Judicial system in India

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July 13, 2022

This article is written by Gautam Badlani, a student of Chanakya National Law University, Patna. This article analyses the Judicial System in India and the hierarchy of courts. Furthermore, it also examines the provisions which safeguard the independence of judiciary and the hurdles that the judiciary faces in contemporary times.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

In India, the three branches of the Government are the legislature, the executive and the judiciary. India’s Constitution envisages a division of powers and a system of checks and balances. The judiciary plays a critical role in ensuring that the legislature and the executive do not exceed their Constitutional boundaries and prevents them from the arbitrary exercise of powers. The Constitution of India ensures that the judiciary remains independent of the influence of the legislature and the executive.

This article analyzes the hierarchy of courts in India and the jurisdiction, powers and functions of the different courts. The article also highlights the various hurdles that are presently faced by the judicial system.

History of Judicial System in India

In ancient India, the lowest court was the family court starting from the family arbitrator and the judge at the highest pedestal was the king. One of the primary duties of the sovereign was the dispensation of justice, and in this process, the King was aided by his counsellors and ministers. As the civilization advanced and the duties of the King were delegated to the judges who had knowledge of the Vedas. Justice was administered on the basis of ‘dharma’ or a structure of rules specifying the responsibilities that an individual must fulfil in his life. Customs served as a source of law. This system continued till the Mughal period.

During the Mughal period, the office of Qazi was responsible for the dispensation of justice. Every provincial capital and every large town had a Qazi. The Qazis held the trial in the presence of the parties and were expected to write their legal documents very carefully. The King was the highest court of appeal. This system of justice was replaced by the British.

The British introduced the common law system in India and established the Sadar Diwani Adalat. They were later followed by the establishment of high courts. The first high court was established at Calcutta in 1862. The high courts were also established in Madras and Bombay. Subsequently, the federal court was established by the Government of India Act, 1935 which had a wider jurisdiction than the high courts. Thus, the present judicial system of India is based largely on the common law system.

Functions of the Indian Judiciary

Upholding and interpreting the Constitution: The judiciary is responsible for protecting and upholding the Constitution and its ideals. The courts interpret the Constitution and strike down any law, ordinance, rule, or regulation which violates or infringes the Constitutional provisions.
Resolving inter-state disputes: The Constitution of India lays down a federal structure of governance. Thus, disputes between the states and the Union and the States are inevitable. The judiciary, particularly the Supreme Court, plays a key role in resolving such disputes.
Protection of Fundamental Rights: Part III of the Constitution confers certain fundamental rights on citizens as well as non-citizens and legal as well as natural persons. The judiciary ensures that these fundamental rights are not violated. If any act of the legislature or the executive abridges these rights, then the Constitutional courts have the power to issue writs.
Assistance in law-making: In several cases, the courts lay down guidelines which are later incorporated in the statutes by the legislature. The courts often make suggestions to the legislature to draft a new law or to modify or amend existing law in order to meet the problems of contemporary society. The judiciary also provides an advisory opinion to the President and resolves any doubts relating to the Constitutional provisions.

Hierarchy of courts in India

The judicial system in India is hierarchical in nature. There are primarily four layers of hierarchy:

The Supreme Court of India,
The high court of various states,
The subordinate courts,
Tribunals,
Nyay Panchayats,
Lok Adalat.

Pictorial representation of the hierarchy of Indian courts

Image source: Indian Judiciary – Supreme Court, High Court, District & Subordinate Courts – Indian Polity Notes

The Supreme Court

India has a federal structure of governance and the Supreme Court of India is the federal court. Articles 124 to 147 of the Constitution (Part V) deal with the functions, powers and jurisdiction of the Apex Court.

Historical perspective

The Regulating Act of 1773 established the Supreme Court of judicature at Calcutta. Similar courts were established at Madras and Bombay in 1800 and 1823 respectively.

The Supreme Court of India is based on the Federal Court of India which was established by virtue of the Government of India Act, 1935. However, it differs from the Federal Court in the sense that appeals from the Federal Court could be made to the Privy Council, whereas the Supreme Court of India is the highest court of appeal and no appeal can be made against its order before any other court.

The Supreme Court has been conferred with the jurisdiction as well as powers of both the Federal Court as well as Privy Council. The court started functioning on 28th January, 1950.

Appointment of Judges of the Supreme Court

Article 124(2) of the Constitution lays down the procedure for the appointment of the judges of the Supreme Court. The judges of the Supreme Court are appointed by the President of India in consultation with the Chief Justice of India. The President may consult such judges of the Supreme Court and the high courts as he considers necessary. The Law Minister also advises the President in the matters of appointment of Supreme Court Judges.

In Supreme Court of India (In Re: Appointment & Transfer of Judges v. Civil Advisory Jurisdiction) (1998), the court held that while the President has the power to appoint the judges of the Apex Court, the opinion of the Chief Justice of India will have primary importance in such appointments. The Court held that a collegium consisting of the Chief Justice of India and four more senior-most judges would recommend names to the President and such recommendations would be appointed by the President as judges. The Court observed that the collegium would make recommendations after considering the view of the Supreme Court justices and other judges of the high courts and the members of the Bar. Thus, the collegium would make the most appropriate recommendations to the President. The collegium would make the recommendations to the President in writing.

Jurisdiction of the Supreme Court

The Supreme Court has original, appellate as well as advisory jurisdiction.

Original Jurisdiction: Article 131 provides the original jurisdiction of the Supreme Court. The original jurisdiction of the court extends to the disputes between the Union and the States and disputes between two or more States.

The original jurisdiction of the Indian Supreme Court is not as wide as the American Supreme Court. The American Supreme Court has original jurisdiction in matters concerning ambassadors and ministers. The original jurisdiction of the Indian Supreme Court, on the other hand, extends to only legal and not private persons. The only instance where a private person can directly approach the Apex Court is for enforcing any of the fundamental rights of the individual.

In the landmark case of State of Karnataka v. Union of India (1977), the Notification of the Central Government established the Commission of Inquiry to inquire into charges of corruption against the Chief Minister of Karnataka and it was challenged by the State Government under Article 131. The Court had to determine whether the said notification could be challenged under Article 131. The Central Government contended that since no legal rights of the State were affected, the petition was not maintainable. The Court held that where the Members of Parliament and the members of State Legislature differently interpret any provision of the Constitution, the dispute can be raised before the Court under Article 131.

Appellate Jurisdiction: The Supreme Court has very wide appellate jurisdiction. Appeals can be made before the Apex Court where the matter involves a substantial question of law. Such matters may be referred either by the sanction of the high court or under a Special Leave Petition [Article 136(1)].

The Constitutional Bench of the Supreme Court, in the case of Sir Chunilal V. Mehta and sons Ltd. v. Century Spinning and Manufacturing Co. (1962), laid down what would constitute a substantial question of law. The court held that if the question is regarded to be of public importance or is deemed to affect the parties’ rights in a substantial manner and if neither the question nor the principles to be applied for its determination have been settled finally by the court, then it would be considered to be a substantial question of law.

Article 132(1) empowers the Supreme Court to allow appeals against any judgment, order or decree from the high court if the matter is certified to involve a substantial question of law by the high court under Article 134A.

Similarly, in criminal cases, an appeal can be made before the Apex Court with the prior certification of the high court or where the accused is sentenced to death by the high court in the reversal of his acquittal or where the high court sentences a person to death after withdrawing the case from a subordinate court.

In civil cases, appeals can be made before the Apex Court under Article 133(1) subsequent to the high court’s sanction.

Advisory Jurisdiction: The Supreme Court is also empowered to give its advisory opinion on any matter referred by the President under Article 143(1). The President can seek the advisory opinion on any question of law or of public importance or where the matter is concerned with any treaty or agreement relating to pre-constitutional times.

The advisory opinion of the court is not binding on the government. In the case of In Re: The Special Courts Bill (1978), a private member Bill was introduced in the Parliament for setting up Special Courts for the purpose of deciding cases involving offences committed by public officers during emergencies. The President sought the opinion of the court regarding the constitutionality of the Bill. The court held that the Parliament was empowered to establish such courts. However, the court held that the opinion was not binding on the parties. The opinion of the court has significant judicial importance and will not bind the parties.

Review Jurisdiction: Under Article 137, the Supreme Court is empowered to review any of its previous judgments.

It is pertinent to note that Article 262 empowers the Parliament to confer or deprive, by law, the Apex Court of the jurisdiction in respect of matters relating to control, operation or distribution of inter-state river waters. The jurisdiction of the Supreme Court can be extended by the Parliament by virtue of Article 138.

Functions of the Supreme Court

The Supreme Court has the following functions:

It is responsible for interpreting the provisions of the Constitution. If any Central or State law is found to be contravening or violating any of the Constitutional provisions or if any law infringes the fundamental rights conferred by the Constitution, then the Supreme Court can strike down such law and declare it to be unconstitutional.
The Supreme Court frames guidelines and rules and lays down the procedure for its own functioning.
The Supreme Court is responsible for protecting and upholding the fundamental rights of the citizens. The court can issue writs under Article 32 for enforcing the rights of the citizens.
The Supreme court is responsible for the protection and upholding of the integrity of the entire judicial system and can punish those for contempt who make derogatory comments against the judiciary.
It resolves the disputes between the Union and the States as well as between two or more states.
It is the highest court of appeal. It hears appeals against the judgments of the subordinate courts and tribunals and gives final judgments on the matters.

Article 141 provides that the subordinate courts would be bound by the law laid down by the Apex Court.

High Courts

The Constitution provides for a High Court in each State under Article 214. However, the Parliament is empowered to establish a common high court, by law, for two or more states. For example, the high court of Punjab and Haryana has jurisdiction over both Punjab as well as Haryana.

Appointment of judges of High Courts

The judges of High Court are appointed by the President. In the case of the Chief Justice of the high court, the appointment is made by the President after consulting the Chief Justice of India and the Governor of the concerned State. With respect to other judges of the high court, the President is required to consult the Chief Justice of the concerned high court.

In the landmark case of S.P. Gupta and Others v. Union of India (1981), it was held by the Apex Court that the opinion of all the three authorities, that is, the Chief Justice of India, the concerned high courts respectively, and the Governor of the State are equally important and the opinion of one does not have primacy over the other. Furthermore, the court, while noting the examples of Australia and New Zealand, recommended the constitution of a Judicial Commission for the recommendation of the appointment of judges to the high courts.

The Constitution (Ninety-Ninth Amendment) Act, 2014 provided for the appointment of judges on the recommendation National Judicial Appointments Commission and attempted to do away with the requirement of consulting the Chief Justice, However, in the case of Supreme Court Advocate on Record Association v. Union of India (1993), the Amendment was declared to be unconstitutional.

Functions of a High Court

It controls the functioning of the subordinate courts and issues rules and guidelines for their functioning.
The high court hears appeals against the judgment and orders of the subordinate courts.
The high court is empowered to issue writs to safeguard the fundamental rights of individuals.
The high courts have the power of judicial review and can declare a law to be void if it is found to be in contravention of the provisions of the Constitution.
If a matter before the subordinate court involves a substantial question of law, then the high court is empowered to withdraw the matter and hear the matter.

Jurisdiction of a High Court

The high court exercises jurisdiction over the territorial limits of the concerned State.

Original jurisdiction: The high court has original jurisdiction in matters relating to the enforcement of fundamental rights, certain revenue matters and election to the State Legislature. The high court has the power to punish for its contempt under Article 215.
Appellate jurisdiction: The high courts have appellate jurisdiction with reference to both civil and criminal matters. Where the accused is sentenced to 7 years of imprisonment or more or to the death penalty by the sessions court, an appeal can be made before the high court. Furthermore, cases involving substantial questions of law can be appealed before the high courts.
Writ jurisdiction: Article 226 of the Constitution empowers the high courts to issue writs for the enforcement of the rights of individuals. It is pertinent to note that the high court can issue writs for the enforcement of fundamental as well as legal rights.
Supervisory jurisdiction: Article 227 of the Constitution confers supervisory jurisdiction on the high courts. The high court exercises superintendence over all such courts and tribunals that are established within its territorial jurisdiction.
Review jurisdiction: Article 226 confers the review jurisdiction on the high courts and empowers them to review their own judgments and orders. The high courts entertain a review petition when there has been material error resulting in miscarriage of justice or where there has been a flagrant procedural error.

An appeal can be made before the high court against the order of the Sessions Judge to sentence the accused for a term exceeding 7 years. An appeal can also be made before the high court in certain cases from the order of the metropolitan or other judicial magistrates.

However, it is pertinent to note that no appeal can be made before the high court in relation to petty cases.

Subordinate Courts

The district courts are established by the State Government. They may be established for an individual district or a group of districts. The high court is responsible for supervising the administration of the District courts. There are primarily two types of District courts:

Criminal courts, and
Civil courts.

The civil courts adjudicate disputes relating to matters such as agreements, rent and divorce. These cases are decided on the basis of the procedure laid down by the Code of Civil Procedure, 1908.

The criminal courts decide cases concerning the violation of law and which are filed by the state. These cases include dacoity, murder, etc. The working of the criminal codes is governed by the procedure laid down by the Code of Criminal Procedure, 1973.

It is pertinent to note that the district courts while dealing with criminal matters, are referred to as session courts.

Any person aggrieved by the order of the district court can prefer an appeal before the high court. Below the district court, there are various other subordinate courts such as the Court of Additional District Judge, Court of Judicial Magistrate of Ist Class, Court of Judicial Magistrate of IInd Class, etc. The largest number of cases are disposed of at this level. The trial and recording of evidence also take place at this level.

The land revenue matters in the state are decided by the revenue courts. The revenue courts include the courts of Tehsildar, Collector, etc. The Board of Revenue constitutes the highest revenue court.

Appointments and composition

The district courts are presided over by a district judge who is appointed by the Governor of the State. The Governor appoints the district judge after consulting the concerned high court. The Additional District Judge may also be appointed subject to the workload.

Other judicial officers are appointed by the State Public Service Commission.

Tribunal

Various special tribunals are set up by the government for dealing with specific matters such as taxes, land disputes, etc. Tribunals may be judicial or quasi-judicial. The Tribunals provide expeditious justice and are usually established when there are several pending matters relating to a particular subject matter pending before the traditional courts. Thus, these tribunals help in reducing the burden of the traditional courts.

Article 323A of the Constitution empowers the Parliament to establish Central as well as State-level administrative tribunals which adjudicate on matters relating to the recruitment and service of public servants.

Article 323B provides a list of subject matters for which the Tribunals may be established by the Union Parliament or the State Legislatures. It includes tax, labour disputes, elections, land reforms, etc. In the landmark case of Union of India v. R. Gandhi and Ors. (2010), it was held that the list of matters provided in Section 323B is not intended to restrict the legislature from establishing tribunals for adjudicating any other matters. The list is not exhaustive and the legislature can establish Tribunals pertaining to any matter provided in the Seventh Schedule.

Nyay Panchayats

The Nyay Panchayats are established at the village level and are aimed at providing cheap and expeditious justice. They are based on the direction provided by Article 40 which states that the State must take steps to empower the panchayats. The 73rd Constitutional Amendment conferred Constitutional status on the panchayats. These Nyay Panchayats adjudicate on minor offences such as wrongful restraint or theft. While these Panchayats enjoy both civil as well as criminal jurisdiction, the pecuniary jurisdiction of these judicial constituents is very low.

The Panches are appointed by the adult people of the village itself. Furthermore, since the posts are honorary, the members do not receive any salary. The minimum age of the members of Nyay Panchayat is 30 years.

The Ashok Mehta Committee which was constituted in 1977 made certain recommendations for the reformation of the Nyay Panchayats. It suggested that the government should form a special cadre for judges of the Nyay Panchayat. The civil jurisdiction of the Nyay Panchayats should be broadened and their criminal jurisdiction should be equivalent to a judicial magistrate of 1st class. The provisions of the Code of Civil Procedure, 1908 as well as the provision of the Indian Evidence Act, 1872 should not apply to the proceedings of a Nyay Panchayat. However, the recommendations of the Committee have not been implemented.

Lok Adalat

Unlike the Nyay Panchayat, the Lok Adalats do not adjudicate disputes, rather, they aim at resolving disputes through mediation and arbitration. The Lok Adalats are also known as the ‘People’s Court’. The Lok Adalats consist of judicial officers, retired and serving, and such other persons as prescribed by the Central Government.

A statutory status was conferred on the Lok Adalats by the Legal Services Authorities Act, 1987. Chapter VI of the Act expressly deals with the organization of Lok Adalats. Section 21 of the Act provides that the award made by a Lok Adalat is deemed to be a decree of a civil court. Furthermore, such an award is binding on the parties to the dispute.

The Lok Adalat has jurisdiction over such cases which are pending before the court for which the Adalat is convened. The parties may either agree to refer the matter to the Lok Adalat or one of the parties may apply before the Lok Adalat or the matter may be referred to the Lok Adalat by the court. Section 20 provides that a Lok Adalat while discharging its duties, must observe the principles of “justice, equity, fair play and other legal principles“.

Judicial independence and constitutional provisions

In India, there is an independent judiciary. The legislature and the executive are prevented from interfering with the judicial functions. This ensures that the judges are able to discharge their duties without any fear.

There are several constitutional provisions which secure the judiciary’s independence. It is pertinent to note that Article 50, a Directive Principle, provides that the State shall take steps to ensure that the judiciary operates separately from the executive. There are various other constitutional safeguards which ensure the Independence of the judiciary

The Supreme Court has the power to appoint the judges of the Supreme Court as well as the various high courts. Article 124(2) provides that the judges of the Supreme Court are to be appointed by the President in consultation with the judges of the Supreme Court and the high court.
The judges of the Supreme Court, once appointed, enjoy the office until they attain the age of 65 years. Similarly, the judges of the high court enjoy the offices until they attain the age of 62 years.
Article 124(4) provides for the procedure of the removal of the judges of the Supreme Court. The judges of the Supreme Court can be removed only by Presidential order. The removal must be supported by a special majority of at least 2/3rd of the members present and voting. The President has to address both the Houses of Parliament and the resolution for removal must be presented to him in the same session. A judge of the Apex Court can only be removed on the grounds of incapacity or misbehaviour.
So far, no judge of the Supreme Court has been impeached. Veeraswami Ramaswami was the first judge against whom the proceedings were initiated but the motion could not sail through the Lok Sabha.
Furthermore, the salaries and allowances of the judges of the Supreme Court as well as the high courts cannot be reduced except when a financial emergency has been declared under Article 360.
The salaries and allowances of the Judges of the constitutional courts are charged under the consolidated fund of India.
The legislature cannot deliberate upon the conduct of a judge while discharging his official duties.
The Parliament as well as the State Legislatures are further barred from curtailing the jurisdiction of the court and can only extend it.
Despite the aforementioned safeguards, if anyone undermines the authority of the court, then the Supreme Court, as well as the high courts, have the power to punish for contempt under Article 129 and Article 215 respectively.

Hurdles in the judicial system

The judicial system in India is currently facing several hurdles. Some of them are:

The constitutional courts, that is, the Supreme Court and the high courts are overburdened with the caseload. This results in enormous delays in justice and sometimes, litigation continues for decades.
Litigation is a costly affair and in several instances, the common people are forced to forgo their rights and claims as they are unable to afford the legal proceedings.
The judiciary lacks the infrastructure to properly deal with the huge caseload. The judicial complexes are overcrowded and several Courts have a shortage of digital infrastructure.
Several British-era laws have become obsolete and need to be amended and modified or repealed.
The caseload before the subordinate courts is also huge and resultantly frequent adjournments are granted by the courts which results in delays.
The undertrial prisoners languish in jails for years while their cases are pending.
There are about 21 judges in India for 1 million people. The ratio of judges to people is very low and the need to improve this ratio was highlighted by the Law Commission in the 245th Report. The Report stated that the shortage of judges was leading to a huge backlog of cases and the issue required urgent and immediate attention.

Conclusion

A vibrant and independent judiciary is essential for any democracy to thrive. The judiciary in India ensures that there is a rule of law and that the rights of the citizens are not violated. It also keeps a check on the other two organs of the government, that is, the legislature and the executive.

However, the judicial system in India is facing several challenges which need to be addressed on a priority basis. There is an urgent need to address the shortage of judges and to ensure that the cases are disposed of in a timely manner. Furthermore, the judicial infrastructure and the working conditions of the trial court must be improved so as to attract talent to the judicial profession.

Frequently Asked Questions

How many judges are there in the Supreme Court of India

The Supreme Court consists of 31 Judges including the Chief Justice.

Which High Court is the oldest High Court in India

The Calcutta High Court which was established in 1862 is the oldest high court in India.

When was the Supreme Court established

The Supreme Court was established on 28th January 1950.

What are three judges’ cases

The three judges’ cases are three judgments in which the court elaborated on the procedure to be followed for the appointment of the Supreme Court judges.

The first judges’ case or S.P. Gupta v. President Of India (1981) was decided in 1981 and in this case, the court held that the President has the ultimate authority to appoint the judges while giving proper consideration to the Chief Justice of India’s opinion.

The second judges’ case or Supreme Court v. Union Of India (1993) was decided in 1993 by a 9-judge Constitutional Bench of the Supreme Court. In this case, the court held that the CJI has a key role to play in the appointment of judges and that the CJI’s concurrence is essential in the process of appointment.

In the third judges’ case, the collegium system was laid down and it was held that the President must appoint the judges on the basis of the recommendation of the collegium.

Who has been conferred with the power to remove Supreme Court judges

Under Article 124, a Supreme Court judge can be impeached by the President, provided the resolution for impeachment is approved by two-thirds of the members present and voting.

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Features of a democracy

By

Sneha Mahawar

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July 13, 2022

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The article is written by Tejaswini Kaushal, a student at Dr. Ram Manohar Lohiya National Law University, Lucknow. This article deals extensively with the features of democracy, both in the international and Indian contexts.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

As Abraham Lincoln famously expressed, democracy is a “government of the people, by the people, for the people”. Democracy is the rule of the people. Its fundamental tenet is that the populace elects a government through frequent, transparent, and free elections. In the history of civilisation, democracy has been essential in transforming the globe from monarchical, imperial, and conquest-based power structures to ones of popular rule, self-determination, and peaceful coexistence. The only known system of government in the world that promises to instill the concepts of equality, liberty, and fairness is a democracy, where citizens make decisions for the nation. The government functions on the basis of discussions and negotiations to develop policies and make choices for the nation, with the people having the ultimate authority to select their representatives, allocate responsibility for the nation’s affairs, and voice their disapproval. This article discusses the features of democracy in international and national contexts.

Concept of a democracy

‘Democracy’, as a term, has Greek origins, where ‘dēmos‘ means ‘people’ and ‘kratos‘ means ‘rule’. A democracy is a system of government in which the people have the power to make laws, i.e., ‘direct democracy’ and decide who will represent them in office, i.e., ‘representative democracy’. In a democratic society, the population has generally increased over time. However, who is regarded as ‘the people’ and how power is distributed among or delegated by the people has evolved through time and at different rates in different countries. Freedom of assembly, association, property rights, freedom of speech, inclusivity and equality, citizenship, consent of the governed, voting rights, freedom from unjustified governmental deprivation of the right to life and liberty, and minority rights are among the foundational principles of democracy.

Democracy has seen significant change over time. Direct democracy was the first type of democracy. A representative democracy, such as a parliamentary or presidential democracy, is the most prevalent type of democracy in use today. In this type of democracy, the people choose the representatives who will represent them in the government. In the most prevalent form of liberal democracy, the majority’s power is exercised within the parameters of representative democracy, but the Constitution restricts the majority’s power and defends the minority, typically by ensuring that everyone has access to certain individual rights, such as freedom of speech or freedom of association.

General features of a democracy

Liberty, Equality and Fraternity

The ideals of the first French revolution, i.e., “Liberty, Equality, and Fraternity” were immortalised as some of the essential features of a democracy. This phrase stands for the fundamental principles of democratic political systems. Absolute kings’ and emperors’ rule has frequently produced peace and order, albeit at the expense of individual liberties. The idea that an ordered society may exist while preserving freedom is supported by democratic principles. But there must be a balance between the law and freedom.

The presence of a Constitution

Every democratic country typically has a written or verbally recorded constitution. A constitution is simply the core set of laws or regulations that govern a state or society. It creates and outlines the functions of the legislative, executive, and judicial branches of the government. The rights and obligations of the government and the populace are also outlined in the constitution.

It is crucial to remember that there are two different kinds of institutions: formal and informal. Formal directives are those that carry out formal duties, like the three organs of government. On the other hand, informational institutions are those that carry out unofficial duties, like political parties and the press. In a democracy, these institutions are often defined by the constitution.

Rule of Law

The rule of law is a system, procedure, institution, practice, or standard that upholds the equality of all people in front of the law, ensures a form of governance that is not arbitrary, and more generally, forbids the arbitrary exercise of power. The rule of law is present in democracies. It denotes the rule of law as absolute. The rule of law cannot ever be violated.

Popular participation in politics

Popular participation in politics is one of democracy’s key characteristics. Given the definition of democracy provided above, it is obvious that any system that discourages citizens from participating in political decision-making is not a democracy. Hence, widespread participation is a fundamental component of democracy rather than just a characteristic of it. Either directly or through a representation they genuinely recognise, people must take part in politics.

Legitimacy

According to the Oxford Dictionary, democracy occurs when people follow the rules or the law. Political scientists define legitimacy as the right and acceptability of authority, typically a governing law or a regime. In simple terms, legitimacy is the acceptance of a state’s citizens and the authority of its leaders to govern. The people have the right to choose who will represent them in government in a democracy. The people will decide on who will run their political affairs in this place by a unanimous vote.

Voting is typically used for this, and it is recognised by the law that the populace has approved. Evidently, this is the reason why Abraham Lincoln asserted that democracy is a form of government that is run by, for, and for the people. This suggests that citizens are crucial in a democracy.

