marriage had
been dissolved according to the Hindu Marriage Act.

I.R Coelho and This judgement held that if a law is included in the 9th
State of Tamil Nadu Schedule of the Indian Constitution, it can still be
2007 examined and confronted in court. The 9th Schedule of
the Indian Constitution contains a list of acts and laws
which cannot be challenged in a court of law. The
Waman Rao ruling ensured that acts and laws mentioned
in the IX schedule till 24 April 1973, shall not be changed
or challenged, but any attempt to amend or add more
acts to that schedule will suffer close inspection and
examination by the judiciary system.

Pedophilia case The SC restored the conviction and sentence of 6-year

(2011) (RI) rigorous imprisonment imposed on 2 UK nationals
who were acquitted by the Bombay High Court in a
 paedophilia case. The court said that “the sexual abuse
of children is one of the most heinous crimes.”

Aruna Shanbaug The SC ruled that individuals had a right to die with
Case (2011) dignity, allowing passive euthanasia with guidelines. The
need to reform India’s laws on euthanasia was triggered
by the tragic case of Aruna Shanbaug who lay in a
vegetative state (blind, paralysed and deaf) for 42 years.

NOTA judgement This judgement introduced the NOTA (None-Of-The-

(2013) Above) option for Indian voters.

Lily Thomas and The SC ruled that any MLA, MLC or MP who was found
Union Of India guilty of a crime and given a minimum of 2 year
(2013) imprisonment would cease to be a member of the House
with immediate effect.

Nirbhaya Case Introduction of the Criminal Law (Amendment) Act, 2013

(2014) and definition of rape under the Protection of Children
from Sexual Offences Act, 2012, the Indian Evidence Act,
1872, Indian Penal Code, 1860 and Code of Criminal
Procedures, 1973.

National Legal This case resulted in the recognition of transgender

Services Authority persons as a third gender. The SC also instructed the
and Union of India government to treat them as minorities and expand the
(2014) reservations in education, jobs, education, etc.

Triple Talaq The SC outlawed the backward practice of instant ‘triple

Judgement (2016) talaq’, which permitted Muslim men to unilaterally end
 their marriages by uttering the word “talaq” three times
without making any provision for maintenance or
alimony. Read about the Triple Talaq Bill, 2019.

Right To Privacy The SC declared the right to privacy as a Fundamental

(2017) Right protected under the Indian Constitution.

Repealing Section The SC ruled that Section 377 was unconstitutional “in so
377 (2018) far as it criminalises consensual sexual conduct between
adults of the same sex.”

L Chandra Kumar The SC ruled that the power of judicial review vested in
Case (1997) the Supreme Court and High Courts by Articles 32 (Right
to Constitutional Remedies) and 226 respectively is a
part of the basic structure of the Constitution.

Puttuswamy Case This SC judgement protects individual rights against the

(2017) invasion of one’s privacy.

Habeas Corpus Case A much-criticised judgement of the SC, in which the

(1976) majority ruling went against individual freedom and
seemed to favour the state. Justice Khanna’s dissent is
also well-known.

Romesh Thapar Here, the SC held that the freedom of speech and
Case (1950) expression includes freedom of propagation of ideas that
can only be ensured by circulation.

Q1
What are the landmark Judgements?

Landmark judgements are those that set a precedent in law, or determine

a major new legal principle or judicial concept or affects the interpretation
of the existing law in a significant manner.

Q2

Is the Supreme Court decision final in India?

The SC is the highest judicial court in India and the final court of appeal
under the Constitution of India, and the highest constitutional court, with
the power of judicial review. A binding decision of the SC can be reviewed
in a Review Petition. The parties aggrieved on any order of the Court on
any apparent error can file a review petition. Taking into account the
principle of stare decisis, the SC does not generally unsettle a decision, in
the absence of a strong case.

Q3

Is the Supreme Court more powerful than Parliament?

The SC has to work on the basis of laws made by the Parliament. But, the
SC can also annul a law framed by the Parliament if the law violates the
Constitution. The Parliament can amend the Constitution also but again,
that is subject to the Basic Structure doctrine.

Q4.What is Social Jurisprudence?

Social Jurisprudence most commonly known as Sociological Jurisprudence

was first propounded by Roscoe Pound during the year 1911 in an article.
He was a prolific writer and dean of the Harvard Law School. The American
Realist School is the brainchild of the Roscoe Pound. This philosophical
approach of this Jurisprudence was to examine the social effect of legal
institutions, doctrines, and postulates. The principle examines the social
aspect of Law and checks its sociological effect on substantive and
procedural law. He stressed the practical aspect of the law and propounded
that the function of law is to satisfy the maximum number of people and
resolve the conflict of the individuals in society.