Periodic elections

In a democracy, the people are in charge. Thus, elections are often held every certain number of years. This is done to prevent the state’s political power from being concentrated in a single hand. For instance, in the United States of America, the President is chosen indirectly and serves a maximum of two four-year terms.

It is important to highlight that frequent elections are a crucial component of democracy because a state cannot be said to be democratic if just one person is in charge of running its operations forever. The people, who are supreme, must be given the freedom to select and replace their leaders.

Free and fair election

All adult citizens of the nation must be granted the right to vote in these elections, which must also be completely transparent and impartial. Every vote needs to be appreciated, and each vote needs to have the same weight when choosing representatives. Every democracy must meet this requirement since, even today, some nations deny the right to vote to women and people of non-binary sexual orientation. As a result, they are fundamentally no longer a democracy, rendering the very idea of elections useless. So, not only regular but also free and fair elections are essential.

Separation of powers

The notion of separation of powers was developed by the French social and political philosopher Charles-Louis de Secondat, baron de La Brède et de Montesquieu, in the 18th century. It implies that a state’s political authority should not be centred on one individual. To avoid authoritarianism, it should instead be split up and severed. Here, the branches of government share the political authority of the state, i.e., the Executive, the Legislature, and the Judiciary. The state’s laws are created by the legislature. The court interprets the law while the executive carries it out. These authorities are kept apart so that their operations won’t be hampered. Governmental branches are only permitted to monitor one another’s actions to verify that they all adhere to the laws that the populace approves of.

Check and balances

Further development of the principle of separation of powers is the concept of checks and balances. It was argued by Montesquieu in “The Spirit of the Laws,” his book, that the greatest method to avoid this is through the division of powers, in which various governmental entities exercise legislative, executive, and judicial authority, yet all of these bodies are governed by the law. According to research, Montesquieu’s notion of checks and balances is a governing philosophy in which certain departments of government are given the authority to stop other branches from acting and are encouraged to share power.

In the same vein, the existence of checks and balances in a democracy ensures that the various branches of government are held accountable for their actions. It should be remembered that each branch of government needs autonomy to act independently, within the bounds of the law, in order for the checks and balances mechanism to work. Financial autonomy is also crucial to ensure the effectiveness of checks and balances in a democratic government.

The existence of political parties

A political party is an association of like-minded individuals who unite to seize power. Political parties should exist in a democracy. Not just one, but two or more political parties. This will guarantee that the general public has a variety of options. Because there is only one political party in a one-party state, it cannot be said to be a democratic state. The populace, therefore, has no genuine choice.

According to the democratic tenet that the people are supreme, they have the authority to choose who will handle their political issues. On the other hand, a state is not democratic if there is only one political party or none at all, or if the populace is not free to choose their own leader.

Rule under a democratic nation

The prevailing government is not king in a democratic nation. According to the country’s constitution, the legislative branch is the one with the most authority. A new administration that is elected after a predetermined amount of time only has the authority to make decisions, carry them out, and make changes to a part of the existing laws. All of these actions must be done in accordance with the laws of the nation, which are independent of the governing administration. Citizens of the nation are appointed to these positions based on their qualifications and merit.

State’s obligation

The elected government has a duty and obligation to act in the interests of the general populace. All actions taken during the elected party’s session are the responsibility of the entire council, not just one leader. Democracy enables the entire council, rather than just one person, to make the choice.

Equity before law

Equity before law exists in a true democratic state. This style of government does not support the notion that certain groups of people should or should not be held accountable for their deeds. Even the legitimate leaders of a democratic state are subject to the law while serving the country or afterwards.

Because it assumes that citizens have the same rights to vote and to be elected, equality is a crucial component of democracy. This indicates that every vote cast in an election in a democracy is legitimate, regardless of the voter’s income or status. This is what is meant by equality.

Representation of minorities

Minorities exist in every country on the planet for one reason or another. Giving all of its inhabitants equal citizenship rights is one of democracy’s most salient characteristics. Minorities should not be oppressed or excluded, and the government should do all within its power to ensure that they enjoy an equitable standard of living. Additionally, some democracies throughout the globe allocate minority groups’ representation posts proportionate to the size of their populations while leaving the other positions up to the competition.

Fundamental human rights

Fundamental human rights are also very significant aspects of a democratic state. They are those unalienable, unchangeable rights that are bestowed upon a citizen of a state at birth. These rights aid in defending the people of the state from the abuses of autocrats. This is why the fundamental human rights of people in a democratic state must be entrenched in the constitution of every state. Fundamental human rights also contribute to the efficient exercise of democracy. One of them is freedom of the press. Evidently, one of the fundamental tenets of a democratic state is press freedom.

Freedom of speech, expression, and personal liberty

A democracy that stifles or withholds the public voice is invalid and violates one of democracy’s fundamental tenets. Even if the public’s voice is critical of the governing party, it should be allowed to be heard openly so that individuals can express themselves without fear of retaliation. In a similar vein, a citizen of a democratic nation should be free to act independently and according to their own judgement, so long as they do not endanger the country’s laws or any other individuals. It should be permitted to express one’s disapproval of anything, as this is essentially the only way to hold the government’s leaders accountable for their acts and policies. By doing so, the state completely undermines the power of a group of people, rendering the idea of democracy itself meaningless.

Freedom of press

Because the press plays a vital role in a democracy, press freedom is another fundamental characteristic of all democracies. First of all, adhering to this principle permits the public to freely establish print and online media outlets to report on and dissect governmental acts. One of the foundational principles of democracy is that it promotes accountability in government.

Without press freedom, there can be no democracy since the government will barely be held responsible for its activities since it will be obvious that no one is keeping an eye on them and disclosing them. Some of the most corrupt nations in the world today are found in Europe and Africa.

However, it should be remembered that this independence frequently has a limit. Most nations consider it a crime of treason, punishable by death, when the press attempts to disparage the government or urge the populace to attack the government.

Democracy in India

Democracy’s origins may be found in Athens, a legendary city from antiquity. One of the ancient civilizations was in India. The existence of Sabhas and Samitis throughout the Vedic Period is where India’s history of democracy begins. The majority of ancient cities and nations were monarchies, although not all of them. The ideas of democracy were not missing and existed in many forms throughout the Mughal era. The British occupation of India is when the idea of democracy first became significant to its citizens.

One of the biggest democracies in the world, India has one of the world’s greatest voting populations. India also has the world’s longest written constitution. Since its inception, India has taken a progressive stance. Indians have granted women the right to vote, protected every citizen’s fundamental rights, and incorporated the principle of the separation of powers. Indians have also incorporated principles like secularism, which are still not widely practiced in other democracies, into the Indian Constitution from the beginning. The key instrument that guarantees the survival and expansion of India’s democratic ethos is the Constitution of India.

Features of Indian democracy

The following focuses on some aspects of Indian democracy that are highly regarded in India and discussed all around the world. Indian democracy consists of all the features listed above in general, in addition to the following specific points:

Popular sovereignty

In India, the general populace elects their representatives and controls their behaviour by their opinions. Democratic governments must provide the institutions necessary for the formation of the public’s opinions on a variety of issues. The legislature offers the most significant forum for gauging and expressing popular opinion.

Federalism

India has a federal government that leans a little more toward a unitary form of governance. India is, hence, sometimes described as having a quasi-federal structure. A system known as federalism divides authority between the federal government and the states. India is referred to as a union of states in Article 1 of the Indian Constitution. The Indian Constitution declares that the states are independent. And Schedule VII‘s allocation of authority between the federal government and the states makes a strong case for a federal system of government. In certain areas, they enjoy complete autonomy, while in others, they are reliant on the centre.

Rule of majority

Regular, free, and fair elections are held across the country. The party with the most votes is said to have won the election.

Even within the legislature, majority rule seems to play an essential role. In the context of decision-making for legislative decisions, majority rule is a decision-making principle that favours options with a majority or more than half the votes. In significant decision-making organisations, such as many legislatures of democratic countries, it is the binary decision rule that is most frequently utilised.

Rule of consent

Rather than by compulsion or force, the chosen party will rule with the permission of the people. The consent of the people is important in a democracy since the participation of the people will allow the people to believe that they are in power and will allow themselves to be governed by a government following the other principles of democracy.

Welfare-oriented government

A welfare state is a form of governance in which the state actively safeguards and advances the economic and social well-being of its people. It is founded on the ideas of equal opportunity, equitable economic distribution, and public responsibility for those unable to access even the bare necessities for a decent life. The broad phrase might refer to a wide range of economic and social organisational types.

India attempted to establish a welfare state by implementing “directive principles of state policy” in Article IV of the constitution. The government of India consistently tries to provide for the welfare of its citizens and has introduced a number of programmes to improve citizen wellbeing. The elected officials in India should try to ensure their constituents’ welfare.

Compromise-based government

A compromise government is one in which disagreements are resolved via the exchange of concessions; it is an arrangement in which opposing or competing claims, principles, etc., are adjusted through mutual modification of demands. Democracy is a kind of compromise and adjustment-based governance. It functions majorly upon the outcome of such exchanges and concessions. Different viewpoints from both inside and outside the ruling party should be taken into account. There are several viewpoints that the government must take into account.

Multi-party system

In terms of politics, a multi-party system is one in which several political parties from various political spectrums participate in national elections and have the potential to win control of the government, either individually or through a coalition. India has a multi-party system, which means more than two parties can run for office and either party has a chance of taking the reins of the nation. It helps in representing all the different demands from different sections of society and geographical areas to get political representation.

Political equality

Political equality is the degree to which all citizens have an equal say in how their governments are run. Equal consideration of the preferences and interests of all citizens is one of the fundamental tenets of a democracy. This is reflected in ideas like one person, one vote, equality before the law (Article 14 of the Indian constitution), and equal free speech rights (Article 19 of the Indian constitution). Equal political participation among citizens, including equality in other types of engagement than voting, across important groups of citizens, promotes equal consideration of the preferences and requirements of all citizens. Everyone who is an Indian citizen is eligible to vote, regardless of caste, creed, religion, sex, or ethnicity. Thus, the principle is held in high regard in India.

Collective accountability

The legislature, which is made up of the elected government, is collectively accountable to the elected government. In an Indian democracy, the Council of Ministers, both in the states and the centre, is collectively responsible for their respective ministers. No minister is solely accountable for any government action. All actions are within the purview of the full council of ministers.

Individual dignity

Individual dignity is protected by Indian democracy through a variety of rights, including the right to equality (Article 14 of the Indian constitution), the right to freedom of speech and expression (Article 19 of the Indian constitution), the right to life and liberty (Article 21 of the Indian constitution), etc. This is one of the features that ensures citizens’ contentment with a democratic structure in their country.

Education as a right

Every person has the right to an education in a democracy. Every person in India has a right to an education, and there is no partiality in education based on caste, colour, creed, or race. Children between the ages of 6 and 14 are now able to receive an elementary education. Providing compulsory education to children above the age of 14 years remains a Directive Principle of State Policy (Article 45 of the Indian Constitution).

Right to create a union and an association

India is a democratic country where everyone is free to create their own organisations or unions. All Indian citizens are granted the freedom to “establish organisations, unions, or cooperative societies” under Article 19(1) of the Indian Constitution. Communication is one of every person’s fundamental rights in order to interact with other people in the community or society.

Independent judiciary

Courts in India are independent and are not governed by any government agency or political party. The judiciary body of India makes its own decisions independently and is not subject to any influence from the legislative. This allows for free and fair decisions.

In a democracy, the judiciary’s independence is crucial. When the government represses the liberties and rights outlined in the Constitution, the public resorts to the judiciary. Therefore, it is crucial to have an independent judiciary to hold the legislative and government in check in the event that they overstep their authority.

India uses this system, which allows many individuals the chance to serve as citizens’ representatives. In contrast to other systems where just one or two parties compete, it also offers a broad variety of alternatives to the public.

Constitution’s supremacy

In India, neither the parliament nor the judiciary have any precedence over the Constitution. Everyone is required to operate within the bounds of the Constitution, and everyone has limitations on the powers that come from it. As stated and reaffirmed by the judiciary on several occasions, the Constitution is paramount and its fundamental structure cannot be overturned.

Written constitution

In contrast to many other nations, India has a written constitution which clearly defines the roles, powers, and obligations of the several departments of government and sets down the limitations within which they must operate. The judiciary and parliament continue to have the authority to interpret and alter the Constitution in order to adapt it to the changing demands of the populace and the times.

Conclusion

Democracy in India and across the world is regarded as the best structure of government. In a democracy, citizens use participation and representation to exercise their power in the decision-making process. Today, democracy is deteriorating. All around the world, the very foundational values of democracy are in severe jeopardy. Wealth is concentrated in a select few people’s hands. The principles of liberty, equality, and fraternity itself are in danger. Power is centralised in the hands of a select few who are not elected with a majority of the popular vote in the name of the will of the people. There is frequently a connection between those in authority and the media, which supports their views. Democracy is evolving away from what it was intended to be.

The problems that democracy is having right now must be urgently addressed. The core principles of democracy must be safeguarded. More representation should be provided to the disenfranchised and members of lower social levels. A lot more women need to participate in democratic processes. To stop identity politics, the use of black money in elections, and the criminalization of politics, strict regulations should be in place. Only if the flaws in the democratic system are investigated and proactive steps are taken to enhance Indian democracy, will India, the world’s largest democracy, become the strongest in the near future.

Frequently Asked Questions (FAQs)

What is meant by ‘democracy’?

As Abraham Lincoln famously expressed, democracy is a “government of the people, by the people, for the people”. Democracy is the rule of the people. Its fundamental tenet is that the populace elects a government through frequent, transparent, and free elections.

What are the important features of a democracy?

The most essential features of democracy across the world include aspects of liberty, equality, and fraternity, the presence of the constitution, rule of law, popular participation in politics, legitimacy, periodic elections, free and fair elections, separation of powers, check and balances, the existence of political parties, rule under a democratic nation, state’s obligation, equity before the law, representation of minorities, fundamental human rights, freedom of speech, expression, and personal liberty, and freedom of the press.

What are the features that define Indian democracy?

The features defining Indian democracy include popular sovereignty, federalism, rule of the majority, rule of consent, welfare-oriented government, compromise-based government, multi-party system, political equality, collective accountability, individual dignity, education as a right, right to create a union and an association, independent judiciary, constitution’s supremacy, and a written constitution.

Which countries have a democratic government?

The USA, India, France, Norway, Iceland, Sweden, New Zealand, Finland, Ireland, and Canada are some of the most prominent democratic countries across the globe presently.

What are the types of democracies prevailing around the world?

Different types of democracies prevailing around the world are direct democracy, representative democracy, constitutional democracy, and monitory democracy.

References

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Environment legislation in India

By

Rachit Garg

-

July 12, 2022

0

This article is written by Mrinal Mukul, a student at O.P Jindal Global University, Haryana. This article talks about the actions taken by the government to protect and conserve the environment.

It has been published by Rachit Garg.

Table of Contents

Introduction

Environmental law is an integral part of any government agency. It includes a series of laws and regulations related to water quality, air quality, and other environmental aspects. The success of environmental legislation mainly depends on how they are implemented. Legislation is also a valuable tool to educate people about their responsibility to maintain a healthy environment. Environmental law in India is based on principles of environmental law and focuses on the management of certain natural resources such as minerals, forests, and fisheries. Environmental law in India directly reflects the provisions of the Constitution. The need to protect and maintain the environment and make sustainable use of natural resources is reflected in India’s constitutional framework and India’s international obligations.

However, after so many initiatives in the field of environmental law to set up sustainability, India’s growing economy still lacks to deal with environmental issues. Moreover, Indian regulators are trying to revise its existing environmental rules and acts, which may result in more stringent company requirements. But, these initiatives will not work if we as a society don’t focus on them. People’s awareness plays a significant role in such policy development, which is why we need to come together to work on these major issues. Government and non-government organisations need to work together to solve environmental issues, and there should be a stricter policy regarding environmental legislation.

What is environmental legislation

Environmental legislation is a collection of laws and regulations related to water quality, air quality, endangered wildlife, and several other environmental factors. Environmental legislation covers many laws and regulations, but they all work towards a common goal of regulating human-nature interactions to reduce threats to the environment and improve public health. As we can imagine, environmental legislation is broad, mainly because the natural environment encompasses several aspects. All this means that environmental law must take into account everything from the air we breathe, to the natural resources we depend on, to the flora and fauna that share this world with us.

After so much interconnection with each other, it becomes important for us to understand environmental legislation because we all share the same resources.

Climate change in India

If we take the example of India, then it is one of the countries most affected by climate change. About half of India’s population depends on agriculture or other climate-sensitive sectors. About 12% of India is prone to floods and 16% to droughts. India is now the world’s third-largest emitter of greenhouse gases after China and the United States. From 1990 to 2009, India’s annual emissions nearly tripled, from less than 600 tons to more than 1,700 tons. From 2008 to 2035, India’s annual carbon emissions are expected to increase nearly 2.5 times. Net greenhouse gas emissions from India’s land use, change, and forestry in 2007 was 1,727.71 million tons of carbon dioxide. While the energy sector accounts for 8% of net CO2 emissions, the industrial sector, agriculture, and waste sectors account for 22%, 17%, and 3% of net CO2 emissions, respectively. As a result, climate change and energy are now the focus of local, state, and national concerns around the world. While India has previously emphasised that it is a developing country with historically low per capita emissions rates and is not responsible for past greenhouse gas emissions, India has now become a key player in international negotiations. It has begun implementing a diverse set of laws, improving energy efficiency, developing clean energy and preparing for the impacts of climate change nationally and individually.

On the other hand, India is considered to be a land of spirituality and philosophy and is also the land of rivers as it has 14 major rivers, 44 medium rivers, and 55 minor rivers. From the Ganges in the north to Kaveri in the south, the waterways are considered sacred by most devout Hindu pilgrims, as religious texts say the Ganges can purify the sins of the bathers. It is said that the sight of Narmada is enough to purify the waters. However, India’s rivers are increasingly becoming dumping grounds for domestic, industrial, and agricultural waste. A polluted environment threatens human existence on earth, thereby endangering human beings. A country’s borders cannot limit these environmental issues to a specific country or region, but their impact is global. This massive environmental degradation has drawn global attention to protecting and preserving the earth’s environment.

Therefore, efforts are being made to inculcate environmental awareness among the masses. Education makes people more aware of the environment and environmental issues. Existing policies, laws, precedents, regulations, norms, decisions, etc., already constitute a large and complicated apparatus of documents and powers conferred on specific institutions or persons. However, the current laws also seem unable to solve the problem and that more may be needed, the question inevitably arises as to how much resources, wealth, energy, and intelligence India should devote to this regulation and control task.

Need for environment legislation

The genesis of various national legislations lies in environmental issues. There should be effective legislation to protect the environment; otherwise, the growing population will create havoc and will destroy the environment. Another important aspect is the enforcement of these laws. We must vigorously and effectively enforce the law to protect our environment from further degradation and pollution. Pollution is an important factor, ignoring political territory and legislative jurisdiction. Therefore, environmental problems are global in nature. To prevent such problems, it is not only necessary to enact environmental laws at the national level but also the international level.

While modern society is increasingly concerned about global environmental issues, developing countries also have their complex, severe, and rapidly growing pollution problems. The potent combination of industrialization development and mass consumption trends is exacerbated by foreign companies operating with little regard for the impact on the local environment. Pollution is not just a health issue; it is a broader social issue, as pollution has the potential to destroy families and communities. Pollution issues are also closely related to the mode of development in developing countries. Nonetheless, many developing countries either do not have pollution control policies or do not have sufficient enforcement structures to ensure that policies are effective.

The combination of rapid industrial development (especially petrochemical and heavy industry), strong economic growth, and unprecedented urban expansion have substantially increased pollutant emissions.

Purpose of environment legislation

The importance of environmental legislation is that environmental protection cannot be achieved without appropriate regulations and laws. Raising environmental awareness and promoting environmental education are the means by which people do not destroy the environment but protect it for the future. However, it is the legislation that ensures that environmental protection is actually implemented in everyday life. Legislation requires businesses, companies, the public, industries, etc., to protect the environment and prevent environmental degradation. It provides severe penalties for those who do not abide by the laws and rules. Ultimately, this type of enforcement ensures that ideas and plans are turned into practical efforts to protect the environment. At the international level, several environmental treaties and conventions attempt to address environmental issues. With the Stockholm Conference on the Human Environment (1972), the United Nations began to emphasize environmental aspects. Since then, several nations have adopted seventy international treaties, declarations, charters, agreements, and so on. These efforts were made to safeguard the environment and balance human development with environmental conservation.

Laws related to environment in India

At the national level, some remarkable efforts have been made to improve and protect the environment by incorporating Amendments into the Indian Constitution. Our Constitution initially did not directly provide for the protection of the natural environment. However, following the United Nations Conference on the Human Environment in Stockholm in 1972, the Indian Constitution was amended to include environmental protection as a constitutional mandate. The 42nd Amendment clause (g) of Article 51A of the Constitution of India states that protecting and improving the natural environment is a fundamental duty. Every citizen of India has a duty to protect and improve the natural environment, including lakes, forests, wildlife, and rivers, and to be sympathetic to living things. A policy or directive is empowering the state as one of the Directive Principles of State Policy sets out to protect and improve the environment.

Article 48A stipulates: The state strives to protect and improve the environment and secure the country’s forests and wild animals. The Ministry of Environment was established in India in 1980 to ensure a healthy environment in the country. Later, this became the Ministry of Environment and Forests in 1985. The Ministry has overall responsibility for the management and enforcement of environmental legislation and policies. Constitutional provisions are backed by a series of laws – Acts and Rules. Most of our environmental laws are Acts of Parliament or State Legislatures. These Acts generally give regulators the power to make regulations to enforce them. The Environmental Protection Act (EPA) of 1986 came into effect shortly after the Bhopal Gas tragedy and is considered protective legislation because it filled many gaps in existing legislation.

Since then, a significant number of environmental law has been enacted to deal with specific environmental issues. In Delhi, for example, CNG was recently mandated for public transport vehicles. This reduces air pollution in Delhi.

Environment laws in India

There are so many environmental laws in force in India, and some are as follows: –

The Public Liability Insurance Act and Rules 1991 and Amendment, 1992

The Public Liability Insurance Act and Rules, 1991 and Amendment, 1992 were introduced to provide public liability insurance to persons in accidents impacted unintentionally while taking care of any perilous substance.

The National Environmental Tribunal Act, 1995, Amendment, 2010

The Act seeks to provide compensation for damages to persons, property damage, and environmental damages caused by activities involving hazardous substances. The three main goals are:

Efficiently and expeditiously handle cases related to environmental protection and protection of forests and other natural resources. All previously pending cases are also being heard by the Tribunal.
It aims to enforce all legal rights related to the environment.
It also accounts for providing compensation and relief to the people who are affected by the damage.

The salient features of the Amendment are as follows:

The Amendment provides every citizen of India the same opportunity to apply to the National Green Court.
Ensure that the principles of sustainable development, the precautionary principle, the polluter pays principle, and intergenerational equity are taken into account by courts in hearing appeals and delivering judgments.

The National Environment Appellate Authority Act, 1997

The National Environmental Appellate Authority Act, 1997 was created to hear appeals related to restrictions of areas in which classes of industry, etc., are prescribed certain safeguards under the Environmental Protection Act.

The Biomedical Waste (Management and Handling) Rules, 1998

Biomedical waste refers to any waste, including the categories listed in the Rules, generated during the diagnosis, treatment, or immunisation of humans or animals, related research activities, or the production or testing of biological waste. The Biomedical Waste (Management and Handling) Rules, 1998 simplify the process of handling hospital waste, such as a disposal, collection, and sorting.

The Environment (Siting for Industrial Projects) Rules, 1999

The Environment (Siting for Industrial Projects) Rules, 1999 set out detailed provisions on the areas to be avoided for the establishment of industrial plants, the precautions to be taken in site selection, and the environmental protection aspects to be considered while implementing industrial development projects.

The Municipal Solid Wastes (Management and Handling) Rules, 2000

These Rules apply to each municipal authority. They must ensure that solid waste generated by the city/municipality is handled in accordance with rules and regulations for collection, separation, storage, transportation, processing, and disposal.

The Batteries (Management and Handling) Rules, 2001

The Central Government considers battery waste management more important than battery production, so the Ministry of Environment and Forests (MoEF) has notified the final rule regulating the collection and recycling of all used lead-acid batteries in India, called The Batteries (Management and Handling) Rules, 2001, on 16 May 2001. The Act applies to battery management under the Environment (Protection) Act 1986 and extends throughout India. As the issue of battery waste disposal has become a global issue, it is only the right step for India to prevent it from damaging our air, water, or soil.

The Noise Pollution (Regulation and Control) (Amendment) Rules, 2010

These rules stipulate the necessary conditions to reduce noise pollution and allow the use of loudspeakers or public address systems during cultural or religious celebrations at night (between 10:00 p.m. and midnight).

Here are the key features of the Amendment:

Loudspeakers, sound systems, or amplifiers should not be used at night except in enclosed spaces such as auditoriums, meeting rooms, community halls, banquet halls, etc., or during public emergencies.
Noise levels at public spaces where loudspeakers or public address systems are being used should not exceed 10 dB or 75 dB of the area’s ambient noise standard, whichever is less.
No horn should be used in the residential area except during an emergency.
Sound emitting construction equipment will not be used at night.

The Air (prevention and control of pollution) Act, 1981

The Act aims to control and prevent air pollution in India, and some of its main objectives are:

Prevent, control, and reduce air pollution.
To provide for the establishment of boards to enforce the law at the federal and state levels. Central Pollution Control Board (CPCB) and State Pollution Control Board (SPCB) were given the responsibility.

It is stipulated that air pollution sources such as internal combustion engines, industries, vehicles, and power plants shall not contain particulate matter, lead, carbon monoxide, sulfur dioxide, nitrogen oxides, or volatile organic compounds (VOCs) or other toxic substances exceeding specified limits. It empowers state governments to designate air pollution areas.

Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA)

The Act recognizes and grants the forest rights and occupation in forest lands to Forest Dwelling Scheduled Tribes (FDSTs) and Other Traditional Forest Dwellers (OTFDs) who have lived in such forests for generations. The Act is chaired by the Department of Tribal Affairs. The law also stipulates the responsibilities and powers for the sustainable use of FDST and OTFD, the protection of biodiversity, and the maintenance of ecological balance. It strengthens forest protection systems while ensuring livelihoods and food security for FDST and OTFD. It aims to correct the colonial injustice of the FDST and OTFD, which are critical to the survival and sustainability of forest ecosystems. The law identifies four types of rights:

Title rights: It gives the FDST and OTFD the right to own land cultivated by tribes or forest dwellers up to a maximum area of 4 hectares. Ownership only applies to the land cultivated by the relevant family and does not grant new land.
Right to use: Dweller rights extend to the extraction of smaller forest products, pastures, pasture paths, etc.
Forest management rights: It includes the right to protect, regenerate, conserve or manage all community forest resources that traditionally protect them and preserve them for sustainable use.
Relief and development rights: Rehabilitation in case of illegal eviction or relocation and essential amenities are subject to restrictions for forest protection.

The Forest (Conservation) Act, 1980

Forests are an essential resource endowed by nature to human beings. Therefore, protecting the forest ecosystem is the responsibility of every citizen. But rapid deforestation disrupts the cycle of nature itself. Therefore, it is necessary to enact laws to protect forests. The main objective of the Act is to protect forests and their flora, fauna, and other diverse ecological components while preserving the integrity and territory of the forests. Furthermore, forest land is prevented from being converted for agricultural, grazing, or other commercial uses and intentions.

The Wildlife Protection Act, 1972

The Act protects the nation’s wildlife, bird and plant species to ensure environmental safety. Among other things, the law imposes restrictions on hunting many animal species. The law was last amended in 2006. An Amendment was submitted to the Rajya Sabha in 2013 and referred to the Standing Committee but was withdrawn in 2015.

In India, the Wildlife (Protection) Act 1972 safeguards and protects wild animals. The law is a product of a time when environmental jurisprudence is rapidly developing in India and deserves due credit for judicial activism. The enactment of this law acknowledges that all previous laws, such as the Wild Birds and Animals Protection Act of 1912 were inadequate. The current law is comprehensive and covers mostly all the gaps that existed in the previous law.

However, there are still substantial gaps in the applicable law. There is a vacuum between theoretical laws and practical implementation. In addition, the aim of the law is diluted by bureaucratic interference.

The Water (Prevention and Control of Pollution) Act, 1974

The Water (Prevention and Control of Pollution) Act, 1974 was enacted to prevent and control water pollution and maintain or restore water health in the country. The law was amended in 1988. The Water (Prevention and Control of Pollution) Cess Act was enacted in 1977 to provide for the levy of taxes on water used by persons engaged in certain types of industrial activities. Under the Act, it was levied to augment the resources of the Central and State Commissions to prevent and control water pollution. The law was last amended in 2003.

The purpose of enacting the Water Act is to prevent and control water pollution in India. Pollution means the contamination of water, or the alteration of the physical, chemical, or biological properties of water, or the discharge of sewage or commercial sewage or other liquids, gases, and solids (whether directly or indirectly) into the water, or as apposite to cause a nuisance or harmful to public health or safety or domestic, commercial, industrial, agricultural or other lawful uses or the life and health of an animal or plant or aquatic tissue.

Water pollution is a big problem in India, and its control and prevention are other big problems. So far, we have not been able to raise awareness of the importance of water conservation. The law, of course, provides for various authorities that will work to prevent this; the law provides various complaints procedures and the powers of various agencies. However, more work needs to be done to make the law more comprehensive, involve more local people, and make it a strong deterrent with heavier penalties. Most importantly, more emphasis should be placed on the enforcement aspect, as pollution can not only be controlled through legislation but also must be adequately enforced.

The Ozone-Depleting Substances (Regulation And Control) Rules, 2000

The Ozone-Depleting Substances (Regulation And Control) Rules, 2000 sets deadlines for phasing out various ozone-depleting substances (ODS) and regulating the production, commercial import, and export of products containing ODS. These regulations prohibit the use of ODS and Chlorofluorocarbons (CFCs), halons, carbon tetrachloride, and methyl chloroform, except for metered-dose inhalers and other medical uses.

Coastal Regulation Zone Notification, 2018

It was notified on the recommendation of the Shailesh Nayak Committee. This regulation promotes sustainable development and also focuses on natural disasters such as sea-level rise due to global warming and promotes sustainable development. It also protects and preserves biodiversity while ensuring the livelihoods of local communities, including fishermen.

Coastal Regulation Zone (CRZ) is divided into four regulatory zones:

CRZ I – Ecologically sensitive areas such as mangroves, salt marshes, coral reefs, turtle nesting sites, and inter-tidal zones.
CRZ II- Areas close to the shoreline and which have evolved.
CRZ III- Coastal which are not substantially built up, comprising rural coastal areas.
CRZ IV- Water area via Low Tide Line to the limit of provincial waters of India.

The Energy Conservation Act, 2001

The Energy Conservation Act, 2001 was ratified as a step toward revamping energy efficiency and reducing waste. It deals with energy consumption standards for equipment and appliances. Furthermore, it deals explicitly with the matter of energy consumption norms and other necessary standards for consumers. The growing population of India and the consequent increase in energy consumption have led to the depletion of natural resources, which once disappeared cannot be reborn in the same state. To challenge this reality, the Indian Government in 2001 considered enacting the Energy Conservation Act to regulate energy consumption and conservation in India. The law authorizes the Central Government to issue energy-saving certificates to consumers whose energy consumption is lower than the prescribed norms and standards. Consumers whose energy consumption exceeds the prescribed norms and standards shall be entitled to purchase the energy savings certificate to meet the prescribed norms and standards. The Act requires large energy consumers to comply with energy consumption standards, new buildings to comply with Energy Conservation Building Code, and equipment to meet energy performance standards and display energy consumption labels.

It suggests energy conservation building codes for commercial buildings. The Bureau of Energy Efficiency (BEE) is a statutory body set up under the Act.

The Government of India established the Bureau of Energy Efficiency on 1st March 2002, in accordance with the provisions of the 2001 Energy Conservation Law. The mandate of the Office of Energy Efficiency is to assist in the development of policies and strategies, focusing on self-regulation and market principles within the general framework of the Energy Conservation Act, 2001, with the primary objective of reducing the energy intensity of the Indian economy.

The mission of BEE is to develop policies and strategies emphasising self-regulation and market principles within the general framework of the Energy Conservation Act, 2001, with the primary purpose of promoting energy-saving measures, thereby reducing the unit energy intensity (i.e., energy consumption) of products in the Indian economy/ services, practices and procedures).

The Biological Diversity Act, 2002

The Biological Diversity Act, 2002 was enacted to give effect to the Convention on Biological Diversity (CBD), to check biopiracy and protect biological diversity and local growers with the help of a three-tier structure made by central and state boards and local committees, and to set up State Biodiversity Boards (SBBS), Biodiversity Management Committees (BMCS), and National Biodiversity Authority (NBA).

The Act is generally designed to protect biodiversity, to protect and control the appropriate use of its components, and to ensure equitable distribution of the benefits of such use. The stated goals of the law are to protect traditional knowledge, prevent biopiracy, prohibit people from applying for patents without government permission, and more. Chapter IX of this Act describes various aspects of biodiversity conservation objectives, in particular Sections 36, 37 and 38 which relate to the development of national plans and programmes for the conservation of biodiversity, state notification and conservation of biological diversity areas, and with the authority of the central government to notify species that are dangerously endangered, on the verge of extinction, endangered species, prohibit collection, etc. While the sustainable use of its components suggests regulation of the use of natural resources rather than consumption.

Article 21 of the Act provides for benefit sharing. It aims to ensure that the benefits derived from the available biological resources, their by-products, knowledge and related practices are equitably shared between the person applying for acquiring such benefits and the local bodies involved.

The National Green Tribunal Act, 2010

The National Green Tribunal Act, 2010 was established to provide judicial and administrative remedies for victims of pollution and other environmental damage. The National Green Tribunal (NGT) was established in 2010, which is a specialised judicial body with expertise dedicated to adjudicating environmental cases in the country. Given that most environmental cases involve multidisciplinary issues and are best dealt with in dedicated forums, the Tribunal was established on the advice of the Supreme Court, Law Commission and India’s international law obligations to formulate and effectively implement national environmental laws. The task of the Tribunal is to find effective and prompt remedies in cases relating to environmental protection, the protection of forests and other natural resources, and the enforcement of all environmental legal claims. The Tribunal’s order is binding and has the power to provide relief to those affected in the form of compensation and damages.

It also agrees with Article 21 of the Constitution, which is the right of citizens to a healthy environment. The National Green Tribunal must resolve cases brought to it within six months of its appointment. NGT is primarily responsible for matters related to major environmental issues.

But advantageously, because of the National Green Tribunals, which encourages lawyers to specialize in environmental law, the Tribunal is seen as an important aspect of achieving justice in environmental matters. A time will come when our environment will receive the greatest attention from the laws pertaining to it.

The Wildlife (Protection) Act, 1972

The Act provides for the protection of wild animals, plants, and birds. It straddles the whole of India. It has six schedules that give different levels of protection:

Schedule I and part II provide absolute protection, and offences under these will be subject to the highest penalties. Species listed in Schedule III and IV are also protected but with much lower penalties.

Animals that come under Schedule V, such as common crows, fruit bats, mice, and rats, are legally considered pests and can be hunted freely.

The endemic plants listed in Schedule VI shall not be cultivated.

The Wildlife (Protection) Amendment Bill, 2021

The Wild Life (Protection) Amendment Bill, 2021 was introduced in Lok Sabha by the Ministry of Environment, Forest and Climate Change. The Bill aims to increase the number of species protected under the law and implement the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

Some of the key areas the Bill focuses on:-

Standing Committees of State Boards of Wildlife: This Bill proposes the creation of a Standing Committees of State Boards of Wildlife. These Committees will operate like the National Board for Wildlife (NBWL). It can make decisions about wildlife management and project licensing without having to refer most projects to NBWL.
Rationalisation of Schedules for Wildlife: The Bill simplifies Schedules for Wildlife under the Act, bringing it down from 6 to 4 major Schedules.
Wildlife Management Plans: The Bill states that the Wildlife Management Plans, which are prepared for national parks across the country, are now part of the Wildlife Act. The Chief Wildlife Warden must also approve them of the state. This ensures stricter protection of these protected areas. Previously, the plans were approved by executive order.

Landmark cases on environment legislation in India

J.C. Galstaun v. Dunia Lal Seal (1905)

This is the first environmental pollution incident reported in India. In this case, the plaintiff sued the defendant’s adjacent factory for discharging waste liquid from its manufacturing process into a municipal drain that passed through the plaintiff’s garden. He claimed that the liquid had an unpleasant smell and was harmful to the health of nearby residents, especially his own, and secondly, it damaged his health, comfort, and the market value of his garden property. The defendant admitted to foul-smelling his liquid waste but denied that it was harmful or would damage the plaintiff’s property. He said his factory was licensed by the government and produced legally. The judgment was later appealed to the Calcutta High Court.

The High Court rejected the above argument and came to the conclusion that the defendant is accountable for such harm and had no such right to discharge any kind of liquid into the municipal drain. Due to such actions, the damage has actually been caused to the plaintiff. Therefore, he is entitled to substantial damages.

Rural Litigation And Entitlement Kendra, Dehradun v. State of U.P. & Ors. (1985)

In this case, the plaintiff NGO wrote a letter to the SC stating that illegal limestone mining in the Mussoorie-Dehradun area is destroying the region’s fragile ecosystem. The Court treated the letter as a writ petition and heard the parties.

The Court issued a detailed Order giving various directions, noting that the reasons for the order would be set out in subsequent judgments. The Court stressed that industrial development is a necessary condition for the country’s economic growth. However, when people try to achieve industrial growth through random and reckless mine operations, resulting in loss of property, loss of life, loss of basic infrastructure such as water supply, and the creation of ecological imbalances, there may ultimately be no real economic growth and no real prosperity. It was important to find an appropriate balance. When giving leases, authorities must consider all these facts and provide adequate safeguards.

M.C. Mehta & Another vs. Union of India & Others & Shriram Foods & Fertilizer Industries & Another v. Union of India & Others (1987)

M.C. Mehta filed a writ petition under Articles 21 and 32 of the Constitution. He demanded the closure of Shriram Food and Fertilizer as it manufactures hazardous substances and is located in the densely populated area of Kirti Nagar. While the petition was pending, there was a leakage of oleum gas from one of its units, which killed many people, thus, affecting the health of several others. The incident occurred a few months before the Environment (Protection) Act came into force and became the driving force behind such an effective law.

In the Judgment, Chief Justice Bhagwati mentioned that all these chemical industries are dangerous, but they cannot be removed from the country because they improve the quality of life. As dangerous as these industries are, they need to be set up as they provide many supplies, as in this case the factories supply chlorine gas to the Delhi Water Company to maintain clean drinking water. These industries are important for the country’s economic growth. The case is a landmark verdict as it is the first time in Indian history that a company is liable for damages. The Supreme Court defended the environment and public rights in this case because it considered ll legal and social and economic factors.

M.C. Mehta v. Union of India (1997)

The Taj Mahal case, commonly known as the Taj Trapezium case, was fought by M.C. Mehta and the Union of India. In 1984, Mehta visited the Taj Mahal and noticed that the white marble of the Taj Mahal was turning yellow. To find out, he filed a petition in the Supreme Court. The petitioner stated that pollution is the main cause of the Taj Mahal’s white marble turning yellow. Emissions of harmful gases such as sulfur dioxide and oxygen become acid rain. The rain damaged the monument and turned the marble yellow. Therefore, the petitioner requested the protection of the monument. The Supreme Court found that, in addition to chemicals, socioeconomic factors also affected the mining of the Taj Mahal. People living in trapeze zones are at risk of air pollution. Court ordered that 292 industries operate on safer fuels like propane instead of coke/coal; otherwise, they would have to relocate.

The Gas Authority of India Limited was in charge of applications of gas. The Court also granted certain fundamental rights to industry workers and demanded payment of their wages during relocation.

M.C. Mehta v. Union of India (1988)

In the case of M.C. Mehta v. Union of India (1988), a writ petition had been filed in the Supreme Court to prevent leather tanneries from dumping household and industrial waste in the river Ganga. He asked the court to stop sewage discharge into the river until a certain treatment plan has been incorporated to curb water pollution.

The Court held that polluted water can cause various water-borne diseases and is extremely harmful to the public. As for whose responsibility, the Court ruled that it was the industry’s responsibility to ensure the waste was properly handled and subsequently released. Mahapalika was also held accountable for failing to perform its duties and for failing to act to prevent water pollution, according to the Court. It ordered Mahapalika to take immediate action in this regard.

The Court also ordered the federal government to make publications freely available to the general public to raise awareness of environmental issues. It went on to say that the decision will apply to all Mahaparikas who have jurisdiction over the Ganga.

The decision is still considered one of the most important in our country’s environmental law. The decision involves some new scenarios and interpretations of legislation and fundamental rights.

Subhash Kumar v. State of Bihar (1991)

In the case of Subhash Kumar v. State of Bihar (1991), petitioners had filed a public interest lawsuit against two steel companies, alleging that they dumped plant waste into the nearby Bokaro River, posing a health risk to the public. The petitioner also claimed that the State Environmental Protection Agency did not take appropriate measures to prevent such pollution. As part of their lawsuit, they asked the Court to bring legal action against the company under the Water (Pollution Prevention and Control) Act 1974 and sought permission to self-assess waste in the form of sludge and manure collected as interim relief. The State Pollution and Control Board claimed that it adequately monitored the quality of sewage entering the river; the defendant companies claimed they followed the Board’s instructions concerning the prevention of pollution.

The Court found that the Board had taken effective steps to prevent the waste discharge from the factories into the river and dismissed the lawsuit. In addition, it has been determined that the petition does not qualify as a public interest lawsuit because of the petitioner’s interest in obtaining larger quantities of waste in the form of slurry from one of the defendant companies from which he began to purchase slurry several years prior to the petition.

M.C. Mehta v. Kamal Nath & Ors. (1996)

In the case of M.C. Mehta v. Kamal Nath & Ors. (1996), the issue started when the Indian Express published an article reporting that a private company- Span Motels Private Ltd., had launched a project called Span Club. The article caught the attention of the Supreme Court. The company owner had direct contact with the family of former Minister of Environment and Forests, Kamal Nath. By the time Kamal Nath was a minister in 1994, Span Motels had occupied 27.12 acres of land, including forest land. The motel used bulldozers to change the course of the river Beas and divert the river’s flow. The river was diverted to protect the motel from future flooding. The question raised was whether the construction activities carried out by the motel company were reasonable.

However, the Supreme Court ruled that the state’s forest lands leased to the motel were on the banks of river Beas. The area is ecologically fragile and should not be turned into private property. This case applies the principle of public trust, which stipulates that the public cannot use rivers, coasts, forests, air, and other properties. The motel was ordered to pay damages and erect a wall no more than 4 metres apart. The Court also banned the motel from discharging untreated effluent into the river and asked the HP Pollution Commission to keep a check on it.

Samir Mehta v. Union of India (2017)

In the case of Samir Mehta v. Union of India (2017), an environmentalist filed a claim for damages from the sinking of a ship named M.V. Rak, carrying large quantities of coal, fuel oil, and diesel. When the ship sank on Mumbai’s southern coast, a thick layer of oil formed on the sea surface, causing major damage to mangroves and marine ecosystems.

The Court ruled that the sinking of the ship was due to the negligence of the defendants and ordered defendants number 5, 7, and 11 to pay Rs 100 crores to the Ministry of Shipping, Government of India (GOI), which is till now one of the largest sums paid by a private entity for environmental damage caused.

It remains the largest compensation payment to the government by a private entity.

A global perspective on environment laws

United Nations Conference on the Human Environment, Stockholm, 1972

The United Nations Conference on the Environment, held in Stockholm in 1972, was the first world conference to focus on environmental issues. Participants adopted many principles for sound environmental management, including the Stockholm Declaration and the Action Plan for the Human Environment, as well as various resolutions. The Stockholm Declaration, containing 26 principles, brought environmental issues to the forefront of international attention, marking the beginning of a dialogue between developed and developing countries about the links between economic growth, air, water, and ocean pollution, and the well-being of people across the world.

World Conservation Strategy: Living Resource Conservation for Sustainable Development, 1980

The World Conservation Strategy, 1980 was the first international document on the conservation of biological resources developed with the participation of governments, NGOs, and other experts. The Report argues that for the development of sustainability, it should support rather than hinder conservation. Its underlying principles are the conservation of ecological processes and life support systems, the conservation of genetic diversity, and the sustainable use of species and ecosystems, and are aimed at political decision-makers, conservationists, and development practitioners. It highlights priority conservation issues and ways to address them to achieve this strategic objective.

Brundtland Report, Our Common Future, 1987

The Brundtland Report stated that serious global environmental problems are mainly caused by extreme poverty in the South and unsustainable consumption and production patterns in the North. It called for a strategy that integrates development and the environment. The main focus of the report is on sustainable development. It defines sustainable development as meeting the present’s needs without compromising future generations’ ability to meet their own needs. In 1989, the report was debated at the United Nations General Assembly, which decided to organize a United Nations Conference on Environment and Development.

United Nations Conference on Environment and Development (UNCED), The Earth Summit, Rio de Janeiro, 1992

The Rio de Janeiro conference emphasizes how different social, economic, and environmental factors are interdependent and co-evolving and how success in one sector requires actions in other sectors to be sustained over the period. The main goal of the Rio Earth Summit is to develop a broad agenda and a new blueprint for international action on environment and development issues that would help cicerone international cooperation and development policy in the 21st century.

Earth Summit +5, United Nations General Assembly, New York, 1997

The Commission Sustainable Development (CSD) was established to monitor and report on the implementation of the Earth Summit Agreement and agreed to a five-year review of Earth Summit progress at the 1997 UN special session. This special session of the UN General Assembly assessed the responses of countries, international organizations, and sectors of civil society to the Earth Summit challenge.

World Summit on Sustainable Development, Johannesburg, 2002

The World Summit on Sustainable Development, held in Johannesburg in 2002, adopted a Political Declaration and Implementation Plan that contained provisions for various activities and measures to achieve development that respects the environment. The Summit was attended by more than 100 heads of state and government, as well as tens of thousands of government representatives and NGOs. After several days of deliberation, decisions were made on issues such as water, energy, sanitation, agriculture, and biodiversity.

Conclusion

In India, the disquiet for environmental protection has not only risen to become the country’s fundamental law but is also linked to the human rights policy, and it is now widely believed that the basic human right of everyone is to live in a pollution-free environment. A friendly environment is full of human dignity. It is time for the public, the public institutions, states, and Central Government to recognize the damage our development process is doing to the environment. Strict enforcement is also required. Laws are a powerful medium for enforcing citizens to observe cleanliness and thus fight pollution. Environmental protection laws in India need to be repositioned in a modern context.

However, it is important to understand that such enactment is not enough until a positive attitude on the part of everyone in society will be seen.

Frequently Asked Questions (FAQs)

Who is in charge of making environmental laws in India?

The Ministry of Environment and Forests (MoEF) was set up in 1985 and is now the highest administrative body to oversee and safeguard environmental protection and establish a legal and regulatory framework for this purpose. Several environmental laws have been enacted since the 1970s.

Does India follow strict environmental laws?

The laws in India are not very strict; however, water and air pollution is a major problem as harmful substances are dumped into water bodies, and harmful emissions are largely unabated in India. The laws governing these activities have not been updated since they were first enacted in the mid-1970s and 1980s. These laws provide for water/groundwater use permits/permits, compliance with wastewater and discharge standards, and prohibition of polluting water resources.

Why does it seem like environmental laws fail most of the time?

There are several factors such as poor coordination among government agencies, weak institutional capacity, lack of access to proper information, corruption, and stifled civic engagement are key factors contributing to inefficiency and poor enforcement of environmental regulations.

References

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How big techs are faring against us lawsuits and probes

By

Sneha Mahawar

-

July 12, 2022

0

This article is written by Bikramjit Chatterji a student of Amity Law School, Kolkata pursuing a Diploma in Law Firm Practice. This article has been edited by Ojuswi (Associate, Lawsikho).

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

Big Tech Companies in the USA have been hit with a series of antitrust lawsuits by the U.S. Federal Government and they say that these big tech companies are operating in monopolies and abusing the power that they have. This is especially scary, considering all the data that they have of almost every person in the world because many people from across the world use their platforms on a daily basis. So abusing or misusing that power is not a huge problem for many of these big technology companies which many of these companies are doing. From selling user data to companies to selling user data to political parties, these companies have done it all. Considering the kind of power that they have in their hands, it is easy to say that they can misappropriate it and misuse it as and when they want. So considering all this power that these companies have, we need stronger regulations and better control on these companies, to keep checks on them so as to make sure that they don’t misuse their power all the time. Sure they are running into lawsuits even now, but that is only after someone finds out what they have done but that doesn’t mean that they are not getting away with a lot of the stuff that they are doing. The reason behind writing this article is to make everyone understand what these big tech companies are doing in the USA and what actions are being taken against them.

What are antitrust lawsuits

Several countries have laws in order to level the playing field for companies to operate their business and protect the consumers in it. The goal of these laws is to protect consumers from a single company gaining too much power and creating a monopoly. This law also prevents the big companies from gaining too much power over their competitors so as to not eliminate them from the competition. Basically, these antitrust laws prevent a company from playing dirty and putting all the profits in their pocket. Antitrust laws are often referred to as competition laws developed by the U.S government to protect consumers from predatory business practices. This is to ensure fair competition in the open market economy. But these laws have evolved with time and with the ever-changing market so as to protect companies from becoming monopolies. Antitrust laws are applied to a wide range of business activities, mostly questionable in nature, like bid-rigging, price-fixing and monopolies. However, if these laws didn’t exist, they would create a lot of havoc because competition in the market would cease to exist and consumers would be forced to pay exorbitantly high prices or would have access to a limited supply of products and services.

What are big tech companies

Big Tech, who are also known as the Tech Giants or the Big Four or the Big Five are the kind of names which are given to the present four or five of the largest, most dominant and most prestigious companies in the Information Technology space in the United States of America. The Big Five consists of Google, Amazon, Apple, Meta or as it was previously called Facebook and finally Microsoft taking the fifth place. These tech giants are the goliaths in their playing fields, almost unbeatable in them with no competitor even in sight. These players are in the space of e-commerce, online advertising, consumer electronics, cloud computing, computer software, media streaming, artificial intelligence, smart home, self-driving cars and social networking. Not only this, but they also have the most valuable companies globally, each with a maximum market capitalization of around $1 trillion to $3 trillion. On top of this, they are considered one of the most prestigious employers in the world. These big tech companies are offering services to millions of people which is why they can sway user behaviour and also control user data as and how they want. Concerns related to monopolistic practices have led to a lot of antitrust investigations being held by the Department of Justice and the Federal Trade Commission in the United States and the European Commission. Many have questioned the impact these companies have on privacy, market power, free speech, censorship, national security and law enforcement. However many people are predicting that maybe it is not possible to live in a digital ecosystem without using the services of these big 5 tech giants.

Market dominance

These big tech companies have replaced several energy giants such as ExxonMobil, BP, Gazprom, PetroChina, Chevron and Shell from the first decade of the 21st century from the top of the NASDAQ stock index. They have also left behind some of the traditional big media companies such as Disney, Warner Bros, Discovery, and Comcast. In 2017, five of the biggest IT companies in the USA had a combined net worth of $3.3 trillion and they alone made up around 40% of the total value of NASDAQ 100. But the reason that these companies have still remained popular among the common masses is that they provide most of their services to the general public for free, making them highly appealing to the general public.