This movement of sociological jurisprudence emerged in the era of

progressive development where the pound termed it as “ a movement for
pragmatism as a philosophy of law ” where the purpose of which was to
provide legal reforms and social change. The formal jurisprudence used the
logic of specific assumed principles of precedence, but the social
jurisprudence advocated the use of social sciences to develop legal rules
and argued for providing the freedom to the Judges to do justice in the
specific cases.

The emergence of Social Jurisprudence : United States of America vis-a-vis

India

The emergence of social jurisprudence traces back to the United States of

America when the US was struggling in the civil war and the rights of the
labourers were being infringed by the State. This problem existed till the
twentieth century where the law was hostile towards protecting the
labours, where the Judges construed it narrowly or held it unconstitutional.
The advocates of the Social jurisprudence discarded the judicial response
to the social legislations. Pound propounded the theory of social
engineering where the judiciary, legislature, and the parliament have to
come ahead and make a balance between the public, private, and social
interests. In the United States of America the subsistence rights like the
right to unpolluted air, right to food, right to minimal economic security
come under such kind of right. Neither the Constitution of US nor the
Universal Declaration of Human Rights has envisaged such kinds of rights.
Such kinds of rights are like freedom which are inherent in the citizens.

In India, the Constitution under Article 51A, in the Directive Principle of

State Policy the state has been provided the obligation of providing social,
economic, and political justice to its Citizens. The Emergence of Social
jurisprudence traces back to the time of emergency when the civil rights of
the social activists and the journalists were imprisoned and subjected to
police brutality. Post emergency, the judges took a note on the issue and
propounded the concept of PIL. The PIL opened a broad path of Judicial
activism for the unprivileged class people who can’t afford Justice,
using Article 32 of the Constitution of India. Later the Supreme court of
India started recognising the broad scope of rights under Part III of the
Constitution. Human rights comprise “traditional liberties” and “subsistence
rights”. The traditional liberties arise of protests against the suppressive
political institutions whereas the subsistence rights arise during protests
against the social and economic institutions. The Supreme Court in Minerva
Mills vs Union of India recognised the principle of harmony and balance
between the fundamental rights and the directive principles of state policy
and held it as a basic feature of the Constitution. In case of a political
threat to the fundamental rights, the Apex Court has upheld such rights.
On the other hand, when the subsistence rights are subject to the threat
by the social and economic institutions the Supreme Court has to come
ahead for the protection of such kinds of rights. The consciousness of the
Judiciary demands higher attention while the subsistence rights are
infringed rather than the traditional liberties.

India’s Supreme Court is making landmark judgements in social

change

In the last few years, public interest litigation at India’s Supreme Court has
brought significant wins for human rights—but success is best assured
when litigation is linked to broader mobilization.

While it may seem like the Indian Supreme Court is single-handedly

protecting fundamental rights in India, this would be an unfair conclusion.
Although the Court has passed these landmark, progressive judgments, on
other equally important challenges it has disappointed advocates and
strategic litigation has not been successful. The Aadhaar project of the
government mandates every resident in India to obtain a unique ID
number and involves the sharing of biometric and personal data, making
the Aadhaar number mandatory for provision of welfare and benefits.
Several civil society groups challenged the project, but the Supreme Court
in a majority decision upheld it and refused to recognize it as a violation of
the constitutional right to privacy. There are many reasons why this
litigation did not succeed. One of the reasons for its failure is that the
strategic litigation did not bring together different civil society movements
to fight the project. The movement against Aadhaar was a small section of
the diverse and vibrant human rights movement in India.

Clearly, there are lessons to learn for future litigation to protect

fundamental rights in India. There can be no denying, however, that public
interest litigation in India has seen a new lease of life in the last few years.
Its impact will increase even more in the years to come, if we learn well
from past experiences—of both success and failure.

Alternative Dispute Resolution

Primary tabs

Definition

Alternative dispute resolution (“ADR”) refers to any method of resolving

disputes without litigation. ADR regroups all processes and techniques of
conflict resolution that occur outside of any governmental authority. The
most famous ADR methods are the
following: mediation, arbitration, conciliation, negotiation, and transaction.
All ADR methods have common characteristics – i.e., enabling the parties
to find admissible solutions to their conflicts outside of traditional legal /
court proceedings, but are governed by different rules. For instance, in
negotiation there is no third party who intervenes to help the parties reach
an agreement, unlike in mediation and conciliation, where the purpose of
the third party is to promote an amicable agreement between the parties.
In arbitration, the third party (an arbitrator or several arbitrators) will play
an important role as it will render an arbitration award that will be binding
on the parties. In comparison, in conciliation and mediation, the third party
does not impose any binding decision.