Introduction about the companies

Though these companies are pretty well known to the general public and there is no need to say anything more about them, here is a short introduction to these companies:

Google

Google is the leader among search engines, online video streaming websites, email service websites, web browsing, online navigation-based mapping, mobile operating systems and cloud storage as well as several other services that they provide. Google Cloud is in third place in online storage facilities, also called cloud storage after two other giants: Amazon and Microsoft. Both Google and Meta hold a kind of duopoly on the market of digital advertising and Google’s advertising services make up 82% of their revenue and profits.

Amazon

By the year 2017, Amazon was the dominant player in the e-commerce business, holding 40.4% market share. Their cloud computing division held 32% market share and their live streaming platform, Twitch, held around 75.6% market share. Their game-changing AI technologies such as Amazon Alexa and Amazon Echo also made market leaders in the area of artificial intelligence-based personal digital assistants and smart speakers where Amazon Echo comes into play. They hold about 69% market share in this field with Google’s Google Nest taking another share of 25% and other players sharing the bread crumbs.

Apple

Apple is known in the smartphone market for selling high-margin smartphones and other electronic devices sharing a kind of duopoly with Google in the field of mobile operating systems. Apple has around 27% share of the market and Google has around 72% market share.

Meta (previously known as Facebook)

Meta Platforms, as it is known now and as it was formerly called as Facebook up until October 2021 when the name was changed. This company is a social networking giant and I am sure that everyone reading this article has an account on this social networking account or has had one at some point in time. They have been the most popular social media platform for the past decade and they are now the owners of Instagram, another social networking platform and WhatsApp, an online messaging platform. Meta had also acquired Oculus in 2014, leading to their entry into the virtual reality market as well.

Microsoft

Microsoft has been and is still dominating the desktop operating market with their product: Microsoft Windows and their office productivity software called Microsoft Office. Microsoft is the second biggest in the cloud computing industry with their product Microsoft Azure right after Amazon and is also one of the most prominent players in the video game industry with their product Microsoft Xbox. Microsoft is also a dominant player in the enterprise software business with their product Microsoft 365 which is also available to normal consumers and business collaboration software like Microsoft Teams.

Antitrust legislation and investigations

In the United States of America, there has been antitrust scrutiny and there have been investigations of members of the Big Tech companies which began in the late 1990s and early 2000s, with one of the first and major antitrust lawsuits being against a member of the Big Tech in 2001 when the U.S. Government accused Microsoft of illegally maintaining its monopoly position in the personal computer (PC) market primarily through the legal and technical restrictions that they imposed on other PC manufacturers, mostly OEM’s. It also barred users from being able to uninstall Internet Explorer and use other programs such as Java and Netscape. During that trial, the district court ruled that Microsoft’s actions constituted unlawful monopolization under Section 2 of the Sherman Antitrust Act of 1890 and the US Court of Appeals confirmed most of the judgements made by the District Court. But on 6th September 2001, the Department of Justice announced that they were no longer looking to break up Microsoft and would instead impose a smaller antitrust penalty on them. In this settlement, Microsoft agreed to share its application programming interfaces with other third-party companies and would also appoint a panel of three people who would always have full access to Microsoft’s systems, records and other source codes for five years in order to showcase compliance. On the 1st of November, 2002, Judge Kollar-Kotelly released a judgment accepting most of the proposed DOJ settlements and on the 30th June, 2004, the U.S. appeals court approved the settlement that Microsoft made with the Department of Justice in a unanimous vote.

But this wasn’t the end of antitrust legislation and investigations against the Big Tech companies and there were similar lawsuits in the late 2010s and early 2020s. This is when they again came under the radar of the Department of Justice and the United States Federal Trade Commission. This included requests related to providing information about prior acquisitions and potentially anti-competitive practices being practised. Some of the Democratic candidates running at that time proposed breaking up the Big Tech companies and regulating them as utilities.

Facebook’s antitrust lawsuit

According to the US Government, Meta or previously known as Facebook is becoming a social media monopoly. Concerns related to that led to an antitrust lawsuit in December 2020 when the Federal Trade Commission (FTC) and 46 other states decided to jointly sue Facebook, accusing the company of buying up all its competitors, mostly WhatsApp and Instagram to eliminate competition in the social media industry. This antitrust lawsuit by the FTC was mostly based on these two major accusations. But surprisingly, the lawsuit didn’t go far because 6 months into the lawsuit, the federal judge assigned to the case threw the case out saying that FTC had not given enough evidence to support this claim and the agency was given 30 days more to present their case. However, the agency never provided any more data which led to the case coming to a closing.

Google’s antitrust lawsuit

US Antitrust officials decide to file a case against Google for the second time related to a monopoly lawsuit over the company’s digital advertising business because Google is suspected of abusing its dominance. It is believed that Google is the most powerful advertising technology company on the planet with amazing financial results. Alphabet which is the parent company of Google outperformed at the end of 2021 with amazing revenues where they boosted their revenue to 32% which is up to $75 billion and also saw a nice bump in its share price as compared to its other competitor: Meta. Coming back to the lawsuit, in the lawsuit there were allegations against Google for misappropriating user data and lying about how they use user data. The lawsuit also said that their advertising fees were much higher than the competitors, roughly around 19% to 22% more. The lawsuit also said that Google forced publishers to adopt both its ad server and its ad exchanges in the early part of 2018. This could lead to Google getting way too much data about the businesses and leading to them manipulating the playing field as and when they want. There were also allegations of Google having a backroom deal with Facebook over application advertisement inventory which means that they have a deal with Google where they get an upper hand when it comes to showing advertisements in mobile applications which are not owned by Facebook themselves. However, these advantages are not provided to the other players in the market.

Conclusion

The journey of Big Tech Companies hasn’t been easy in the USA. They have hit several roadblocks along the way and even though they are the biggest company in the USA currently, they have had their fair share of anti-trust lawsuits. Giants like Google, Microsoft and Facebook had to be dragged to court due to anti-trust lawsuits due to which their reputation got hampered and they lost money on the capital market as well. From getting accused of monopolizing the market, to buying all the competitors to charging extra in case of advertisement fees, they have faced it all. But still, the question we often beg to ask is, can we live without these technology companies? The answer is no, without them our daily lives will come to a halt as we do not know a life without social media, e-commerce websites, search engines and operating systems. So the answer to this problem is that these technology companies need to be regulated and it needs to be made sure that these companies respect user data, don’t misuse them and don’t monopolize the market to eliminate many worthy competitors.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

Bill of Rights, 1689

By

Sneha Mahawar

-

July 12, 2022

0

This article is written by Shiwangi Singh, a law student from Banasthali University. This article deals with the issues and struggles that prevailed in the United Kingdom for protection of interests of the citizens. It talks about the birth of Constitutional Monarchy which restrained and controlled the power of the crown for a good cause, Parliament coming into power, and the absolute monarchy being demolished.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

Human Rights are the basic rights that one has simply because one is a human being. These rights are inherent with which a person is born in the world and are equal and inalienable rights. Human Dignity is the base on which these rights lie to protect and safeguard human dignity.

The term ‘Human Rights’ is a modern term, but the principle of human rights draws its roots from age-old society, ever since the creation of humanity. People like philosophers and peace lovers, who worked for humankind and created the wave of human rights, believed every person should enjoy equal rights. These beliefs however emerged due to a feeling of brotherhood, religious teachings, injustices against women, children, war victims, genocide, slavery, and ethnic cleansing which had no legal basis but were only considered moral claims. Later with time, with struggles and protests, the Bill of Rights was incorporated in the constitution of various countries across the world.

Historical textbooks like the Vedic texts, the Puranas, Mahabharata, Arthasastra, and Manusmriti all deal with human rights, about how a kingdom should function, when and when not a war should take place, and they all talk about civil and legal rights. Universal equality was believed even at that time. Gautam Buddha believed in equality and preached his teachings for the well-being of the people without any discrimination on the grounds of social position, power, wealth, or gender, he was the first to include women in the Buddhist sangha.

Historical background of the Bill of Rights

In 1685, after the death of Charles II, the throne was acceded by his brother James II. This was a period when there was extreme tension between the Catholic Christian and the Protestant Christian, James II himself a Catholic wanted to make Catholicism a state religion during a time when Britain was dominantly occupied by the Protestants, but being the king he wanted to suppress the Protestants and wanted to set Catholicism at a great level.

Key difference between Catholics and Protestants

Catholicism	Protestantism
They believe in Christ, Mother Mary, and all other great saints that have lived before in Christianity.	They believe only in Christ and consider ‘the Bible’ as their ‘sola scriptura.’
They believe in performing rituals and carrying out symbolic actions in worship.	They follow no tradition.
They consider the ‘Pope’ as their head of the worldwide church to whom they would listen and carry out rituals.	They consider no one as their head but only Jesus Christ.
They believe that salvation could be attained through Christ and following rituals and traditions.	They believe salvation could be attained only through Jesus Christ.
They believe in idol worship.	They don’t believe in idol worship nor do they have idols in their Churches.

There was also considerable friction between the monarchy and the British Parliament. In 1685, King James II discontinued the sessions of the Parliament and recruited many Catholics to various public offices. He believed in the supremacy of freedom of worship for Catholics and appointed Catholic officers to the army. On 5 April 1687, King James II issued a ‘Declaration of Indulgence’ which suspended the religious penal laws; this declaration was made by him without the approval of the Parliament, which showed how he wanted an absolute monarchy. He also increased tax payments to maintain his standing army which brought him into conflict with the Parliament.

The daughter of James II, Mary, was raised as a Protestant and was the rightful heir of the throne until 1688 when James had a son, James Francis Edward Stuart, whom he announced would be raised Catholic. This led to widespread fear of Catholic succession in England for years, and this created outrage among the people and also in the Parliament.

At this point, many eminent leaders of the Parliament wrote to the Dutch leader, William of Orange, a Protestant and husband of Mary, to invade England which would in turn make him the King. William was already planning to take military action against England and this proposal served him as an additional propaganda motive.

After the invasion, James escaped to France where he later died in exile and this eventually made William the King. In 1689, the new Parliament now known as Convention Parliament met and declared William as their King and Mary as their Queen. The King and Queen did not have the powers of absolute monarch now, they had to consult the Parliament before passing any laws. Before William and Mary could be proclaimed king and queen they had to agree to accept the Bill of Rights, which they did in February 1689.

This revolution in history is known as ‘the Glorious Revolution ’, or the Bloodless Revolution took place from 1688 to 1689 in England. It marked the birth of the Constitutional Monarchy where the powers of the Crown were controlled and limited by the Parliament. It planted the seeds for political democracy.

Other historic incidents related to Human Rights

The Tablet of Hammurabi

This was the first codification of all types of laws done by the Babylonian King Hammurabi who lived about four thousand years ago. It is the most complete and extant collection of Babylonian laws which consisted of fair wages, protection of properties, proportionate punishment, justice, and standards on how to live and treat each other. The 282 laws that he created became the basis of the laws that evolved in the West.

Positive law by Thomas Hobbes (1588-1679)

He was the first person who argued that human beings are blessed with their inherent rights because they are human beings and they have the right to live. Positive law stated that law and human rights come from the state.

John Locke (1632-1704)

He said that all the laws of the state stemmed from a constitution, the legal framework of the society. His three main arguments were:

Everyone has access to their natural rights which are the right to life, liberty, and property.
Governments should be formed by the people, who would protect their rights from criminals.
In case the Government fails to carry out its duty, abuses its power or violates its natural rights then the citizens should be empowered to revolt or overthrow the government.

This became a very effective idea behind the American and French revolutions and the subsequent American Declaration of Independence. It also greatly influenced the Bill of Rights 1689.

Magna Carta (1215)

Magna Carta, meaning ‘ The Great Charter ’, is one of the most famous documents in the world. It was the first document to be put into writing issued in June 1215, It stated the principles of governance saying that the king and his government were not above the law. It sought to prevent the king from exploiting his power and placed limits on royal authority by establishing law as a power in itself. It also influenced the United States constitution.

It marked the start of a democratic rule by:

It limited the powers of the Crown.
No one can be convicted for any crime without any trial done by the jury and would be punished according to the law.
It prohibited the king from levying taxes and capturing properties without the consent of the Parliament.

French Declaration of the Rights of Man and Citizen (1789)

It marked some of the very important features:

Men are born and remain free and equal in rights.
Political associations can only be formed with the motive of preserving the natural and inalienable rights of man. These rights are liberty, property, security, and resistance to oppression.
The law has the right to prohibit those actions which tend to harm society.
No man shall be detained, or arrested except in the cases determined by the law and by following the procedure mentioned in the law.

Every citizen is free to speak, express, write and print their thoughts freely.

The U.S Declaration of Independence (1776)

This document announced the separation of thirteen North American British colonies from Great Britain. The people in the colonies were unhappy that they did not have a say in their government and still had to pay taxes. A famous phrase quoted from the declaration is “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness.”

The 1791 U.S. Bill of Rights guarantees:

Freedom of speech, freedom of religion, and freedom of the press
People will not be unlawfully convicted for the crimes and would undergo a proper trial by the jury which would protect the people from cruel and unusual punishment.
It would also protect people from unfair imprisonment.

The Constitution of India

The Indian fight for freedom was also carried out to give the people their natural rights, during the freedom struggle great nationalist leaders promised the Indians that they would be bestowed with equal rights and opportunities after the Independence, and this promise was kept. The Part III of the Indian Constitution embodies the fundamental rights bestowed upon the people of India. These are the right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, right to constitutional remedies, right to privacy, and many others. Part IV of the Constitution, called the Directive Principles, is aimed towards the welfare of the citizens based on justice in social, political, and economic life.

The UN Charter and the United Nations

The first half of the twentieth century was marked with unimaginable suffering, brutality, and cruelty. The century began with the First World War, which led to the formation of an international body, the League of Nations, in 1919, to promote international cooperation, peace and security and to prevent the outbreak of another war. However, the League of Nations failed terribly in preventing the Second World War. The magnitude of destruction in the Second world war was immense to shock the conscience of humanity at a worldwide level. Seeing the consequences of the second world war 50 nations met in San Francisco in 1945 and formed the United Nations Charter, later on, 24th October 1945 The United Nations came into existence. Human Rights were first clearly depicted in the Preamble of this UN Charter. It stated, “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and nations large and small”. The term ‘human rights’ came into wide use after World War II.

Purpose of introducing the Bill of Rights

The Bill was introduced to fill many purposes, which were:

The Bill laid down many rules which limited the powers of the Crown, because the people of England had witnessed the consequences when whole power was entirely vested in the hands of their previous ruler King James II, who levied heavy taxes, interfered into the decisions of the Parliament, gave no religious freedom to the Protestants and was always focused to have an absolute monarchy. It hampered the peace and the Rights of the people.
The Bill was articulated with Articles that were primarily focused on the redressal of the grievances caused by King James II.
The Bill was brought up to give the people their natural rights, individual rights like freedom of speech, freedom to petition the monarchy, and many others.
This Bill ensured religious freedom of the Protestants who were suppressed by James II, deprived of their religious freedom, and were not allowed to keep arms. To destroy the religious orthodoxy created by James II, the Parliament persuaded William of Orange who was a Protestant, so that the throne gets a Protestant successor. This safeguarded the religion which was getting suppressed day by day in the prior rule.
It also stated the separation of powers between the Parliament and the Crown, where the King cannot take decisions without referring them to the Parliament, making the Parliament more independent and the King more dependent.

Provisions of the Bill of Rights

The Bill of Rights, 1689 is an English Act of Parliament with the full title ‘An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown’, the name itself gives us an idea about the provisions that it would have in it.

The Provisions of the Bill can be divided into three segments which were:

The misdeeds done by King James II.
The articles made for the protection of liberties and the law of people are known as the ‘Declaration of Rights’.
A long oath taken by the Prince and the Princess as co-rulers, that confirmed their accession to the throne.

The document began by mentioning that all states are now fully, lawfully, and freely represented in the presence of the prince and princess of Orange William and Mary. It mentioned various misdeeds done by late King James the Second who with help of his evil counsellors, judges, and ministers employed by him tried to undermine the power and authority of the Protestant religion and also harmed the laws and liberties of his kingdom, and they were:

King James exploited his power in dispensing and suspending laws without taking approval from the Parliament.
He issued a commission and for erecting a court called the Court of Commissioners for Ecclesiastical Causes that included spiritual and religious matters of the Church.
He levied high taxes for the benefit of the Crown.
He kept a standing army in his kingdom at the time of peace without the consent of the Parliament.
He did quartering of soldiers, which means he assigned soldiers to private houses without the consent of the owners who would, in turn, have to look for their maintenance and lodging, and this was not allowed according to the law.
He disarmed many protestants at the same time when he allowed arms for the Catholics and also employed them.
He violated the freedom of election of members to serve in the Parliament.
He prosecuted and gave decisions on many matters which required the decisions of the Parliament.
He imposed excessive fines.
He gave illegal and cruel punishments to the people.
He imposed many fines and captured valuable properties of people even before they were convicted for a crime and presented before the jury for a trial.

After this, it talked about the new rules and regulations that would be imposed, and they were:

The Royal or Regal authority cannot suspend any law or execute any law without taking approval from the Parliament, it would be considered illegal.
The Royal authority cannot provide new laws and execute them like the late King James, it would be illegal.
Commissions like the one which constructed the late Court of Commissioner for Ecclesiastical causes, and courts like these will be considered illegal and harmful.
The King cannot keep a standing army in his kingdom during the time of peace without the consent of the Parliament.
The Protestants can keep arms with them for defence and as allowed by the law.
The Royal authority cannot levy money for the use of the Crown without the consent of the Parliament. The monarch can no longer levy taxes, only Parliament could do this.
The members of the Parliament would be elected freely by the choice of the people, and they would have the freedom to elect their representatives freely.
People have the freedom of speech and debate.
People have the right to petition their matters even in front of the King, and prosecuting someone just for petitioning would be considered illegal.
No excessive fines would be imposed nor cruel and unusual punishments would be given to the people.
Parliament has the freedom of speech and the Court does not have its jurisdiction over something that is discussed in the Parliament.
The grants and promises of fines and forfeitures of a particular person before a conviction would be illegal and void.
For the redressal of all the grievances caused before, and for the amending, strengthening, and preserving of the laws, Parliament would be summoned frequently.
Roman Catholics could not be the king or queen of England since it was observed that it wasn’t helpful for the safety and welfare of the Protestants.

It was also declared that the flight of King James II will be considered his renouncement to the throne. After this King William and Queen Mary took the oath as co-rulers of England and ensured that the throne would pass from William and Mary to their heirs. This Bill was presented to them on February 13th, 1689 and was enacted later, on December 16th, 1689.

It was said that The Bill of Rights apart from determining the succession to the throne did set forth some certain points of existing laws and it simply secured the rights of the Englishmen which they already had possessed. Geoffrey Lock in one of his articles stated that the articles of the Bill of the Rights worked as a program for future legislation. The articles mentioned in the Bill of Rights are not a substantive law therefore the Parliament has to get back on it, elaborate, and work on it to convert them into full-scale statutes.

Constitutional monarchy

The English Bill of Rights set the stage for a constitutional monarchy in England, which means the king and queen acts as a head of state but their powers are limited by law. Under this system, the monarchy can not rule without the consent of the Parliament, and the people are given individual rights. Likewise, the two leaders formed a joint monarchy and agreed to give Parliament more rights and power.

In modern-day British constitutional monarchy, the king or queen plays largely a ceremonial part but is represented as the head of the state with great dignity.

Legacy of the English Bill of Rights

The Bill of Rights 1689 was later supplemented in England by the Act of Settlement 1701.

The constitutions of many other countries derived their inspiration from this Bill of Rights. Examples are; the American Declaration of Independence, the Articles of Confederation, the U.S. Constitution, the U.S. Bill of Rights, the European Convention on Human Rights, the United Nations, and the Universal Declaration of Human Rights.

Some of the similarities are like the U.S. Constitution requires jury trials and prohibits excessive bail and cruel and unusual punishments. The same cruel and unusual punishments are banned under Article 5 in the Universal Declaration of Human Rights and Article 3 of the European Convention on Human Rights.

The articles of New Zealand also hold similarities to the Bill of Rights, as it is stated in Article 1 that no regal authority can suspend or execute laws without the permission of the Parliament. This was cited in one of the cases where the Prime Minister of New Zealand Muldoon was challenged in the court for his decision of abolishing a superannuation scheme established by the New Zealand Superannuation Act, 1974. The Chief Justice of New Zealand mentioned that he had violated Article 1, and his actions were called illegal.

In 1989, two special designs of British two pounds coins were issued to celebrate the tercentenary (three hundredth anniversary) of the Glorious Revolution, one referring to the Bill of Rights and the other to the Claim of Rights. Both the coins had the representation of William and Mary and mace of the House of Commons, one showed the representation of St. Edward’s Crown and the other, the Crown of Scotland.

Conclusion

The Bill of Rights 1689 and the Magna Carta were the two pioneer documents in history that regulated the relations between the Crown, the people, and the Parliament. It showed us how power vested in a single hand could lead to its great misuse. The monarch’s powers got to be controlled by the Parliament and made it a dependent body on the Parliament which would ask for its approval on every matter. The whole world has fought for its civil rights and liberties whether that is India, England, or America. Restraining the rights of the people always leads to great consequences which have been depicted by the struggles of these countries. The English Bill of Rights has also worked as a pioneer for the Constitution of many other countries; the same rules have been picked up by the other countries too. The Bill of Rights started the rule of constitutional monarchy in Great Britain. It depicted that a monarchy cannot rule without the consent of the Parliament. Therefore, this bill increased the strength of the Parliament and decreased the strength of the Crown. It acted as a stepping stone for modern-day democracies.

Frequently Asked Questions (FAQs)

What are the similar points in the English Bill of Rights and the American Declaration of Independence?

All men are created equal and have the right to life, liberty, and the pursuit of happiness, these are unalienable rights that cannot be taken away by the government.
Governments obtained their power from the consent of the people.

What was one of the concerns behind the creation of the Bill of Rights?

To restrain, control, or limit the power of the Crown the Bill of The Rights was created, because the CRown retained too much power.

Which king and queen signed the Bill of Rights before being sworn in?

King William of Orange, a dutch leader, and Queen Mary signed the Bill of Rights before being sworn in.

Name the most important Article of the 1689 English Bill of Rights?

Frequent summoning of the Parliament and free elections.
No taxes would be levied without the authorization of the Parliament.
Laws could not be made or removed without the approval of the Parliament.
Monarchs can’t interfere with Parliamentary elections and debates.

The Bill of Rights was followed quickly by which act and what was its purpose?

It was followed quickly by the 1689 Mutiny Act, which limited the maintenance of a standing army during peacetime to one year.

References

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Article 280 of the Indian Constitution

By

Rachit Garg

-

July 11, 2022

0

This article is written by Gauri Saxena, an LLM student from Dr. DY Patil College of Law, Navi Mumbai. This article covers exhaustive research on Article 280 of the Indian Constitution and everything you need to know about the Finance Commission.

It has been published by Rachit Garg.

Table of Contents

Introduction

When the Constitution of India was being framed, a need for a body to regulate the distribution of tax proceeds between the union and states and among states was felt as per the arrangement provided by the Constitution and contemporary requirements. In order to fulfill their commitments, states incur expenses that are out of proportion to their earnings, which causes vertical disparities between the union and state governments. But states are more effective at addressing these issues because they can more accurately serve the interests and worries of their people.

Various historical contexts or resource donations lead to horizontal imbalances between state governments, which can grow over time. The law minister in charge at that time, Dr. B.R. Ambedkar, decided to overcome these disparities by establishing the Finance Commission. Therefore, on November 22, 1951, Article 280 was added, which brought the Finance Commission into force with its headquarters in New Delhi.

The Finance Commission

The Finance Commission is a constitutional body since it is mentioned in the Constitution of India and is there to carry out additional functions. It serves additional purposes and can be altered or added to without a constitutional amendment, not by some regular bill. The Indian Constitution serves as a basis for the capabilities and standards of the constitutional bodies. Compared to other organizations or bodies operating in India, these organizations are regarded as being more remarkable, strong, and superior.

Hence, a constitutional amendment is necessary if the authority of activities pertaining to these bodies is to be changed in any way. It is quasi-judicial in nature. It is formed every five years or at an earlier time (if necessary) by the President of India. The Finance Commission has been provided in the Indian Constitution as part of the scheme for the division of financial resources between two different sets of governments. This Commission’s work is distinguished by two distinctive features: resolving vertical disparities between the central government’s taxation powers and expenditure commitments and equalizing all public services across states. Currently, the fifteenth Finance Commission, constituted in 2017, is going on with its chairman, N.K. Singh.

According to Article 280,

The President of India should lay out a Finance Commission in two years of the Indian Constitution’s reception and every five years thereafter.
The Commission shall be tasked with making recommendations to the President on:
1. allocation between the Union and the States of the net earnings of taxes that are to be, or maybe, divided between them; the distribution between the States of the respective shares of those earnings;
2. the principles that should govern grants from the Consolidated Fund of India to states;
3. or any matter assigned to the Commission by the President.
The Commission shall specify its method of operation and shall have such powers in carrying out its responsibilities as Parliament may grant by law.

According to Article 281, the rules that the Finance Commission will make are generally in similarity to the prerequisites of the Constitution as well as the reason for the move made on them, must be approved by the House of the People (Lok Sabha) and the Council of States (Rajya Sabha).

The Finance Commission works in collaboration with all the governments, which helps it formulate fiscal policies for the union and states. There have been fifteen finance commissions to date; each has its distinctiveness.

The President of India decides the tenure of the members of the Finance Commission, and in specific conditions, the members are appointed again. The members should serve on the Commission part-time or full-time as the President mandates.

The members are paid as per the arrangements of the Constitution.

Key role of the Finance Commission

The critical capability of the Finance Commission in India is to go about as an instrument to split continues divisible taxes between the states and the union government or, in the instances of taxes that are gathered with the aid of the central government but the proceeds of which are dispensed between the states, to decide the standards of such allocation.
The Finance Commission of India also decides the ideas for administering the grants in aid of the earnings of states out of the consolidated fund of India. It is a fundamental quality of the Indian Finance Commission. The Commission has the obligation to ponder any matter being counted and alluded to the Commission by the President in the movement of sound finance.
Under Article 280, the President presents the Finance Commission’s ideas to each House of Parliament, along with the reasoning for the move to be taken in the light of the ideas.

Functions of the Finance Commission

The Finance Commission is responsible for making recommendations to the President of India concerning the following:

The principles governing the centre’s grants to states from the Consolidated Fund of India.
The appropriation of net tax earnings among states and the centre.
The Finance Commission assesses the increase in a state’s consolidated fund to include the resources of state panchayats and municipalities.
How can the resources of a state’s panchayats and municipalities be increased provided they are in line with the Finance Commission of the respective state.
The Finance Commission has enough authority to carry out its functions within the scope of its activity.
The recommendations of the Commission, as well as an explanation of the government’s actions in response to them, are established before the Houses of Parliament.
It can summon witnesses and request that any office or court produce public documents or records.

Composition

The Finance Commission consists of the following members:

Chairman

He is the leading member of the Commission and directs its activities. He ought to have previous experience in public affairs.

Members

The number of members, apart from the Chairman are four.

The qualifications of the Commission members, as well as their criteria, are statutorily determined by Parliament.

Appointment and qualification of the chairman and members

Appointment

According to Article 280 of the Constitution, the President appoints the Finance Commission. According to the Finance Commission [Miscellaneous Provisions] Act of 1951 and the Finance Commission (Salaries and Allowances) Rules, 1951, the Chairman of the Commission is chosen from among talented experts in public affairs, and the four other different individuals are chosen from among individuals who have the required qualifications.

Qualification

Are or have been, or the right fit for the appointment of Judges of any High Court; or
Have an exceptional mastery of Government funds and records; or
Have expansive learning of monetary issues and organizational arrangement; or
Have an intensive comprehension of financial matters.

Grounds for disqualification of the chairman and members

If any member of the Finance Commission is found to be:

of an unstable mind,
involved in a heinous crime,
If a conflict of interest arises,

Such a member is disqualified.

Articles dealing with grants

Article 275

This Article mentions the grants from the Union to certain states.

India’s Consolidated Fund will be required with so many totals as Parliament may by regulation propose as awards in help of the incomes of those states, as Parliament might find out that a state needs extra assistance and backing and separate totals might be set for discrete states.

Provided, however, that such capital and recurring sums may be essential to facilitate that state to cover all the expenses of such developmental projects as may be conducted by the state with the permission of the Scheduled Tribe in that state, or improving the level of management of the Scheduled Areas in that state to that of the management of the rest of the areas of that state, shall be compensated out of the Consolidated Fund of India as grants in aid of the revenue of that state.

Till the time Parliament makes statutory requirement under clause (1) the privileges bestowed on Parliament so under clause are redeemable by the President by order and also any order made by the President under this clause is susceptible to any provision made by the Parliament:

Given, however, that after the formation of the Finance Commission no order under this clause shall be released by the President unless the Finance Commission suggestions are taken into account.

Article 282

Article 282 of the Indian Constitution talks about discretionary grants.

The union or a state out of its revenues may make grants for any public purpose, despite that the objective is not one concerning which Parliament or the Legislature of the State, as the case may be, may make laws.

Here, no recommendation has to be made to the Finance Commission. Therefore, it can be said that this article lessens the powers of Article 280.

Fiscal Responsibility and Budget Management Act

The year was 2000 when the Atal Bihari Vajpayee government proposed the Bill on Fiscal Responsibility and Budget Management (FRMB) in India’s Parliament to give legal cover for fiscal discipline to be incorporated in the country. Finally, in the year 2003, the FRMB Act (hereinafter, the Act) was eventually passed. It affirms the goals for the government to define the financial discipline, improve public fund management, enhance fiscal responsibility, and reduce fiscal deficits.

Section 1 of this Act states that this Act applies to the whole of India.

Section 2 talks about the definitions of fiscal deficit and fiscal indicators as follows:

Definition of fiscal deficit

The excess of total payments from the Consolidated Fund of India besides the debt repayment over receivables into the Fund, apart from debt repayment, is called the fiscal deficit.

Definition of fiscal indicators

It refers to methods such as numerical ceilings and proportions of GDP that may be recommended for assessing the central government’s financial position.

Aim of the Act

The primary goal of this Act is to hold the union government accountable for making sure intergenerational fairness and justice in fiscal management and long-term macroeconomic equilibrium.

Objectives of the Act

Reduce fiscal deficit.
The goal for the government to establish financial discipline.
Provide efficient debt management and macroeconomic stability.
Transparency should be initiated in India’s fiscal management processes.
The long-term goal was to help implement a more efficient allocation of India’s debt.
Aimed at maintaining better coordination between fiscal and monetary policy.

The characteristics of the Act

It requires the government to submit the following documents to Parliament each year, together with the Union Budget:

Statement of medium-term fiscal policy

It outlines the three-year rolling targets for five distinct fiscal indicators in relation to GDP at market rates, which include revenue deficit, fiscal deficit, effective revenue deficit, tax to GDP ratio, and the amount remaining as Union Government Debt at the end of the year.

Statement on the macroeconomic framework

A description of the economy is given in the statement. An evaluation of the growth rate of GDP, the government’s fiscal position, and the economy’s balance in the external sector are all included.

Statement of the fiscal policy strategy

For the current fiscal year, it reveals the government’s priority areas for taxation, spending, loaning and making investments, prescribed pricing, loans, and guarantees.

It was proposed by the Act that the medium-term economic policy statement project the shortfall, fiscal deficit, government income, and total estimated liabilities as a percentage of GDP (Gross Domestic Product).

Effectiveness of the Act

This Act has been in effect for several years, however the government is yet to meet the targets set. It capped financial debt at 3% of the GDP. The Act has indeed been modified numerous times. The government made changes in 2013 by introducing the idea of a sufficient income shortage. This means that the effective revenue deficit is equal to the revenue deficit excluding the subsidies to states for capital asset creation.

The rules were also amended in 2018 and most recently to require a target of 3.1% for March 2023. In 2016, NK Singh formed a committee to suggest amendments to the Act and recommended that the government target a fiscal deficit of 2.5% by 2023. The government claims that the previous FRBM Act targets were too static.

NK Singh Committee

The chairman of the committee was former Revenue and Expenditure Secretary Nand Kishore Singh.
The report by NK Singh Committee was completed and submitted in 2017.
Due to the greater and sometimes adverse effects of fiscal policy on the economy, the NK Singh Committee on the FRBM Act came into being to practice fiscal prudence.
This committee came into being to focus on different factors that are required for determining the FRBM targets.

Recommendations of the NK Singh Committee

Replacement of the FRBM Act 2003 with the Debt Management and Fiscal Responsibility Bill, 2017.
By 2022-23, the union government’s debt to GDP ratio should be 38.7% and the state government’s should be 20%.
The fiscal deficit target should be 2.5% of the GDP by FY (Financial Year) 2022–23.
The debt path to be followed by each state based on their track record of fiscal health and prudence should be recommended by the 15th Finance Commission.
The proposed legislation makes borrowing from the Reserve Bank of India illegal except in the following circumstances:

The Centre must meet a temporary shortfall in receipts.
RBI subscribes to the government securities to finance any deviations from specified targets.
RBI purchases government securities on the secondary market.

Target commitments could deviate under certain circumstances, such as a national calamity, war, agricultural collapse, structural reforms in the economy, and real output being less than 3%.
The fiscal council’s responsibilities would include:

Preparing multi-year fiscal forecasts,
Recommending changes to the fiscal strategy
Improving the quality of fiscal data
Advising the government to take corrective action if the Bill is not followed.

The setting up of an autonomous fiscal council that deals with the preparation of multi-year fiscal forecasts, improves fiscal data quality, and could advise the government on fiscal matters.
Monetary and fiscal policies should complement each other and help achieve economic stability and growth.

Targets and Fiscal Indicators as per the FRBM Act

By March 31, 2021, the government must limit the fiscal deficit to 3% of the GDP by March 31, 2021.
The central government’s debt must be confined to 40% of the GDP by the year 2024–25.

Escape clause for the centre

Section 4(2) of the Act allows the Centre to surpass the annual fiscal deficit goal if certain conditions are met, such as:

National safety
War
A national disaster
Agriculture has failed
Reforms in the structure
A quarter of real output growth that is at least 3% lower than the previous four quarters’ average.

During the global financial crisis of 2008-09, the Centre used targeted fiscal stimulus, such as tax cuts to boost demand and higher spending on public projects to create jobs and public assets, to mitigate the effects of global stagnation. It resulted in a fiscal deficit of 6.2%, up from a budgeted target of 2.7%.

Types of deficits

There are three types of budget deficits in India, namely:

Revenue deficit
Fiscal deficit
Primary deficit

Before we understand each deficit in detail, it is important to know exactly what a deficit is.

A budgetary scenario in which spending exceeds earnings is referred to as a deficit. It is a practice adopted for financing excess expenditure with outside resources. The expenditure gap is financed by either the printing of currency (not followed in India) or borrowing (from RBI, international banks, or funding from the market in the form of government securities).

For example, if your monthly income and expenditure are 50K and 30K respectively, in a month due to an emergency or any other situation, you are supposed to make a payment of ₹40K.

In this scenario, due to your monthly expenditure of 30K, you are left with just 20K. To make the payment of 40K, you will borrow ₹20K from a bank or some external source.

This is a case of a deficit as the total expenditure in that particular month was ₹80K but your earnings were 50K (lower than the required amount).

The budget is divided into two parts: revenue and capital.

There are two types of income, or revenue: receipt and expenditure. Revenue is generated by using direct and indirect taxes as well as non-taxes. Salary and benefits, inventory, rent, electricity, insurance, stationery, postage, and taxes are illustrations of expenditure.

These are consumptions that neither make resources nor diminish an organization’s liabilities. It is recurring in nature and is very essential for maintaining the daily operations of a business or organization.

Capital is also of two types: receipt and expenditure. Capital receipt refers to the income generated from assets. For example, the selling of government property or its shares of PSUs (Public Sector Undertakings), etc. Capital expenditure means the amount spent on building assets like hospitals, roads, and airports.

A maximum part of the government budget is spent on revenue expenditure.

Revenue deficit (RD)

A revenue deficit is the excess of a country’s total revenue expenditure over its total revenue receipts. It just applies to the government’s income uses and income receipts (and not its capital expenditure or receipts). An income deficiency implies that the authorities need more income to run their departments conventionally. It forces the government to either disinvest or cover the shortage by borrowing.

In the case of a revenue deficit, the government usually tries to curtail its expenses or increase its tax and non-tax receipts. This can be done by introducing new taxes or increasing the tax on people in higher-earning slabs.

Revenue deficit = Total revenue expense – total revenue receipts

Fiscal deficit (FD)

The excess of total (revenue and capital) expenditure over total (revenue and capital) receipts, excluding borrowings, is called a fiscal deficit. It determines the amount needed by the government for its expenditures (i.e., schemes, etc., and not just to run the government). A huge fiscal shortfall infers a significant amount of borrowing, i.e., the distinction between total use and (revenue in addition to non-debt capital receipts).

It is calculated as a percentage of Gross Domestic Product (GDP), or as whole money spent exceeding complete income. In either case, the income figure consists of only taxes and different earnings and does not contain money borrowed to make up the difference.

Fiscal deficit = Total expenditure of the government – total income of the government

The government allocates funds in its budget for numerous initiatives, including payments of salaries, pensions, etc. (revenue expenditure) and the formation of property such as infrastructure, development, and so on in the expenditure segment (capital expenditure).

The income aspect comprises two variables:

revenue from centre-levied taxes and
income from non-tax variables.

The amount generated from corporation tax, income tax, customs duties, excise duties, and GST, among other things, constitutes taxable income. Meanwhile, non-taxable income is derived from external grants, interest receipts, dividends and profits, and receipts from the Union Territories, among others.

NOTE: A huge monetary shortage might be valuable to the economy in the event that assets are utilized to fabricate useful resources and not just to run the government, like expressways, roads, ports, and air terminals, which upgrade financial development and make occupations.

Primary deficit (PD)

A primary deficit is the fiscal deficit of the current year excluding the interest payments on previous borrowings. The financial shortfall mirrors how much is being borrowed by the government alongside interest installments. The primary deficit shows the amount of borrowing after subtracting interest payments.

For example, in year one, you take a loan of ₹50K on which you are required to pay interest of ₹5K every year. So, in the second year (counted from the year of borrowing), you will be paying ₹55K (50K+5K). And in the third year, you will be paying ₹61K (55K+5K). In this case, your primary deficit will be 50K as that is the actual amount you needed, while the additional 11K is the interest payment that is subtracted while calculating the primary deficit. Here, 61K is the fiscal deficit (the overall debt including the interest).

It portrays the fiscal deficit for a given year on the off chance that no interest was paid. It dismisses the preceding government’s loans in the proceeding fiscal year. It is worried about the welfare of our economy.

Primary deficit = Fiscal deficit – interest payments

Conclusion

As an independent body, the Finance Commission has filled a significant need and served a treasured purpose. It filled in as a specialist in cooperative energy in a troublesome and complex society like India for the smooth working of a federal system.

Frequently Asked Questions (FAQs)

Did the government of India use the pandemic as a reason for the increased fiscal deficit?

Yes, the COVID-19 pandemic has already been used by the government as a national calamity clause in the previous year.

Is the wealth tax direct or indirect?

Wealth tax comes under the category of direct tax.

Is it true that the union government has the liberty to dismiss the Finance Commission’s suggestions?

The union government has the option to reject or dismiss any suggestions made by the Finance Commission.

Do all states have different finance commissions?

Yes, all the states have a state finance commission.

Which states do not have separate finance commissions?

Mizoram, Meghalaya, and Nagaland have been exempted from forming the state finance commission.

The state finance commission is appointed by whom?

The state finance commission is appointed by the governor of the respective state.

References

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Economic rights

By

Rachit Garg

-

July 11, 2022

0

This article has been written by Naveen Talawar, a law student at Karnataka State Law University’s law school. The article deals with economic rights, international recognition of socio-economic rights and the enforcement of economic rights in detail.

It has been published by Rachit Garg.

Introduction

All people are given the same rights and dignity from birth which are universal moral principles that apply to everyone, regardless of caste, color, faith, place of origin, gender, cultural diversity, or any other factor. Because of their humanity, these concepts are inalienable and inherent in all humans. These expectations are outlined and defined in today’s notion of human rights. Human rights are often referred to as basic rights, inherent rights, natural rights, and birthrights.

The international human rights framework prioritizes economic rights. Economic rights are human rights and as such, as a result of our common humanity, belong to all people. In other words, everyone has an inherent right to the means necessary to maintain at least a basic standard of living. Freedom from deprivation and the associated level of personal security is crucial for billions of people. The best way to guarantee such freedom may be through economic rights. People can only fully develop their identities and contribute to society at their best through acquiring and implementing these rights. According to the Office of the High Commissioner for Human Rights, (OHCHR) economic, social, and cultural rights (ESCR) include the rights to sufficient food, decent housing, education, health, social security, participation in cultural life, access to water and sanitation, and the right to work.

Generation of rights

Human rights are usually classified into three generations in international law literature.

First generation rights

In order to shield people from arbitrary interference, the first modern constitutions defined rights primarily in terms of substantive or procedural limits on the exercise of state power. These rights included the rule of law, the right to a fair trial, personal liberty, and the freedoms of expression, assembly, association, and religion. These rights are now referred to as ‘civil and political rights,’ ‘rights of the first generation,’ or negative rights.

These early constitutions were viewed as representing a limited individualist version of freedom that was blind to social and economic inequalities because only civil and political rights were protected. According to the 19th-century French writer Anatole France, “The majestic equality of the laws prohibits the rich and the poor alike from sleeping under bridges, begging in the streets and stealing bread.”

Second generation rights

Many reformers believed that without changes in social and economic circumstances, civil and political rights offered little hope to common people whose lives were hampered by long working hours, low pay, harassment of union organizers, hazardous working conditions, susceptibility to arbitrary dismissal and cyclical or chronic unemployment, slum housing, and a lack of access to education and healthcare.

Since the late nineteenth century, and particularly in the new democratic constitutions that emerged after World Wars I and II, more emphasis has been placed on rights that safeguard employees from their superiors as well as rights defined in terms of positive entitlements, like the right to education and healthcare. These are referred to as ‘socio-economic rights’ or ‘second-generation rights’ (also “social, economic, and cultural rights”). Older literature usually referred to them as positive rights because they favored a positive interpretation of liberty as an ‘opportunity for thriving or well-being’ rather than a negative interpretation of liberty as only non-interference.

Third generation rights

A relatively recent idea, human rights for development first appeared in the 20th century. These rights provide people with the ability to participate in the process of global development, and they include environmental rights, which let people make use of nature’s free gifts of fresh air, clean water, food, and natural resources. These are referred to as Third Generation Human Rights. As their implementation is dependent on international collaboration, they are also known as Solidarity Rights.

The three generations also refer to a hierarchy of rights in terms of political choice, with the rights of the first generation being the most favored, followed by the rights of the second and third generations, respectively.

What are economic rights

Economic rights are those rights that guarantee people’s economic security. These enable all citizens to successfully exercise their civil and political rights. Basic needs for everyone include things like food, clothing, housing, healthcare, and so on. No one can really exercise their civil and political rights without these rights. Therefore, everyone must have the right to social security in the case of illness, physical disability, or old age in addition to the right to work, a living wage, leisure, and relaxation.

Economic rights are occasionally combined with social rights, and as a result, they are known by numerous equivalent expressions, including Economic and social rights, Social Rights, welfare rights, and socio-economic rights, and as a result, these terms are sometimes used interchangeably.

United States commentators use the term welfare rights, British commentators and social philosophers in general favor social rights, and those influenced by the terminology used in international law choose economic, social, and cultural rights. Although they are referred to in different ways, all of these are related to the same set of rights, which are the “right to a meeting of needs, the most basic of which is the right to a minimum income, the right to housing, the right to health care, and the right to education.“

International recognition of socio-economic rights

The Universal Declaration of Human Rights acknowledges two types of human rights: traditional civil and political rights, as well as economic, social, and cultural rights. The UN passed two separate Covenants, the Civil and Political Covenant and the Economic, Social and Cultural Covenant, to turn the Declaration’s contents into binding agreements.

The beginnings of economic and social rights may be traced back to religious traditions that required care and protection for the poor, destitute, and crippled. Later, these rights appeared in the writings of Paine, Marx, Kant, and other authors.

The first place to start in the 19th century would be the International Labor Organization, which was originally a branch of the League of Nations and adopted several treaties in the century to enhance labour standards internationally. In 1919, the Treaty of Versailles created the International Labor Organization (ILO) to eliminate worker injustice and suffering and to provide fair and decent working conditions.

The ILO developed minimum criteria for a wide range of concerns that are now covered by economic and social rights during the early twentieth-century era. They covered conventions on employment discrimination, illness security, accident, invalidity, and old age insurance, as well as conventions on free association and the right to rest.

Article 55 of the UN Charter was introduced as a result of these developments, and it calls on all members to encourage rising living standards, full employment, and growth and development on all fronts, including social and economic.

It is important to note that President Roosevelt’s vision in his annual address to Congress on January 11, 1944, served as the incentive for the inclusion of Articles 22–28, which include economic and social rights, in the Universal Declaration of Human Rights.

Socio-economic rights as articulated in the 1944 state of the union address by US President Franklin D. Roosevelt are as follows:

The right to productive and well-paying employment in the nation’s industries, businesses, farms, or mines;
The right to work for a living that allows for enough subsistence, clothes, and leisure;
The right of every farmer to cultivate and sell his goods at a profit that would enable him and his family to live decently;
The freedom to engage in business without interference from monopolies or unfair competition, whether domestically or overseas;
Every family has a right to a good house;
The potential to develop and enjoy good health and the right to proper medical treatment;
The right to sufficient protection from the economic anxieties of old age, illness, accident, and unemployment;
The privilege of quality education.

Following the adoption of the Universal Declaration, the Economic, Social, and Cultural Covenant of 1966 transformed the aforementioned rights into legally-binding responsibilities.

The economic and social rights, recognized under the Universal Declaration through Articles 22-28 are as follows

Right to social security

The right to social security and the realization of the economic, social, and cultural rights necessary for one’s dignity and the unrestricted development of one’s personality is guaranteed by Article 22. These rights must be realized through national endeavor, international cooperation, and in accordance with the structure and available resources of each State.

Right to work, equal wages, just remuneration and to form and join trade unions

According to Article 23, everyone has the right to work, the right to choose their own job, the right to fair and suitable working conditions, the right to be safeguarded from unemployment, and the right to equal remuneration for equally hard labour without discrimination. Furthermore, anybody who works has the right to reasonable remuneration that guarantees them and their families a life worthy of human dignity, is supported, when needed, by various forms of social security, and has the right to form and join a union.

Right to rest and leisure

Article 24 provides the right to rest and leisure as well as the right to reasonable working hours and paid holidays.

Right to health

Article 25 (1) guarantees the right to a standard of living adequate for his and his family’s health and well-being, including food, clothing, housing, medical care, and other necessary social services, as well as the right to security in the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood due to circumstances beyond his control.

Right to education

Article 26 guarantees the right to an education, and education must be free, at least in the elementary and fundamental stages. Elementary schooling shall be compulsory. Technical and professional education shall be made widely available, and higher education would be open to all on the basis of merit.

The following are some of the rights recognised by The Economic, Social, and Cultural Covenant, 1966 (hence referred to as The Economic Covenant).

Right to work (Article 6).
Right to favorable conditions of work (Article 7).
Right to form and join a trade union (Article 8).
Right to social security (Article 9).
Right to an adequate standard of living (Article 11).
Right to health (Article 12).
Right to education (Article 13).

Socioeconomic rights are also included under the Convention on the Rights of the Child (1989) and the International Convention for the Elimination of All Forms of Racial Discrimination (CEDAW, 1965).

The right to work, the right to health, and the right to education are recognized by regional human rights agreements, such as the African Charter on Human and Peoples’ Rights.

These international agreements are crucial for the consideration of human rights in general and have a significant influence on national constitutions.

Due to these international agreements’ normative influence, which establishes a basic standard of widespread global acceptability, constitution-makers may be confined by their contents. The majority of constitutions today incorporate a wide variety of socioeconomic rights, either as explicitly enforceable sections, aspirational declarations, or directive principles. A small number of constitutions, particularly those dating before the twentieth century, do not explicitly address socioeconomic rights.

Socio-economic rights under the Indian Constitution

Although the term “socioeconomic rights” is not mentioned anywhere in the Indian Constitution, many of the elements that make up socio-economic rights are found there in the Directive Principles of State Policy in Part IV of the Constitution .

All human rights are recognised under the Indian Constitution. Economic, social, and cultural rights are covered by the directive principles of state policy, whereas civil and political rights are acknowledged as justiciable fundamental rights. These guiding principles are meant to provide direction for the interpretation of fundamental rights and governmental policy.

In contrast to basic rights, these are notions that are important in the governance of the country, according to the Indian Constitution, and the State is required to follow these principles in making laws. As these were intended for governance and lawmaking, the DPSPs might be referred to as policy goals for the administration and legislature.

The Directive Principles of State Policy are found in Articles 36 to 50 of Part IV of the Indian Constitution (DPSP). There are many provisions that are identical to those in the ICESCR. For instance, Article 43 mandates that the state endeavor to ensure that all workers, whether in the agricultural, industrial, or other sectors, have access to work, a living wage, and working conditions that allow them to fully enjoy their free time as well as social and cultural opportunities. In particular, it mandates that the state promote cottage industries on an individual or cooperative basis in rural areas.

This basically refers to Articles 11 and 15 of the ICESCR. But the right to health (Article 12) has been interpreted by the Indian Supreme Court to include the right to life under Article 21 of the Constitution, making it instantly enforceable and justiciable. In order to fulfill some of its treaty obligations as a signatory to the ICESCR, the Indian government-produced legislation that is now enforceable in and by the courts. The socio-economic rights as provided by the Indian constitution are as follows

Article 39 (a) – Equal right of citizens to an adequate means of livelihood.
Article 39(c) – Right to the health and strength of workers.
Article 39(d) – Equal pay for equal work for both men and women.
Article 41 – Right to work, education, and public assistance in instances of unemployment, old age, sickness, and disability.
Article 42 – Just and humane conditions of work and maternity relief.
Article 43 – A living wage, etc. for workers.
Article 47 – Improvement of public health, raising the level of nutrition and standard of living of the people.

For over three decades, the Supreme Court refused to decide whether DPSPs were enforceable. The Court declined to read the DPSP and the Fundamental Rights simultaneously. The shift occurs, however, when the Court discovers a new meaning for the word ‘life’ in Article 21.

In Francis Coralie v. Union Territory of Delhi (1981), Bhagwati J. posed the question, “…. Whether the right to life is limited only to the protection of limb or faculty, or does it go further and embrace something more,” and the court’s opinion stated, “We think that the right to life includes the right to live with human dignity and all that goes with it, namely, the bare necessities of life such as adequate nutrition, clothing, and shelter over the head, and facilities for reading, This has occurred in several other cases.” Some of the socio-economic rights are as follows.

Right to livelihood

In Olga Tellis’s case (1986), the facts of the case are as follows; the eviction order authorized by Mr A.R. Antulay, the then Chief Minister of Maharashtra, was questioned by journalist Olga Tellis in collaboration with the PUCL and other organizations. The pavement dwellers and public interest organizations both stated that the pavement residents’ eviction order violates their fundamental rights. The residents said that such action would violate their right to life because a residence in the city allowed them to make a living, and they requested that appropriate resettlement be given if the evictions proceeded.