If all the ADR methods are different, they should not be compared and
confronted because in practice, the parties combine the use of these
different ADRs. For instance, the parties may stipulate in their contracts
that in the event of a dispute they will first submit to an attempt at
amicable settlement (conciliation/mediation) and only in the event of
failure will they resort to a judicial method of settlement, which may be
arbitration or recourse to the State justice system. ADRs therefore come
into play at different levels and have a complementary character.

The main advantages of ADR are rapidity, confidentiality and flexibility.

Public courts may be asked to review the validity of ADR methods, but they
will rarely overturn ADR decisions and awards if the disputing parties
formed a valid contract to abide by them.

Overview

Alternative Dispute Resolution ("ADR") refers to any means of settling

disputes outside of the courtroom. ADR typically includes early neutral
evaluation, negotiation, conciliation, mediation, and arbitration. As
burgeoning court queues, rising costs of litigation, and time delays
continue to plague litigants, more states have begun experimenting with
ADR programs. Some of these programs are voluntary; others are
mandatory.

 Negotiation

Negotiation is the preeminent mode of dispute resolution. While the two

most known forms of ADR are arbitration and mediation, negotiation is
almost always attempted first to resolve a dispute. Negotiation allows the
parties to meet in order to settle a dispute. The main advantage of this
form of dispute settlement is that it allows the parties themselves to
control the process and the solution. Negotiation is much less formal than
other types of ADRs and allows for a lot of flexibility.

 Mediation

Mediation is also an informal alternative to litigation. Mediators are

individuals trained in negotiations, who bring opposing parties together and
attempt to work out a settlement or agreement that both parties accept or
reject. Mediation is not binding. Mediation is used for a wide gamut of
case-types ranging from juvenile felonies to federal government
negotiations with Native American Indian tribes. Mediation has also
become a significant method for resolving disputes between investors and
their stock brokers. See Securities Dispute Resolution.

 Arbitration

Arbitration is one of the most emblematic and growing forms of ADR.

Arbitration is more formal than mediation and has a lot of similarities with
traditional court proceedings, involving limited discovery and
simplified rules of evidence (ex. hearsay is usually admissible in
arbitration).

Different types of arbitration exist:

  national arbitration: for example American arbitration, French
arbitration or German arbitration which are all governed by different
rules enacted by the institutions of each country;

 international commercial arbitration: usually used to settle disputes

that arise from commercial contractual relations between buyers and
sellers who are in two different states;

 investor-State arbitration: unilateral referral by private individual

investors to an arbitral tribunal against a host State of their
investment.

Other types of arbitration and areas of specialization for this ADR exist,
such as construction arbitration, post M&A arbitration, etc.

Arbitration relies on the consent of the parties, therefore the arbitration

agreement is emblematic because it is the gateway to the particular system
that is arbitration. Prior to the dispute occurring, parties usually enter into
a binding arbitration agreement or any other form of agreement with an
arbitration clause, that allows them to lay out major terms for the
arbitration process (number of arbitrators, arbitration forum; arbitration
rules; fees etc.).

If parties still have disputes about certain terms before entering into an
arbitration they can petition to a court to resolve a dispute. Arbitration can
be held ad hoc or with the administrative support from one of the
institutional providers like American Arbitration Association (AAA) or JAMS
when the arbitration is national.

The arbitration is headed and decided by an arbitral panel or a single

arbitrator, depending on the agreement of the parties. Arbitrators do not
have to be lawyers, parties can select arbitrators from other fields that they
consider more suitable for the resolution of the dispute, which usually
occurs when the arbitration deals with a very specialized topic such as
construction or pharmaceutical issues. Indeed, parties can for example
choose an arbitrator with an engineering background to arbitrate a
construction dispute.

To comprise a panel, either both sides agree on one arbitrator, or each

side selects one arbitrator and the two arbitrators elect the third.
Arbitration hearings usually last between a few days to a week, and the
panel only meets for a few hours per day. The panel or a single arbitrator
then deliberates and issues a written binding decision or arbitral award.
Opinions are not public record. Arbitration has long been used in labor,
construction, and securities regulation, but is now gaining popularity in
other business disputes.