The Supreme Court recognised the right to livelihood as a component of the constitutional right to life and ruled that eliminating a person’s ability to support themselves would be the easiest way to revoke their right to life. Life would become harder to live and lose its efficacy and value as a result of such deprivation.

Right to work

The right to work may be viewed as a human right because it is included in both the UDHR and the ICESCR. The right to work is a fundamental human right, which means that every person has the right to engage in the producing and maintaining components of human society in order to earn enough money to ensure an appropriate quality of life. The ability to make a living is the key component of the right to work.

In accordance with Article 41 of the Indian Constitution, “the State shall, within the limits of its economic capacity and development, make effective provisions for securing the right to work, to education, and to public assistance in cases of unemployment, old age, sickness, and disability, as well as in cases of other underserved want.” The Indian Constitution has accepted the right to work in a form and manner comparable to the ICESCR by using the phrase within limitations. The State’s economic capability and development are consequently necessary for the provision of the right to work.

The right to adequate remuneration, the right to equal pay for equal work, the right to equal treatment, the right to safe and sanitary working conditions, the right to a limited workday, and the right to sufficient rest times are among the rights at work. These rights provide respectable working conditions and are strongly related to the rights to health and life. Additionally, they relate to laws that forbid slavery, servitude, and forced labour.

The ILO has worked extensively to expand the scope of workers’ rights, and these rights are protected by a number of its conventions, including the Discrimination (Employment and Occupation) Convention of 1958, the Abolition of Forced Labor Convention of 1957, and the Right to Organise and Collective Bargaining Convention of 1949.

The Supreme Court in Delhi Transport Corporation vs D.T.C. Mazdoor Congress (1990) recognised the right to work as a basic right. The facts of the case are as follows: The respondents, who were employees of the Delhi Transport Corporation, received termination notices under Regulation 9(b) of the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952, from the appellant, i.e., the Delhi Transport Corporation, because they had become inefficient in their work and had encouraged other members to refuse to perform their duties.

The three respondents and their union filed a writ petition in the Delhi High Court, questioning the constitutionality of Regulation 9(b), which granted management the right to terminate an employee’s services with one month’s notice or pay in lieu of notice.

The High Court ruled that the Regulation was unconstitutional because it provided management total, unfettered, and arbitrary authority to terminate the services of any permanent or temporary employee, in violation of Article 14 of the Constitution. As a result, the Corporation filed an appeal with the Supreme Court.

The Supreme Court held that the following Rules and Regulations adopted in the exercise of powers provided by Section 53 of the Delhi Transport Act, 1950, do not provide a fair explanation for terminating its workers’ services and also violate Article 14 of the Indian Constitution. Further, it observed that “The right to life includes the right to a livelihood. As a result, the right to a livelihood cannot rely on the whims of persons in positions of authority. The job is neither a gift from them nor its survival depends on them. Many fundamental rights are based on income, and when labor is the only source of income, the right to work becomes just as important“.

The Indian Government has established several programmes as part of its State policy to give employment to the underprivileged sections of society, particularly those living in extreme poverty, including the Employment Assurance Scheme, National Rural Employment Programme, Jawahar Rozgar Yojana, Sampoorna Grameen Rozgar Yojana, and National Food for Work Programme.

Equal pay for equal work

While considering the matter of drivers in the Delhi Police Force with that of other drivers in the service of the Delhi Administration and the Central Government in Randhir Singh v Union of India (1982), the court expounds on the essential concept of equal pay for equal work, holding that;

“It’s accurate to say that our Constitution doesn’t explicitly state that having equal pay for equal work is a fundamental right. It is undoubtedly a constitutional purpose, though. Equal pay for equal work for both men and women is stated in Article 39(d) of the Constitution as a Directive Principle of State Policy. The phrase equal pay for equal work for both men and women refers to this concept. As noted in a few of this Court’s rulings, as a matter of interpretation, directive principles must be integrated into fundamental rights.“

In Dhirendra Chamoli v. State of U.P. (1985), the court invoked Article 14, which guarantees equality before the law and equal protection under the law, to uphold the right of temporary workers who perform similar labor to regular workers to receive equal pay for equal work.

In this case, two Class-IV employees of the Nehru Yuvak Kendra in Dehradun who were hired as casual workers on a daily wage claimed to be doing the same work as Class-IV employees who were hired on a permanent basis. The basis for denying them the pay scale offered to regular workers was because there was no sanctioned post to accommodate the petitioners, and so the respondent- employers were that they could not be granted the benefits permitted to regular employees.

Furthermore, it was argued that the petitioners’ claim should be rejected because they voluntarily accepted the emoluments of casual workers employed on a daily wage when they accepted employment with the Nehru Yuvak Kendra. As a result, they were not entitled to anything more than what they had agreed to accept.

The Supreme Court ruled in its decision on the aforementioned issue that it was unlawful for the government to exploit citizens, particularly when India was a welfare state committed to a socialist form of society.

In Surinder Singh v. Engineer-in-Chief, CPWD (1986), the court held that “the principle of ‘equal pay for equal work’ was not an abstract doctrine, adding that …it was not open to the Government to exploit citizens, especially when India was a welfare state, committed to a socialist pattern of society”. It was seen as a crucial and furious concept that was widely supported, especially by all socialist countries.

According to the decision in State of Punjab and Ors v. Jagjit Singh and Ors (2016), “an employee employed for the same work cannot be paid less than another who fulfills the same obligations and responsibilities. In a welfare state, most certainly not. Apart from being degrading, such action undermines the basic core of human dignity.”

In this case, all of the temporary workers in the current batch of appeals were appointed to positions that were also available in the permanent cadre/establishment. The State of Punjab further acknowledged that during their employment, the concerned temporary employees were being randomly deputed to fulfill duties and obligations that had been given to regular employees at some point. As a result, the Court found that there can be no question that the concept of ‘equal pay for equal work’ would apply to all of the involved temporary employees, granting them the right to wages equivalent to the minimum of the pay scale of regularly employed Government employees holding the same job.

However, in the case State of Madhya Pradesh v. RD Sharma (2022), the court stated that equal pay for equal work is not a fundamental right vested in any employee, even though it is a constitutional goal that the government must attain.

In the present case, the retired Principal Chief Conservator of Forests filed a writ petition to the Delhi High Court. The Government of India had denied his appeal to increase his pension from Rs 37,750 to Rs 40,000 in accordance with the new regulations. The Central Administrative Tribunal denied this application. Dissatisfied, he petitioned the High Court, where his writ petition was allowed and it was determined that he would be eligible for a pension of Rs.40,000 on par with other officials.

The State filed an appeal against this order, and the Apex Court highlighted that the HC had seriously misconstrued the Apex Court’s judgments in State of Punjab v Jagjit Singh and Ors (2016), which did not apply to the issue at hand. The Apex Court noted that determining pay scales and equating postings were the primary purview of the administrative branch, not the judiciary and that the courts would thus refrain from taking on the process of job appraisal, which is often carried out by organizations like pay commissions. The Court further stated that it would not get involved in such complicated situations unless there was a serious mistake made while determining a pay scale for a particular job and that the Court’s intervention was absolutely required to correct the situation.

Right to shelter

In developing Indian jurisprudence on the right to housing or shelter, the Supreme Court relied on Article 21 of the Indian Constitution – the Right to Life – and read it along with Articles 38, 39, and 46. In several circumstances, the Supreme Court has also used Article 19(1)(e), which grants the freedom to reside in any part of India.

The Directive principles stated in Articles 38, 39, and 46 are essential for the right to housing:

Article 38 requires the State to seek to enhance people’s welfare by guaranteeing and supporting a social order in which social, economic, and political fairness guide all institutions of national life.
Article 39(a) mandates the State to direct its policies toward ensuring that all citizens have an adequate means of livelihood.
Article 46 requires the state to promote the educational and economic interests of the weaker parts of society, particularly the Scheduled Castes and Scheduled Tribes, and to safeguard them from injustice and all forms of exploitation.

In the case of Shantistar Builders v. Narayan Khimalal Totame (1990), the right to shelter was recognised. The Supreme Court stated that every civilized community protects one’s right to life. The right to healthy food, clean clothing, a clean environment, and suitable housing would all fall under this category.

Shelter for a human being, therefore, is not merely the protection of his life and limb, as was declared in the case of Chameli Singh v. State of U. P. and Another (1995) “It is his home and the place where he may grow intellectually, emotionally, physically, and spiritually. Therefore, in order for him to readily access his daily activity, the right to shelter includes enough living space, a safe and good building, clean and acceptable surroundings, enough light, fresh air and water, power, sanitation, and other municipal infrastructure like roads, etc. As a result, the right to shelter encompasses not only the need for a roof over one’s head but also the entirety of the infrastructure needed for people to exist and grow as people“.

Right to food

The State should consider raising the standard of nutrition and the standard of living of its citizens, as well as promoting public health, as among its important duties, as provided in Article 47.

The Supreme Court of India interpreted Article 21 of the Constitution’s Right to Life in accordance with this standard, interpreting it to cover “the right to live with human dignity and all that goes with it, namely, the bare necessities of life such as appropriate food, clothing, and shelter over one’s head.”

As per the National Human Rights Commission (NHRC), the right to life also includes the right to food, a means of livelihood, and access to healthcare. According to the NHRC:

“Article 21 of the Indian Constitution ensures a basic right to life and personal liberty.” In this Article, the term “life” has been judicially defined to signify a life with human dignity, not only survival or animal existence. In light of this, the state is obligated to provide for all of the minimal criteria that must be met in order for a person to live with human dignity, such as education, health care, reasonable and humane working conditions, protection against exploitation, and so on”.

According to the Commission, in order to properly comprehend the State’s obligation to ensure the Right to Food is implemented, Article 21 should be read with Articles 39(a) and 47. The State must focus its policies on guaranteeing that everyone, men and women equally, has the right to an adequate means of subsistence, according to Article 39(a) of the Constitution, which is one of the Directive Principles significant to the nation’s government.

Right to health

According to Article 25 of the 1948 Universal Declaration of Human Rights (UDHR), “everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing, medical care, and necessary social services, as well as the right to security in the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood in circumstances beyond his control.”

In Article 12 of the International Covenant on Economic, Social, and Cultural Rights, it is acknowledged that everyone has the right to the best possible physical and mental health, as well as the establishment of circumstances that would ensure access to medical care and attention for everyone in the event of illness.

According to Article 12 of the Convention on the Elimination of All Forms of Discrimination Against Women, 1979, all countries are obligated to end discrimination against women so they can exercise their right to family planning services, access to health care, and protection of their physical and mental health.

Article 24 of the Convention on the Rights of the Child, 1989 states that every child has the right to the highest possible state of health. Every child also has the right to use healthcare services for treatment and wellness programs.

Life has been considered to encompass the right to health within the purview of Article 21 of the Indian Constitution. Every person has a right to protection against all types of life-threatening situations as well as emergency medical care. And the state shall consider enhancing the quality of nutrition, the standard of life of its citizens, and the enhancement of public health as among its fundamental obligations, according to Article 47 of the Indian Constitution.

In the Consumer Education and Research Center v. Union of India (1995), a consumer rights NGO named the Consumer Education and Research Center filed several writ petitions under Article 32 of the Indian Constitution against the Government of India regarding worker protection from occupational health hazards and illnesses linked to asbestos exposure. In this decision, the Supreme Court ordered the government to preserve the rights to health, a clean environment, and privacy as essential components of the requirements for a person to live with dignity.

Furthermore, in the case of Paschim Banga Khet Mazdoor Samity v. State of West Bengal (1996), the Supreme Court stated that the basic obligation of the government in a welfare state is to protect the wellbeing of the people. Providing appropriate medical facilities for the people is an integral component of the responsibility assumed by the government in a welfare state. Article 21 imposes an obligation on the state to protect the right to life of all individuals.

In the case of bonded laborers, Bandhwa Mukti Morcha, the Court stated, The right to live with human dignity enshrined in Article 21, derives its life-breath from the Directive Principles of State Policy, particularly Clauses (e) and (f) of Article 39 and Articles. 41 and 42, and, as a result, it must at least include protection of the health and strength of workers, men and women, and of the tender age of children.

The right to health is a basic human right since it is necessary for the right to life. In accordance with Article 21, the State is obligated to ensure that people have access to emergency medical treatment. The scope of Article 47 is broader, and it gives the government a good obligation to advance the standard of living for citizens in terms of nutrition and healthcare.

Enforcement of socio-economic rights

The Supreme Court of India has established different legal precedents with regard to socio-economic rights. The Indian Court has interpreted the fundamental rights provision broadly to uphold socioeconomic rights listed in the Directive Principles of State Policy, while at the same time lowering procedural and legal hurdles to individual claimants’ ability to enforce their rights.

In Bandhua Mukti Morcha v. Union of India (1984), the Court made a clear connection between the socioeconomic Directive Principles and the right to life, stating that the “right to live with human dignity, embodied in Article 21, gets its life breath from the Directive Principles.”

The Court simultaneously lowered standing requirements and procedural restrictions on public interest lawsuits. The Court reasoned that these changes were required because “the entire aim of the statute was changing.” Developing new kinds of rights, it was promoting social justice.

In S.P. Gupta v. President of India (1982), the Court rejected common law locus standi rules that allowed anybody to bring a case on behalf of a “person who cannot file a lawsuit themselves due to poverty… or a socially or economically disadvantaged position.” In Bandhua Mukti Morcha v. Union of India (1984), for example, the Court allowed a public interest organization to challenge the constitutionality of bonded labor and urged the government to embrace public interest litigation more effectively.

The Court has also taken a comprehensive approach to what it must do to preserve socio-economic rights. For instance, in Bandhua Mukti Morcha, the Court instructed the state to guarantee that workers received a minimum wage going forward in addition to ordering the state to free bound laborers. The Court’s opinions have occasionally approximated full-fledged policymaking. An extreme example is the Right to Food Litigation i.e Peoples Union For Civil Liberties v Union Of India And Ors (2007), in which the Court ruled that the state was responsible for providing emergency nutrition and issued 49 interim orders between 2001 and 2005 to carry out its decision at a specific social policy level, addressing issues like school lunches and accountability.

Conclusion

Economic rights are not legally “justiciable” today, hence there is a substantial dispute over whether independent courts should rectify a violation of the right by declaring government action or inaction unconstitutional and, to some extent, demanding legislative or executive intervention.

Obligations relating to economic rights must be handled in the same way as those relating to civil and political rights. These include giving liberties, laying demands on the state with regard to other parties, and requiring the state to act or achieve a certain objective. Enforcing economic rights is crucial to reducing the pervasive and damaging economic issues both domestically and internationally.

Frequently asked questions [FAQs]

What categories of rights does the Universal Declaration of Human Rights guarantee?

The Universal Declaration of Human Rights distinguishes between two types of rights: civil and political rights and economic, social, and cultural rights.

How are socio-economic rights included in the nation’s constitution?

Socio-economic rights can be incorporated into a constitution as directive principles that are not legally binding on the state but are politically and morally binding.

How has the Indian Constitution included economic rights?

Economic Rights have been included as a Directive Principle of State Policy in Part IV of the constitution.

What connection exists between socio-economic rights and civil and political rights?

Equal importance is given to socio-economic, civil, and political rights. Generally, civil and political rights have been given more importance. However, civil, political, and socio-economic rights are interdependent and inseparable. Both are cornerstone principles of international human rights law.

Are socio-economic rights only principles rather than enforceable rights?

Political and civil rights are usually acknowledged as being enforceable. Some contend that social and economic rights are not legally enforceable rights but rather political goals and objectives. States have acknowledged that civil, political, and socioeconomic rights are all equally important and should be prioritised, and the UN has indicated that there is no justification for such a distinction between civil, political, and socioeconomic rights.

References

First woman judge of the Supreme Court

By

Sneha Mahawar

-

July 11, 2022

0

This article is written by Mohammad Sahil Khan of Dr. Ram Manohar Lohiya, National Law University, Lucknow. The article talks about the first woman judge of the Supreme Court of India. Her early life, career progression, achievements and some of the landmark judgements delivered by her are also reflected upon. The article also discusses certain issues associated with the judicial setup and how to tackle them.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

Judiciary in India is essentially a patriarchal setup. It can be deduced from the fact that all 26 High Courts in the country are headed by male Chief Justices. It is a troubling situation because the judiciary has delivered various landmark verdicts to ensure gender equality, but such inadequate representation of women in the higher judiciary is indeed troubling. No woman has ever held the office of Chief Justice of India since independence, and it is unlikely to happen in the near future. However, Justice Fathima Beevi fought against all the odds and became the first woman judge of the Supreme Court after 40 years of the establishment of the Constitution of India.

Early life of the first woman judge of the Supreme Court

Fathima Beevi was born on 30th April 1927 at Pathanamthitta in the erstwhile Travancore state, which is presently known as Kerala. She was the eldest of her eight siblings. Her father was a government servant. He encouraged her academically, and Fathima was herself academically very driven. She completed her schooling at Town School and Catholicate High school in 1943. Further, she attained a B.Sc. degree from the University College of Thiruvananthapuram, and later on, she did her law graduation from Government Law College, Thiruvananthapuram.

After completing her schooling, Fathima moved to a new city at the tender age of 16 years during the pre-independence era. This speaks volumes of her zeal to achieve greatness. Fathima’s father, Annaveetil Meera Sahib, played a major role in shaping her career. Fathima wanted to pursue an M.Sc degree after completing her B.Sc degree, but her father dissuaded her and urged her to study law as he contemplated that by completing an M.Sc, she would become a professor and he wanted her to do something big. Fathima’s father was highly inspired by Anna Chandy, who was the first woman judicial officer working in the state of Travancore. Seeking inspiration from her, he pushed his daughter to flourish in the judicial setup. Not only in the higher judiciary but also in her law school, Fathima Beevi witnessed a patriarchal setup as she was one of the only five girls in her batch. She completed her law degree in 1950 and appeared for the Bar Council of India examination and achieved the rare feat of being the first woman to top the exam. She was rewarded with a gold medal from the Bar Council.

Career of the first woman judge of the Supreme Court

Judicial career

On completion of her law degree, Fathima Beevi joined the lower judiciary as an advocate in 1950 and worked diligently for eight years. In 1958, she was inducted as a munsiff in the Kerala Subordinate Judicial Services. From thereon, Fathima Beevi never looked back and achieved new echelons as the years passed by. She made remarkable progress in her career, from Subordinate Judge in the Kerala Subordinate Judicial Services (1968-72) to serving as the Chief Judicial Magistrate from 1972-74. In 1980, she became a judicial member of the Income Tax Appellate Tribunal, where she served for a period of three years, till 1983.

Furthermore, her career trajectory took off to even greater heights and she became a judge of the Kerala High Court. This was a remarkable achievement and an exponential career growth because till then, there were hardly any females in the higher judiciary, and by becoming a judge of the high court, she also became the first Muslim woman to be appointed to the higher judiciary. One would assume that this would be the pinnacle point for Fathima Beevi, but she had some other plans and just six months prior to her retirement, she was appointed as the first woman judge of the Supreme Court. Not only in India, but she also became the first woman judge of a Supreme Court in Asia. The magnitude of this achievement cannot be measured on any scale because it took almost 40 years for a woman to become a judge of the Supreme Court. It was a historic feat, and Fathima Beevi rightly said, “I opened a closed door.” This statement is true in every essence because the doors of the higher judiciary were almost kept shut for women, and by opening the door, Fathima Beevi instilled the belief in the women that they too could get into the higher judiciary. Fathima Beevi was very honest in her work. She was always well versed with the cases that she was going to hear and was always courteous in her approach.

Governor

Fathima Beevi retired from the post of the Supreme Court judge in 1992. Five years later, she found herself in a new role as the Governor of Tamil Nadu on the recommendation of M. Karunanidhi, the Chief of Dravida Munnetra Kazhagam. On her appointment, Shankar Dayal Sharma, the then President of India, appreciated her contribution to the judicial setup and stated that her insights and valuable experience would prove to be a great asset. The humility of Fathima Beevi was one of the most attractive traits of her personality. She did not live the extravagant life of a governor, but rather lived like a hermit in the Raj Bhavan. From being a retired judge of the Supreme Court to becoming the Governor of Tamil Nadu was a giant leap, and the journey was not as smooth as she would have expected. The career of Fathima Beevi as a governor was marked by some major controversies. Finally, she completed her career as a governor after vacating her office in 2001, after serving for a tenure of four years.

Other roles

Apart from serving the majority of her career in the judiciary and as a governor, she also held several other posts. During her tenure as the Governor of Tamil Nadu, she also served as the Chancellor of Tamil Nadu University. She also became a member of the National Human Rights Commission (NHRC) in 1993. If these roles were not enough, Fathima Beevi was appointed as the Chairman of the Kerala Commission for Backward Classes in 1993.

Major judgments of Fathima Beevi’s career

In her long and illustrious career, Fathima Beevi had presided over various case hearings and has been very profound in her decision-making. Here are some of the landmark cases that were judged by Fathima Beevi:

Assam Sillimanite Ltd. v. Union of India, (1992)

In this case, the Bench had to adjudicate on the matter of whether a state enactment was constitutionally valid or not. Justice Fathima Beevi observed that the Court has the power to scrutinise the validity of any state enactment, even if it means implementing directives mentioned in Article 39 of the Constitution.

Scheduled Caste and Weaker Section Welfare Assn. v. the State of Karnataka, (1991)

The case was pertaining to limiting statutory power. The case was important as it talked about the welfare of the public at large to protect them against the arbitrary power exercised by the State or its officers. Justice Fathima Beevi held that citizens must be protected from the excessive power vested by State authorities against them, she further stated the rule of natural justice must be used while checking the exercise of the power.

Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay, (1992)

In this case, Justice Fathima Beevi made an important observation regarding the ‘necessary party’ under Order 1 Rule 10(2), Civil Procedure Code. Justice Fathima made the distinction between ‘necessary party’ and ‘necessary witness’. According to Justice Beevi, if a person has relevant evidence regarding the questions involved, then he would be a necessary witness. The prerequisite for a person to be a ‘necessary party’ is that the individual should be bound by the result of the action and the question to be settled. The requirement of the individual to be bound by the result and that the questions in action cannot be settled unless he or she is the party defines what constitutes a ‘necessary party’.

Mool Chand v. Jagdish Singh, (1993)

This case discusses the possibility of overturning a judgement given by the High Court. The observation made in the judgement was that if there were two views on the basis of the evidence presented and if the high court adopted the view of acquitting the accused, the Supreme Court would be rather slow to interfere with the ruling of the high court. The only scenario where the judgement of a high court can be overturned is when the high court has committed a grave error in the appreciation of the evidence and has misdirected himself by ignoring legal principles before coming to the conclusion. If the procedure followed by the high court is not in accordance with the laws established, such decisions would be characterised as perverse or illegal, and then the Supreme Court of India can interfere with the judgement by exercising its power under Article 136 of the Constitution of India. However; if the judgement of the high court is supported by cogent reasons, then the ruling order will be sustained.

Rattan Chand Hira Chand v. Askar Nawaz, (1991)

In this case, the validity of a contract under the purview of Section 23 of the Indian Contract Act, 1872 was in question. Justice Fathima Beevi, in her observation, held that every agreement whose consideration is unlawful would be void. The consideration of an agreement is unlawful if it is opposed to public policy. Anything that is done against public policy or public law would be illegal inasmuch as the interest of the public would suffer in case a contract against public policy is permitted to stand. She also held that public policy is a principle of judicial interpretation based on the current requirements of the community and it has to be changed over the passage of time in order to prevent it from being redundant.

Major decisions in Fathima Beevi’s career as a governor

After her retirement from the judiciary, Fathima Beevi experienced a new challenge as the Governor of Tamil Nadu. Her journey was not as smooth as the one she experienced in the judiciary. Perhaps her journey as a governor was marked by tumultuous times. She made a few bold decisions, but a few controversies also arose because of her decision-making.

As the Governor of Tamil Nadu, she rejected the mercy petition filed by the four condemned prisoners in Rajiv Gandhi’s assassination case. The mercy petitions were filed by the prisoners where they pleaded with the governor to exercise her power to grant pardon under Article 161 of the Constitution.
Fathima Beevi appointed Jayalalitha as the Chief Minister of the state of Tamil Nadu when she was not allowed to contest elections. This erupted a massive controversy, and subsequently, Fathima Beevi resigned from the post of Governor in 2001.

Reasons for inadequate representation of women in higher judiciary

Women are meagerly represented in the higher judiciary and it is not a new phenomenon; it’s a spectacle that has been witnessed ever since the formation of the Indian Constitution. In high courts, the percentage of women is 11.5%, while in the Apex Court, there are 4 women judges out of 33 sitting judges in the office. If we ignore the number of female judges and look only at the number of female advocates, the figures are no different. There are only about 15% of women advocates in India out of 1.7 million registered advocates. There are various factors behind the deep-rooted patriarchal setup in the judiciary.

Patriarchal society

The underrepresentation of women judges in the higher judiciary is a testament to the patriarchy in our society which has crept into the judicial structure. Women often have to encounter hostile environments at their workplaces. The members of the bar and bench do not treat female advocates or judges with the respect that they deserve. There have been various instances of harassment of female lawyers. Their voices are often silenced and their opinions are not well contemplated. The Chief Justice of India, N.V. Ramana, stated that “the primary reason is deeply ingrained patriarchy in our society.”

Opaqueness in the collegium system functioning

The numbers of women judges are significantly higher in the lower judiciary in comparison to the higher judiciary because there is an entrance examination for the purpose of recruitment. According to the 2020 Economic and Political Weekly report, in 17 states between 2007 and 2017, 36.45% of the magistrates and judges were women. This clearly proves that the collegium system designed for the appointment of judges is opaque and reflects a gender bias in their choices of appointment. Recently, the collegium of the Supreme Court recommended 192 candidates for the post of judge in the high court, of which 37 were women, and out of those 37 women candidates, only 17 have been appointed.

No women’s reservation

There are state reservations for women in the lower judiciary, but the same is missing in the higher judiciary. This leads to an inadequate representation of women in the higher judiciary. Andhra Pradesh, Assam, Telangana, Odisha, and Rajasthan are the states that provide women’s reservations in the lower judicial structure, and as a result, these states have 40-50% of women judicial officers. Fathima Beevi unequivocally expressed her views, stating that there is no doubt that women are underrepresented in the higher judiciary and that owes to the patriarchal setup. Fathima Beevi gave her line of reasoning stating that the women took to the law field a bit late as well, but she insists that even though there are many women at the bar and on the bench, their participation is still meagre. In order to solve the issue, Fathima Beevi propagates in favour of having a women’s reservation in the judiciary so that they are adequately represented and there is no discrimination on the basis of gender.

Familial responsibilities

The process of growing through the ranks in the judiciary is a long process. In order to ascend from one office to a higher office, it takes a lot of time and it disrupts the evolution of women judges’ careers. Familial responsibilities come along with their career and many judges have to quit their progress to endure the responsibilities of their families.

Lack of serious attempt

No attempts or hardly any attempts have been made to ensure gender parity in the judiciary. Even after 70 years of independence, out of 245 appointed judges in the higher judiciary, only 3.3% of judges have been women. It is perturbing that no attempts to introduce reservations for women or make the collegium system transparent. There is a need to have legislation in place which would reserve a few women judges’ seats in the higher judiciary. The situation is not going to change unless and until a conscious effort is put into elevating women in the bar and on the bench.

Judicial infrastructure

Judicial infrastructure also plays a major role in the inadequate representation of women as the small courtrooms, lack of facilities and absence of restrooms are some of the major concerns for women. Lack of judicial infrastructure and familial responsibilities add up to the misery of women as they experience problems in taking care of their children in their professional environment. The absence of child-bearing facilities is one of the major contributing factors to women opting out of the judiciary.

Scarcity of women in litigation

It is interesting to note that the ratio of males to females studying in law schools is almost similar, yet when we look at litigation, it presents a different story altogether, with only 15% of advocates practising litigation being women. With a reduced number of female advocates opting for litigation, the pool for selecting judges becomes extremely limited and, as a result, there is a scarcity of women judges in the higher judiciary. The question that immediately arises is why is there such a small pool of female advocates practising litigation? The answer to this question is a combination of various factors, such as workplace harassment of women’s advocates, lack of respect, and lack of infrastructure.

Senior advocate Indira Jaising wrote an open letter to the Chief Justice of India in which she stated that during her years at the bar, “there have been multiple incidents where sexist remarks being made by lawyers go unnoticed by the bench”. Indira Jaising also said that she frequently experienced various sexual harrassment in the corridors of the Supreme Court. There were no actions taken against such behaviour, and as a result, such instances happened quite frequently. Apart from this, there is a dearth of restrooms and other essential facilities in the court for female advocates. As a result, many female lawyers opt to practice in law firms where there are strict regulations against workplace harassment and all the essential amenities are provided to them.

Need for women judges

Recently, the Chief Justice of India openly expressed the need for women in the higher judiciary and said he supports 50% representation for women in the judiciary. The patriarchy indeed needs to go away, and the appointment of various female judges would entail great benefits.

Across various industries and sectors, it has been observed that if at a workplace there is an inadequate representation of females, they are suppressed and the workplace environment becomes toxic for females. Therefore, it has become important to have more female judges in the judiciary to balance out the gender power imbalance and prevent any gender discrimination.
At present times, it has been witnessed that most clients do not prefer female advocates to fight their cases because of a gender bias in the public against the judiciary. Many women do not approach the court in order to seek justice because they do not see many female advocates in the courtroom. As a result, they are not confident that they will get justice. If there were enough female advocates and judges practising in the courts, more women would be willing to seek justice and would look to enforce their rights.
The inclusion of female judges in the judiciary would increase diversity and it would lead to a diverse set of opinions, which is instrumental in interpreting various facets of the decision-making process.
The inclusion of women judges will enhance judicial reasoning as it would allow making decisions on the basis of varied social experiences and contexts.
Women judges have been the torchbearers of some legislative changes. For instance, Justice Leila Seth, a member of the 15th Law Commission of India, spearheaded the amendments in the Hindu Succession Act, 1956 which allowed daughters to secure inheritance rights over ancestral property. She was also a member of the three-member Justice Verma committee, set up in the wake of the 2012 Delhi gang-rape case. The committee recommended strict punishment for sexual offences and also called for speedy trials.

Way forward

There is no doubt that women judges are needed in the higher judiciary and some positive steps have to be taken in this regard. It’s not just about giving women judges representation in the judiciary; it’s also about providing them with the respect that they deserve. If a woman judge is appointed, her opinions should be considered, the workplace environment should be amicable, and better facilities need to be provided. The following steps can be taken:

There needs to be a complete overhaul in terms of gender sensitisation by bringing about behavioural, institutional, and social changes. All the judges should act in a gender-neutral way by keeping their gender biases aside. A legal education regarding gender sensitization needs to be imparted from a very low level so that all the judges and advocates are shaped to not think in a gender-biased way.
The existing patriarchal mindset needs to go away, and more worthy female judges should be appointed or recommended by the collegium system. Recently, out of 37 recommended women judges by the Supreme Court collegium, only 17 were appointed by the high courts.
The Collegium system needs to be made more transparent so that deserving women judges get their chances. Because of the opaqueness of the collegium system, often bias is reflected in the appointment of judges.
A reservation should be provided to female judges in the higher judiciary to ensure the active participation of female judges in the functioning of the judiciary.

Honours and awards received by Fathima Beevi

In her momentous career, Fathima Beevi received various accolades and emerged as the torchbearer of women judges in the higher judiciary. Apart from creating an impact in the judiciary, here are certain awards that she received in her illustrious career:

Fathima Beevi received the D Litt and Mahila Shiromani awards in 1990.
In the year 2015, Fathima Beevi received the United States-India Business Council Lifetime Achievement Award.
Fathima Beevi was conferred with the Bharat Jyoti Award for her exceptional contributions to society throughout her career.

Controversies

Fathima Beevi had an immaculate career with no controversies whatsoever in her legal career, but her image got tainted a bit when she was assuming the office of the Governor of Tamil Nadu. The controversy arose when she appointed Jayalalitha as the Chief Minister of Tamil Nadu. Fathima Beevi resigned from the post of the governor after the arrest of Karunanidhi, who had rooted for her appointment to the office. The reason behind the controversy was that Jayalalitha’s party achieved a simple majority by winning 131 out of the 234 seats in the 2001 State Assembly elections, and Fathima Beevi administered the oath to Jayalalitha as the Chief Minister of Tamil Nadu, despite the fact that Jayalalitha could not contest the election (Jayalalitha was convicted for two years in association with a corruption case against her) and would not be able to get elected to the Assembly within six months of her appointment as per the norms of the Constitution. A Public Interest Litigation (PIL) was filed to question the validity of the appointment of Jayalalitha as the Chief Minister of Tamil Nadu. The Union Cabinet was absolutely furious with Fathima Beevi for not discharging her duties in the right spirit. Subsequently, they decided to recommend to the President to discharge her from the office of Governor. Fathima Beevi resigned from the post of Governor.

Fathima Beevi has maintained her stance that the appointment of Jayalalitha as the Chief Minister of Tamil Nadu was her own decision and she took it after deliberating on various factors such as whether the AIADMK (the party which Jayalalitha represented) obtained a majority, making it the mandate of the public. Fathima Beevi stated that her decision-making was backed by her knowledge, belief, and conviction about the constitutional provisions of that time. In response to the Supreme Court’s observation that “Constitution is supreme and not people’s will”, she responded by saying that the Apex Court has interpreted the Constitution and proclaimed it to be the law of land and everyone is bound by the Constitution and as a result; they should consider such matters.

Conclusion

Fathima Beevi has played many roles in her life, from starting as an advocate to becoming the first woman judge of the Supreme Court, to taking up a role in the National Human Rights Commission, to assuming the office of the governor, but the most important role that Fathima Beevi played was paving the way for female judges and advocates to pursue their ambition. She inspired an entire lot of female advocates and judges to move up their ranks to achieve something extraordinary. Before Fathima Beevi, no woman held the office of judge of the Supreme Court in 40 years, and after her appointment, we have witnessed 10 female judges in the Supreme Court in around 30 years. This in itself is a testament to the legacy that Fathima Beevi has left behind. Even after her retirement, she has always strived for women’s rights in the judiciary and repeatedly called for a reservation for women in the higher judiciary to provide them with a chance of being adequately represented.

Frequently asked questions

Who was the first woman judge of the Supreme Court?

Justice Fathima Beevi became the first woman judge of the Supreme Court in 1989. She also became the first woman judge of the Supreme Court of a nation in Asia.

Who was the first woman to top the Bar Council of India exam?

Fathima Beevi became the first woman to top the Bar Council of India exam in 1950.

When did Fathima Beevi assume the role of the Governor?

Fathima Beevi assumed the role of the Governor of Tamil Nadu in 1997. She was also a member of NHRC in 1993.

When did Fathima Beevi resign from the post of the governor?

Fathima Beevi resigned from the post of the governor after a controversy embroiled because of her appointment of Jayalalitha as the Chief Minister of Tamil Nadu in 2001.

References

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POSH Act, 2013

By

Sneha Mahawar

-

July 11, 2022

0

This article has been written by Nikunj Arora of Amity Law School, Noida. This article provides a detailed analysis of the Sexual Harassment of Women at Work Place (Prevention, Prohibition, and Redressal) Act, 2013, along with its important provisions and key definitions. The article also highlights the drawbacks of the present act in light of the current scenario.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

The majority of the global population is made up of women, but they are placed in a variety of disadvantageous positions due to gender differences and biases. They have suffered violence and exploitation from male-dominated societies. Since time immemorial, women have been exploited in India on a social, economic, physical, psychological, and sexual level, sometimes under the pretext of religious guidance, sometimes under the pretext of scripture, and sometimes based on social convention. Before the Indian Constitution was enacted, the concept of gender equality was almost unknown to us.

On 26th June, 1975, Indira Gandhi, then Prime Minister of India, addressed the United Nations Women’s Conference in Mexico and said that women’s lower status and fewer opportunities hindered the development of the human race. It is clear from this generalization that their emancipation is essential and that better facilities need to be made available to enable their full growth and development. The 20th century marked the beginning of women asserting their rights. Their participation in nation-building is a necessary part of ascertaining their rights. Having economic independence will accelerate the emancipation of women and enhance their status. In India, women are entering the formal labor workforce in unprecedented numbers. The rights of women, especially in the workplace, are more critical than ever before in light of this development. ‘Right to Work’ includes protections against sexual harassment at work.

The sexual harassment of women in the workplace is a form of gender-based violence. Besides violating their self-esteem, dignity, and self-respect, it also violates their constitutional and human rights. The issue of sexual harassment in the workplace cannot be viewed as a recent phenomenon, but it has certainly been brought to light by fast-changing workplace equations. In India, the legislation regarding this is the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). As a result of the Act, women are protected at work from sexual harassment. Furthermore, it provides for preventing and redressing complaints of sexual harassment. This article provides a comprehensive overview of this Act.

Overview of sexual harassment

Meaning

The issues of sexual harassment are still taboo in our society, and such issues are likely to make the working environment of the organization hostile and unfit for work. The act of sexual harassment can be defined as when an individual is sexually degraded or humiliated by another person. In the workplace, sexual harassment can be defined as a systematized form of violence against any gender. It is unfortunate that such uncanny practices are prevalent in our country, where gender equality is on the agenda.

The practice of sexual harassment affects every individual woman, whether they are working in industries with factory owners, supervisors, or male coworkers, or working in the service sector with colleagues, clients, and senior employees, or when studying in colleges with faculty members, students, or male colleagues, or working in domestic affairs with male partners. Such practices, which have become ubiquitous, are being strongly ignored by employers. In addition to experiencing sexual harassment in person, the ladies also experience it virtually. Though the exact definition of this term has not been defined anywhere but was defined under the leading case of Vishakha v. the State of Rajasthan (1997), it is defined as follows:

“Sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as

a) physical contact and advances;

b) a demand or request for sexual favours;

c) sexually-coloured remarks;

d) showing pornography;

e) any other unwelcome physical, verbal or non-verbal conduct of sexual.”

In Apparel Export v. A.K. Chopra (1999), the Supreme Court again reaffirmed the definition of sexual harassment by stating that it means any action or gesture intended to outrage the modesty of a female employee, directly or indirectly.

In terms of classification, there are no clear boundaries or fixed criteria for defining sexual harassment. In the book “Sexual Harassment of Working Women”, it is clear from Mackinnon’s presentation that there are various types of sexual harassment that occur in organizations. Based on the US Supreme Court’s judgment in Meritor Saving Bank v. Vinson (1986), she classified sexual harassment as Quid pro quo harassment and a hostile work environment.

Basically, quid pro quo harassment is sexual harassment that an individual conducts in exchange for an employment opportunity. Promotional offers, salary increases, and transfers are all examples of this kind of harassment. Hostile work environments often involve unwelcome sexual advances, sexual favour requests, and other sexually explicit conduct.

Global view on sexual harassment

International Labor Organization (ILO)

The ILO (International Labor Organization) promotes social justice and international recognition of human and labour rights. The International Labor Organization is a United Nations agency that aims to bring together government representatives, employers, and workers and comprises 187 member countries. Among its responsibilities are establishing labour standards, developing policies, and promoting programs to ensure decent working conditions for both men and women. According to this definition, sexual harassment is any unwanted sexual conduct that creates an intimidating, hostile, or offensive work environment in the reasonable opinion of the recipient. Such behaviour is particularly serious when perpetrated by any official with the power to influence the conditions of the recipient’s career (including recruitment, assignment, contract renewal, performance appraisal, or promotion). In developing and developed countries, as well as in less developed countries, there is a problem of sexual harassment amongst employees. However, these countries tend to deal with this issue individually at the whim of women affected by it.

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

A definition of sexual harassment has been provided by the 1981 UN Convention on the Elimination of All Forms of Discrimination against Women as follows:

“Such unwelcome sexually determined behaviour as physical contact and advances, sexually colored remarks, showing pornography and sexual demands whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable ground to believe that her objection would disadvantage her in connection with her employment, including recruitment or promotion, or when it creates hostile working environment”

Sexual harassment at workplace

Article 14 of the Indian Constitution guarantees the equality of every citizen under the law, as enshrined in the Preamble to the Constitution. Women are therefore legally entitled to a safe workplace. As a matter of fact, the Indian Constitution contains Articles 14, 15 and 21 that address equality and liberty. As a result of these articles, everyone is guaranteed equal treatment under the law, the right to be free from discrimination on any ground, and the right to live a free and independent life. Workplace sexual harassment is a serious form of sex discrimination in the workplace that causes serious harm. This violates a woman’s fundamental rights under Article 19(1)(g) of the Constitution of India, as well as her dignity, physical and mental well-being. Consequently, productivity is low and lives and livelihoods are negatively impacted. The situation is further compounded by deep-rooted socio-cultural patterns, in which victims are placed under a gender hierarchy, which is likely to increase inequality at work and in society as a whole.

Even though sexual harassment has become a serious issue, women do not report such incidents to the appropriate authorities in most case, for fear of losing their livelihood or personal and professional status. It is increasingly acknowledged that workplace sexual harassment violates the rights of women and is a form of violence against them. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was passed to create safe and supportive working environments that respect women’s right to equality of opportunity and status at work. As a result of the Act’s effective implementation, more women will be able to claim their equal rights to gender equality, life and liberty, and equal working conditions around the world. In order to achieve inclusive growth, women need to feel secure at work, which will enhance their participation in the workplace. The extent of the problem is unknown because it is difficult to document the experiences of those who have been harassed at work.

The official statistics indicate that women are represented in the workforce at around 25.3% in rural areas and 14.7% in urban areas. However, estimates indicate that there is a large workforce of women, so their workplaces and rights must be protected. Because 93% of female workers work in the informal sector, they remain unprotected by the law.

Overview of the POSH Act

Scope and enactment of the POSH Act

A Dalit woman named Bhanwari Devi, who was employed by the government of Rajasthan in the programme of rural development, was brutally gang-raped in 1992 for attempting to curb the practice of child marriage at that time. It was seen that women working in this industry were exposed to many hazards on a daily basis, thus, demonstrating the need for safeguards to be implemented.

Under the banner of Vishakha, numerous women’s rights activists and lawyers had filed a Public Interest Litigation (PIL) before the Supreme Court of India. The Vishakha Guidelines were created as a result of a petition filed by Vishakha and four other women’s organizations in Rajasthan against the State of Rajasthan and the Union of India. In August 1997, the Supreme Court in Vishakha v. the State of Rajasthan (1997) issued a judgment providing guidelines for dealing with sexual harassment at work. It was seen as a significant legal victory for women’s groups in India. Therefore, the issue of sexual harassment found recognition in India in 1997, and the action was the result of a combined effort between non-governmental organizations, feminists, and lawyers. Essentially, the Supreme Court brought to the public’s attention the issue of sexual harassment in the workplace. The Apex Court noted the following in acknowledging the issue:

“the incident reveals the hazards to which a working woman may be exposed and the depravity to which sexual harassment can degenerate; and the urgency for safeguards by an alternative mechanism in the absence of legislative measures…”

In order to address the urgency of the issue, the Supreme Court set out guidelines that highlight the rights of women in international covenants. Various international covenants, such as the Beijing Declaration at the Fourth World Conference on Women, and the Covenant on Elimination of Discrimination against Women, led the Court to come up with a definite recognition when it comes to sexual harassment in the workplace. Historically, sexual harassment was viewed as a part of employee misconduct or as a criminal offence if the conduct triggered the provisions of various laws in effect. The legal scenario, however, changed after this case, with the issue becoming an offence.

By establishing the Vishaka Guidelines, the Supreme Court established that workplaces, institutions, and people in a position of responsibility must uphold the fundamental right to equality and dignity that working women enjoy. Institutions were required to meet three key obligations:

Prohibition
Prevention
Redress

The POSH Act was then notified by the government in 2013. Through compliance with the above-mentioned three elements, the Act seeks to ensure women’s equal access to the workplace, free from sexual harassment, as stipulated in the Vishaka judgment. Furthermore, the Act provides women with a civil remedy in addition to other laws currently in effect. As a result, a woman who reports instances of sexual harassment at work has the right to pursue civil as well as criminal remedies.

Preamble to the POSH Act

Parliament enacted the Act in the 64th year of its Republic, thereby extending its scope throughout the country. This Act came into effect on December 9, 2015, following the enforcement of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (POSH Rules). A law generally becomes effective as soon as it is notified, however, in this case, the Act was published by the Ministry of Law and Justice (Legislative Department) for general information. It stated specifically that the Act would come into force after the rules were published in the Gazette, which took almost 8 months to complete.

A statute’s preamble describes the legislative intent and the persons it intends to benefit. In its preamble, the present Act clearly states that its purpose is to protect women from sexual harassment at work, prevent and redress complaints of sexual harassment, and provide for matters connected with or incidental to such harassment.

Statement of object and reasons of the POSH Act

There is a need for special laws when a person, a group, or a section of society commits acts that are detrimental to another person, group, or section of society, and the present social system is inadequate in stopping such acts. Such situations require laws, which are implemented and enforced through the state apparatus, in order to serve as a deterrent through fines, sentences, or damages, etc. Thus, it became imperative to enforce the present Act as women joined the workforce in increasing numbers and faced new challenges in the workplace.

Any statute can be understood and interpreted by reading their introductions and ‘Statements of Objects and Reasons’, which elaborate on the rationales that led to the introduction of the statute. Specifically, the Statement of Objects and Reasons of this Act states that sexual harassment violates women’s fundamental rights to equality, life, and liberty, as provided under Articles 14 and 15 of the Constitution of India, as well as their right to life and dignity under Article 21 of the Constitution. It is also important to note that sexual harassment can also be considered a violation of people’s right to practice any profession or to carry on any occupation, trade, or business, which includes the right to be free from sexual harassment in their workplace.

The Statement of Objects and Reasons of the Act incorporates Article 11 of CEDAW as a part of its Objects and Reasons, which requires States Parties to take all appropriate measures to eliminate discrimination against women in the workplace. Sexual harassment is one such form of gendered violence, which can seriously impair equality in employment for women. Furthermore, this legislation contains provisions that protect all women regardless of employment status. Additionally, the Statement of Objects and Reasons acknowledges that the Supreme Court has provided guidelines to address this issue until appropriate legislation is enacted.

Key definitions under the POSH Act

Sexual Harassment

Similar to what was stated in the Vishaka Judgment of the Supreme Court, the POSH Act defines sexual harassment under Section 2(n) of the Act. The POSH Act states that ‘sexual harassment’ is any unwelcome sexual behaviour, whether directly expressed or implied, and includes the cases of physical contact and advances, or a sexual favour demanded or requested, or making remarks with sexual overtones, or showing pornography or other offensive material, or acting in an unwelcome sexual manner through physical, verbal, or non-verbal means.

There are a number of circumstances that may constitute sexual harassment, including those listed below if they occur or are present during an act or behaviour of sexual harassment:

A promise of preferential treatment at work;
A threat of adverse treatment in the workplace that is implied or explicit;
An implied or explicit threat regarding a person’s employment status, present or future;
Interference with work or creating an intimidating or offensive or hostile work environment; or
Humiliating treatment likely to affect the lady employee’s health or safety.

The POSH Act defines sexual harassment as either direct or implied conduct, regardless of whether it is physical, verbal, or written. The distinctive feature of this type of behaviour is that it is undesirable and unwelcome. Among the forms of sexual harassment is quid pro quo sexual harassment, which is a form of sexual blackmail. A typical scenario of quid pro quo harassment involves a person in power pressuring an employee for sexual favors in exchange for advancement or the threat of adverse employment action.

In addition to creating an intimidating working environment, the definition also refers to creating a hostile working environment. For example, a work environment in which a woman employee feels embarrassed because she gets unwelcome comments about her body type. The burden of determining whether the harassment suffered by the victim amounts to a hostile work environment rests on the internal committee because there is no fine line test specified under the Act. Additionally, what constitutes sexual harassment varies from case to case depending on the facts and the context.

Employee

The POSH Act, under Section 2(f), defines employees broadly to include regular, temporary, and ad hoc employees. In accordance with the section, an employee is an individual who is engaged in a daily wage position, either directly or through an agent, a co-worker, a probationer, a trainee, and an apprentice, whether remunerated or not, whether on a voluntary basis or otherwise, and whether or not the terms of employment are express or implied.

Workplace

Although the Vishaka Guidelines only applied to traditional office settings, the POSH Act introduces the concept of an extended workplace, recognizing that harassment may not necessarily occur in the workplace itself. In accordance with Section 2(o) of the Act, a ‘workplace’ refers to any place visited by an employee as part of his or her employment, including any transportation provided by the employer for traveling to and from work.

In Saurabh Kumar Mallick v. Comptroller & Auditor General of India (2008), the respondent who had been facing departmental inquiries for allegedly harassing a senior woman officer contended that he could not be accused of sexual harassment at work since the misconduct reportedly occurred not at work but in an official mess in which she resided. A further argument made was that the complainant was in a senior position to the respondent, so he could not extract any favour from her and, therefore, the act did not constitute sexual harassment. This was deemed as clearly misconceived by the Delhi Court in its consideration of the case. According to the Delhi High Court, the official mess, where the employee reported being sexually harassed, fell under the definition of a workplace under the POSH Act.

Important provisions of the POSH Act

Complaints Committee under the POSH Act

Internal Complaints Committee:

In accordance with Section 4 of the POSH Act, every office or branch of an organization employing ten or more employees must have an internal committee dedicated to hearing and resolving sexual harassment complaints. It is important to note that as a result of the Repealing and Amending Act, 2016, the Internal Complaints Committee was renamed the Internal Committee.

In the case of Global Health Private Limited & Mr. Arvinder Bagga v. Local Complaints Committee, District Indore and Others (2017), the Court held that there should be a fine imposed under the POSH Act for failing to constitute the IC. Therefore, it is essential to comply with the composition of the committee, which is mentioned as follows:

There shall be a female Presiding Officer who is an employee at a senior level at work:
There should be at least two members among the employees. These members shall be ideally committed to women’s causes or have social work experience or legal knowledge.
An external member is required, who should be from NGOs or associations that support the cause of women or have experience in sexual harassment issues. As per Rule 4 of the POSH Rules, the external member shall be an individual with expertise in workplace sexual harassment issues, such as a social worker with at least five years of experience or somebody familiar with labour, service, civil, or criminal law.
At least one-half of IC’s total must comprise female members.
IC members have a maximum term of three years.
An inquiry must be conducted by at least three members of the IC, including the Presiding Officer.

Local Committee

The POSH Act provided limited relief for sexual harassment at the workplace until recently. An employer was not required to provide an internal redress mechanism to address complaints of sexual harassment. Now, a Local Complaints Committee must be formed at the district level for the purpose of handling complaints of sexual harassment in the workplace when there is no internal mechanism in place.

Under Section 5 of the POSH Act, the district governments are required to set up local committees to investigate and respond to complaints of sexual harassment from the unorganized sector and from establishments where the IC has not been formed due to fewer than 10 employees of the establishment or when the complaint is against the employer. The formation of a LC is particularly relevant for instances of sexual harassment of domestic workers or when the complaint involves the employer or a third party not employed by the company. It is important to note that as a result of the Repealing and Amending Act, 2016, the Local Complaints Committee was renamed the Local Committee.

The composition of LC is as follows:

A chairperson, who shall be a woman. Such a woman shall be a women’s rights activist and an eminent social worker.
A local woman, who shall be nominated amongst women who work in blocks, talukas, tehsils, wards, and municipalities within the district.
NGO members. There shall be two NGO members, one of whom must be a woman from an organization dedicated to women’s issues, or a person knowledgeable about sexual harassment issues. It is recommended that at least one of the members has legal experience. Further, a woman belonging to one of the Scheduled Castes or Scheduled Tribes should be at least one of the members.

Powers of the committees

In order to investigate complaints of workplace sexual harassment, the Internal Committee and Local Committee have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 when they try a suit concerning:

Summoning and requiring the attendance of any person and interrogating him under oath;
A requirement to discover and produce documents;
Other matters as prescribed.

Procedure of complaint

Sexual harassment complaints at work can be lodged either with the Internal Committee or Local Committee in accordance with Section 9 of the POSH Act. The following is the procedure:

An aggrieved woman may file a complaint of sexual harassment at work within three months of the date of the incident and, in the case of repeated incidents, within three months of the most recent incident.
The Internal Complaints Committee / Local Complaints Committee may extend the time limit if the aggrieved woman is not able to submit a complaint within the stipulated period of three months. The committee must be satisfied that the circumstances prevented the woman from forwarding a complaint within the specified time period. An extension of time must be justified in writing by the committee.
Furthermore, if the woman cannot make a complaint in writing, the Presiding Officer, any member of the Internal Complaints Committee, or the chairperson, or any member of the Local Committee will provide her with all reasonable assistance to file a complaint in writing.
Moreover, as per Rule 6(i) of the POSH Rules, it is provided that if an aggrieved woman is physically or mentally incapable or dies, or otherwise is unable to lodge a complaint, her legal heir or her relative or friend, or her co-worker, or an officer of the National Commission for Women or State Women’s Commission, or any person who has knowledge of the incident, with the written consent of the aggrieved woman, may do so.

Conciliation

According to Section 10 of the POSH Act, an Internal Committee/Local Committee can attempt to resolve a complaint between the parties, at the request of the aggrieved woman, through conciliation by reaching an amicable settlement. A conciliation process is basically an informal way of resolving complaints before they escalate to a formal investigation. It may, therefore, be possible for the IC to resolve sexual harassment complaints by conciliation between the parties before beginning the inquiry proceedings, although monetary settlements should not be used as a basis for conciliation. A settlement should be recorded by the Internal Committee or Local Committee, and copies should be provided to the aggrieved woman and respondent after the settlement is reached. The IC may not conduct an investigation under the POSH Act after a settlement has been reached.

Interim relief

In response to a complaint, the Local Committee or Internal Committee may recommend interim measures to the employer, including the following:

Relocation of the aggrieved woman or the respondent;
Additional statutory/contractual leave of 3 months allowed to the aggrieved woman;
Refraining the respondent from reporting on the performance (work performance) of the aggrieved woman or writing her confidential report, which can then be delegated to another employee.

Punishments and compensation

An employer may punish an employee in the following ways for engaging in sexual harassment in accordance with the POSH Act:

The punishment prescribed under the organization’s service rules;
In the absence of service rules in the organization, disciplinary action may include a written apology, warning, reprimand, censure, withholding of promotion, withholding of pay rise or increment, terminating the respondent from service, undergoing a counseling session, or performing community service; and
Reduction of the respondent’s wages to pay compensation to the aggrieved woman (Section 13 of the POSH Act).

The POSH Act, in accordance with Section 15, also provides for compensation for aggrieved women. In determining compensation, the following factors must be taken into account:

Affected employee’s mental trauma, pain, suffering, and emotional distress;
The loss of career opportunities caused by sexual harassment;
Physical and mental health treatment expenses incurred by the victim;
Whether the alleged perpetrator has a high income or a high status; and
Whether lump sum or instalment payments are feasible.
A failure by the respondent to pay the aforesaid sum will result in the IC forwarding the order of recovery to the District Officer concerned.

False or malicious complaints and false evidence

It is envisioned in the POSH Act, under Section 14, that actions will be taken against complainants who “falsely or maliciously” use the protections. According to the POSH Act, disciplinary action can be taken in accordance with the service rules of the organisation against a complainant whose allegations have been found to be false, malicious or made with knowledge that they are untrue. The statute provides for disciplinary actions when no service rules exist, including written apologies, warnings, reprimands, censure, withholding of promotion, withholding of raises and increments, terminating employment, attending counseling, and performing community service. It is further clarified in the POSH Act that a complaint need not be false or malicious just because there is insufficient proof to support it. It is true that Section 14 appears to be a saving clause, but the language of the section is regarded as a deterrent in nature. It is possible to conclude from different perspectives that the provisions incorporated in Section 14 to punish false and malicious complaints or false evidence may deter frivolous complaints, but they may also deter genuine witnesses or complainants who may not collect sufficient evidence to prove their allegations.

Confidentiality provisions

The POSH Act, in accordance with Section 16, recognizes the sensitivity associated with sexual harassment and places a high priority on maintaining confidentiality throughout the process. It is specifically stated in the POSH Act that workplace sexual harassment information shall not be subject to the Right to Information Act, 2005. Additionally, the POSH Act prohibits the dissemination of the contents of the complaint, as well as the names and addresses of the complainant, respondent, witnesses, conciliation and inquiry proceedings, recommendations of the above-mentioned committees, and the consequences of the same to the public, press, and media in any manner whatsoever.

It is important to note, however, that the POSH Act allows the dissemination of information concerning the justice directed to victims of sexual harassment without disclosing any of the victim’s names, addresses, identities, or any other particulars that could identify them. In By disclosing the results of the investigation, the employer could not only prevent similar acts of sexual harassment in the future but also convey to employees and the public that the company is serious about providing a safe and harassment-free work environment.

Section 17 provides that if a person breaches the confidentiality obligations by handling a complaint or conducting an inquiry, or making recommendations or taking action under the statute, he/she shall be punishable under the organisations’ service rules applicable to that person or, in the absence of such rules, with a fine of Rs 5,000.

The POSH Act imposes a monetary penalty of up to Rs 50,000, under Section 26, if an employer fails to constitute an IC. Upon repeating the same offence, the punishment may be doubled and/or the entity may be de-registered or have any statutory licenses revoked. However, it is not clear which business licenses are being referred to in this instance. Moreover, under the POSH Act, all offences are non-cognizable (Section 27).

Provisions related to the employer

Vicarious liability of the employer

The Vishaka guidelines allow employees to hold employers accountable for breaches of their duties. Ultimately, the Delhi High Court, in U.S. Verma, Principal Delhi Public School Society v. National Commission for Women (2009), held that employers have a personal responsibility to protect others from harm, and are not permitted to abdicate this responsibility by delegating it. The Vishaka guidelines create a fair, secure, comfortable, and safe work environment with no chances of discrimination.

In State Bank of India v. Shyama Devi (1978), the Supreme Court ruled that, before the master is liable, it must be established that the damage was caused by the wrongful acts of the servant or agent. An employer is responsible for acts of sexual harassment by its employees or supervisors at work if these acts were performed in the “course of employment“, whether or not for the employer’s benefit. Whether or not an act was committed during the course of employment is a matter of fact in each case. As Sections 13(3)(ii) and 15 of the Act only entitle sexually harassed employees to monetary compensation, not their employers, a woman who has been sexually harassed at the workplace will have no other option than to seek compensation in civil court. The employer is vicariously liable for sexual harassment in the same way as for any other tortious act committed in the course of employment.

Duties and obligations of the employer

Section 19 of the POSH Act mandates not only the establishment of an IC and the timely redress of workplace harassment grievances but also certain other responsibilities on employers, such as:

Creating a gender-sensitive workplace and eliminating the underlying causes of a hostile working atmosphere for women;
Maintain a safe work environment;
Develop and widely disseminate policies, charters, resolutions, and declarations prohibiting, preventing, and redressing sexual harassment at work;
Prominently display the consequences of acting in a manner that constitutes sexual harassment along with the composition of the IC;
Provide a list of all members of the IC, as well as their contact information;
Conduct regular workshops and awareness programs to inform employees and IC members on workplace sexual harassment issues and implications;
Provide the IC with the necessary facilities for handling complaints and conducting inquiries;
To initiate legal action, either under the Indian Penal Code, 1860 (IPC, hereinafter) or under any other law, against the perpetrator, or if the aggrieved woman so desires, against the perpetrator, where the perpetrator is not an employee, at the workplace where the incident of sexual harassment occurred;
Providing assistance to aggrieved women in filing a complaint under the IPC or any other applicable law;
Implement a policy to treat sexual harassment as a misconduct in accordance with service rules, and take appropriate action when it occurs;
Provide a report to the District Officer each year detailing the number of cases filed and their disposition;
Ensure that IC reports are submitted on time.

Drawbacks of the POSH Act

There are a number of loopholes and shortcomings in the Act that have emerged with time and prevent it from realizing its full potential today. This inadequacy and insufficiency in legislation continues to harm women. Therefore, it is vital to identify and address these discrepancies. The following are the significant issues:

Gender neutrality

There is no specific protection under the Act for other employees who may be victims of work-related sexual harassment. A woman aggrieved by sexual harassment is defined in Section 2(a) of the Act as someone who alleges that she was subjected to such an act. In Section 3, it is prohibited to harass a woman at her workplace. This Act, therefore, excludes the possibility of redress for complaints raised by men or LGBTQ+ members by limiting the scope to women only.

As women have historically been disadvantaged, this inherent bias is not at all a bad thing. The employment rights of women may have been protected and increased through gender-specific laws like these. The existence of a biased law perpetuates the age-old stereotype of a male harasser and a female victim, vitiating the concept of equality in the workplace. It is, therefore, necessary to propose a gender-neutral law which mandates that workplaces have appropriate policies for addressing sexual harassment both by males and individuals belonging to the LGBTQ+ community.

Threats of retaliation

The fear of retaliation by the harasser or organization is a large factor in women’s reluctance to report workplace harassment. The majority of victims do not wish to raise their voices against the perpetrator for fear of social stigma, embarrassment, or even further harassment. There are additional challenges that women face if they complain about senior employees, such as increasing their likelihood of hostility from their peers or supervisors, a negative reference for future employers, or even losing their employment.

The employer may take action during the pendency of the inquiry according to Section 12. The aggrieved woman could be transferred, granted leave for up to three months, or receive any other relief suggested by the court. As a result, there do not appear to be adequate measures to promote a healthy working environment and ensure her safety if she chooses to continue her employment there. Employers have a number of responsibilities under Section 19 of the Act, but none of them is to ensure that complainants are not stigmatized or harassed. Despite the fact that this is not the intent of the Act, the absence of such safeguards creates the impression that the complainant lacks security at work and must relocate elsewhere in order to feel secure again.

Limited recourse for women in the informal sector

Human Rights Watch published an extensive study in 2020 detailing the failures of the Act for women in the informal sector. The report discusses how these employees feel their incidents of sexual harassment are ‘trivial’ and they would be better served by simply ignoring them rather than participating in a lengthy legal process that often fails to satisfy their needs. The fact that complaints by women working in the informal sector are not taken into account by the Act is particularly disappointing.

Compliance audit and governmental scrutiny

As a result of Sections 21, 23, 24 and 25 of the Act, the government is responsible for monitoring the working of the Internal Committees, Local Committees, employers, and all other aspects of the implementation of the Act. Moreover, they are required to keep track of how many cases of sexual harassment have been filed and disposed of at their workplace. It is crucial to monitor compliance in order to identify gray areas and to highlight those that need further investigation. The parties responsible for failing to perform their obligations may not face any penalties without such scrutiny. The law is also less efficient when it cannot be analyzed for its shortcomings.

Procedural and technical drawbacks of the POSH Act

A number of technicalities in the Act prevent it from being fully implemented. The provisions of Section 9 stipulate that victims of sexual harassment must file a complaint within three months of the occurrence. A further three months may be granted if the Committee is convinced that certain circumstances prevented the victim from filing their complaint within the prescribed deadline. There is also no option to make anonymous complaints under the Act.

Conclusion

In developed as well as developing countries, sexual harassment continues to be an age-old practice that has crossed all the barriers of society, such as race, gender, sex, and color, for ages. Regardless of gender, an individual can experience sexual harassment in the workplace, no matter their gender. There are a variety of reasons that contribute to the occurrence of such harassment in the workplace, such as gender indiscrimination, inadequate distribution, favourable nature, and the mindset of the harasser. The act of sexual harassment is not limited to requesting sexual favours and unwanted physical contact, it may also include the psychological pressure experienced by the harasser as a result of his or her sexual assault, coercion, or unwanted sexual attention.

Clarification of applicability, accountability, implementation, and monitoring should be included in the POSH Act in order to encourage better reporting. It is important that employers and authorities adopt, implement, and encourage best practices to detect and respond to workplace harassment in order to achieve high workplace productivity. The best way to prevent such unfavourable working conditions is to actively advocate for initiatives that increase awareness and encourage prevention efforts.

FAQs

Is it possible for both men and women to be victims of workplace sexual harassment?

Sexual harassment can happen to both men and women. POSH Act safeguards/protections, however, are only available to women.

Does verbal conduct constitute sexual harassment?

The verbal harassment of a sexual nature may constitute sexual harassment. It is possible for words to be offensive in the same way as physical acts and touches. In the workplace, sexually coloured jokes, comments, and stories can lead to sexual harassment and can create an environment that is hostile.

Does the company’s HR manager have authority to investigate complaints?

No, an investigation must be conducted by the IC after the complaint has been filed.

Does every branch/office need to have an IC?

A company must set up an IC at every branch/office where at least 10 employees are employed.

Do the parties involved in a claim of sexual harassment have a chance to resolve the issue through mediation or conciliation?

Yes, a settlement may be reached at the request of the aggrieved woman, but no monetary settlement can be reached.

References

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All India Muslim Personal Law Board

By

Rachit Garg

-

July 10, 2022

0

This article has been written by Mehernaz Contractor of Siddharth Law College, Mumbai. This article provides a detailed overview of the All India Muslim Personal Law Board. It focuses on the functions and composition of the All India Muslim Personal Law Board.

It has been published by Rachit Garg.

Table of Contents

Introduction

The Muslim community follows the principles of Islam because it believes that Islam guides them in every aspect of their life. They believe that Muslim Personal Law (Shariat) Application Act, 1937 can better guide their actions rather than any source of law or statute. Muslims are always hesitant to follow any kind of a uniform code which applies to the whole of India. To implement personal laws in India, a non-governmental organization called All India Muslim Personal Law Board (AIMPLB) was constituted in 1973. It was formed to protect the Sharia laws from any law or legislation that tries to suppress them. It guides Muslims and protects their rights against issues in society.

History of the All India Muslim Personal Law Board

In the early 1970s, the government tried to suppress the Muslim Personal Law (Shariat) Application Act. The Adoption Bill was introduced in Rajya Sabha in 1972 by the Law Minister H. R. Gokhale to bring a Uniform Civil Code to India. This Adoption Bill will allow the Muslims to adopt a child but this was widely criticized by the Muslims. Islam does not recognize adoption, so the adopted child will not have similar rights as a born child. Muslims were opposed to this Bill as they believed that the government was trying to replace the Sharia law, which governed marriage, divorce, and various actions of a Muslim person. Ulema, Muslim leaders, and Muslim organizations convinced the Muslim community that the government was conspiring against them and they would lose all their rights.

Due to this, many people from the Muslim community belonging to different schools, such as Shia and Sunni schools gathered to support personal Muslim law. All the organizations met for the first time at Deoband to save the Sharia law on the initiative of Hazrat Maulana Syed Shah Minnatullah Rahmani and many other leaders. The meeting decided to hold a convention called ‘Uniform Civil Code, Adoption Bill 1972, Protection of Islamic Shariah’ in Mumbai in December 1972. The convention decided that adoption is not a part of Islam, so the bill got rejected. The Convention unanimously decided to form AIMPLB and adopted its Constitution in Hyderabad.

Some people believe that AIMPLB was formed by Prime Minister Indira Gandhi to obtain votes from the Muslim community as the Congress lacked support from the Muslim league whose intentions were to strengthen Muslim Personal Law.

Purpose of forming the All India Muslim Personal Law Board

All India Muslim Personal Law Board was formed to protect the Sharia laws. It was formed to reject the Adoption Bill, which was to be adopted as a part of the Uniform Civil Code. The aims and objectives of the All India Muslim Personal Law Board are stated below:

To adopt strategies for the protection of Sharia law and monitor the continuous application of Muslim personal law in India.
To prohibit any legislation or judgment of the Court to interfere in Muslim personal law.
To generate awareness about the applicability of Muslim personal law in the life of Muslims.
To constitute committees for implementing actions of the board in the country.
To constitute a permanent standing committee comprising Ulema and legal experts to study laws, rules, regulations, and circulars issued by the central and state governments and other governmental and semi-governmental agencies or the Bills introduced in the Parliament.
To promote a sense of harmony, goodwill, brotherhood, cooperation, and unity among followers of various schools of Islam.
To find solutions to the issues facing the Muslim community.
To set up delegations and study teams and organize conferences, seminars, symposia, public meetings, and undertake tours and publish and disseminate suitable literature for achieving the aims of the board.

Composition of the All India Muslim Personal Law Board

All India Muslim Personal Law Board comprises of executive and general committee. The Executive Committee consists of 51 persons and the general committee consists of 201 members. Women’s representation is 10% in the Executive Committee and 19% in the General Committee. Recently, AIMPLB in its two-day meeting at Kanpur appointed 30 women to the general committee and 3 women to the Executive Committee. The members of the General Committee will be from various schools and groups of Muslims. The following persons will hold an office on the Board:

A President
5 Vice Presidents
1 General Secretary
At Least 3 Secretaries
Treasurer

The term of the members will be three years. The members will have to pay an annual fee of Rs. 500/-. Once every year, the list of the office-bearers and members of the society shall be submitted to the office of the Sub-Registrar, Delhi under Section 4 of the Societies Registrations Act, 1860. Various committees are formed under the AIMPLB as stated below:

Rabita Madaris Islamia Committee

This Committee was formed to protect the Deeni Madaris. It collected all the information about the Deeni Madaris in a form so that all misconceptions about them must be removed. The committee is planning to make a framework for the information collected.

Nikahnama Committee

This Committee was formed to resolve the issues in the Nikah in the Muslim community. The committee will conduct meetings to finalize a standard Nikahnama.

Committee on Babri Masjid

This Committee was formed when the Vishwa Hindu Parishad (VHP) announced plans to construct Ram Mandir at the site of Babri Masjid in Ayodhya. The Committee appealed to the Muslim community to hold meetings or symposiums regarding the demolition of the Babri Masjid.

Committee on Social Reforms

This Committee helps to bring social reforms to the Muslim community. The Committee is also planning to hold seminars, symposia, and conventions at state and regional levels. It aims to create awareness about Islam in the Muslim community.

Committee on Darul Qaza

This committee was formed for solving the issue of Darul Qaza. The committee consists of 5 members.

Currently, S. Mohd. Rabey Hasani Nadvi is the President of the AIMPLB. Kalbe Sadiq, Jalaluddin Umri, Fakhruddin Ashraf, Sayeed Ahmed Oomeri are Vice Presidents of the board. Syed Md. Wali Rahmani is the General Secretary and Prof. Riaz Umar is the Treasurer of the Board.

Executive Committee

The executive committee of the AIMPLB consists of 51 members. Out of 51 members, 35 members are elected by the members of the board, and 15 members are nominated by the President. The executive committee of the board will meet twice a year.

Powers of the Executive Committee

The powers of the executive committee are stated as below:

The Executive Committee shall implement the resolutions adopted by the Board and take measures to achieve the objectives of the Board.
It shall have the power to make by-laws.
It shall also have the power to form sub-committees for protecting the Sharia laws.

Who can be the Head of the All India Muslim Personal Law Board

The President of the Board is considered the Head of the Board. Usually, the President belongs to the Deobandi/Nadvi school of the Sunni sect. The Vice President is elected from the Shia sect. However, Ahmadis are not represented on the All India Muslim Personal Law Board.

Controversiers surrounding the All India Muslim Personal Law Board

AIMPLB has been in constant controversies because it opposed many decisions of the Supreme Court. Such judgments of the Supreme Court are stated below:

Triple talaq case – In this case, the Supreme Court held the process of triple talaq unconstitutional. AIMPLB expressed that the Court should not interfere with the Muslim personal laws. The AIMPLB has argued that uncodified Muslim personal law is not subject to constitutional judicial review and that triple talaq is an essential practice of the Islamic religion and protected under Article 25 of the Constitution. The board feels that the court interfered in the Muslim personal laws because the government wants to introduce Uniform Civil Code in India.
Hijab ban case – In this case, the Court held that wearing of Hijab is not an essential religious practice. The board felt that the court laid too much emphasis on propositions that result in discrimination, exclusion, and overall deprivation of a class from the mainstream public education system apart from the fact it seriously encroaches upon an individual’s sacrosanct religious belief. The Board believed that wearing of Hijab is deemed to be compulsory under the Islamic laws which if not followed will become a sin.

Criticisms toward the All India Muslim Personal Law Board

All India Muslim Personal Law Board has faced a lot of criticism for its decisions due to the rigid nature of the board. The Board opposed decriminalizing homosexual acts. The Board was against the decision of the Supreme Court as it considered such acts irreligious and unnatural. It is considered that the gay community will have a negative impact on society. The Board has also rejected inter-caste marriages as they believe that such marriages are regretful and unfortunate. It suggested that the representatives of mosques and madrassas across the nation must take steps to prevent inter-caste marriages. Such marriages are not legal under Sharia laws.

The Board also did not support the increase of the marriage age for women. The government wanted to increase the age of women to 21 years but the board opposed it saying that marriage is a choice and so the age for marriage should not be fixed. It felt that the government was interfering with the personal liberty of the person by imposing such a decision. The Board also opposed the decision of the government to make yoga compulsory in schools. It is believed that imposing such activity can hamper the secularism of the Constitution.

Conclusion

All India Muslim Personal Law Board was established in 1973 to preserve the culture of Islam in India. Since then it has been working to protect the Sharia laws. The Board claims that it protects the rights of the Muslims, but it only represents the Sunni sect rather than the whole community. The Board does not consider the rights of women. It forms various committees so that its aims and objectives are well maintained. AIMPLB has interfered in many cases and supported the Muslims. The Board has faced a lot of criticism due to its decisions on various matters like the Triple Talaq. The Board was formed to preserve Islam, but it is no longer looking over the community and only is worried about its existence. The board has always tried to oppose the Uniform Civil Code which could benefit the Muslim community.

Frequently Asked Questions (FAQs)

Can the Government of India dissolve the All India Muslim Personal Law Board or at least make sure that the Muslims are represented properly?

Government cannot shut down the AIMPLB merely because it does not like its opinions. The government cannot interfere in the working of the AIMPLB unless it is involved in illegal matters.

What is the All India Muslim Personal Board?

AIMPLB is a non-governmental organization that works for supporting the rights of Muslims. It aims to preserve Muslim personal law

Why does India, being a secular country, need the All India Muslim Personal Law Board?

Even though India is a secular country, Muslims believe that their lives should be regulated by the principles of Islam and not by a uniform code. Muslims want to be represented by a body that understands the community and can secure their rights.

What are the drawbacks of the Muslim personal law in India?

The AIMPLB is not very progressive when it comes to the rights of women. The Ban on triple talaq was not supported by them.

What is the take on the All India Muslim Personal Law Board’s decision to boycott the Uniform Civil Code and challenge a ban on triple talaq in the Supreme Court of India?

AIMPLB has been hesitant about giving equal rights to women. A ban on triple talaq would mean that women can live freely and exercise their rights which AIMPLB does not want. AIMPLB has been working to preserve the personal laws of Muslims, so Uniform Civil Code would mean losing the personal laws, and that is against the aims of AIMPLB.

Why does the All India Muslim Personal Law Board want to file a review petition on the Ayodhya verdict?

AIMPLB filed the review petition against the Babri Masjid-Ram-Janmabhoomi dispute case as it believed that the judgment contained some errors. It believed that building the same mosque at some other site in situations like this is not permissible as per Islamic Law.

What is the view on the move by the All India Muslim Law Board’s announcement of establishing Sharia courts in India?

In the view of the Supreme Court, the whole country should be regulated by uniform courts which are already existing as per the Constitution of India. It stated that there is no need to establish Sharia courts for separate enforcement of Muslim personal law. Uniformity must be maintained throughout the country, so that equal treatment is given to all people of different religions.

References

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Judicial system in India

Introduction

History of Judicial System in India

Functions of the Indian Judiciary

Hierarchy of courts in India

Pictorial representation of the hierarchy of Indian courts

The Supreme Court

Historical perspective

Appointment of Judges of the Supreme Court

Jurisdiction of the Supreme Court

Functions of the Supreme Court

High Courts

Appointment of judges of High Courts

Functions of a High Court

Jurisdiction of a High Court

Subordinate Courts

Appointments and composition

Tribunal

Nyay Panchayats

Lok Adalat

Judicial independence and constitutional provisions

Hurdles in the judicial system

Conclusion

Frequently Asked Questions

How many judges are there in the Supreme Court of India

Which High Court is the oldest High Court in India

When was the Supreme Court established

What are three judges’ cases

Who has been conferred with the power to remove Supreme Court judges

References

Features of a democracy

Introduction

Concept of a democracy

General features of a democracy

Liberty, Equality and Fraternity

The presence of a Constitution

Rule of Law

Popular participation in politics

Legitimacy

Periodic elections

Free and fair election

Separation of powers

Check and balances

The existence of political parties

Rule under a democratic nation

State’s obligation

Equity before law

Representation of minorities

Fundamental human rights

Freedom of speech, expression, and personal liberty

Freedom of press

Democracy in India

Features of Indian democracy

Popular sovereignty

Federalism

Rule of majority

Rule of consent

Welfare-oriented government

Compromise-based government

Multi-party system

Political equality

Collective accountability

Individual dignity

Education as a right

Right to create a union and an association

Independent judiciary

Constitution’s supremacy

Written constitution

Conclusion

Frequently Asked Questions (FAQs)

References

Environment legislation in India

Introduction

What is environmental legislation

Climate change in India

Need for environment legislation

Purpose of environment legislation

Laws related to environment in India

Environment laws in India