In India, more has been said about the miscarriage of justice, than of its proper dispensing. In many cases, money, power, vested interests, and even simple prejudice stand in the way of justice. But a truly democratic and constitutional system is still possible in this large, diverse nation of ours, and these important decisions given by the Supreme Court of India, the country’s apex decision making body, prove just that:
Back in the ‘70s, there was a long-drawn battle between the judiciary and government over Article 368 of the Constitution, which defined how much power the Parliament had to amend the Constitution itself. It was a time when the then Prime Minister, Indira Gandhi, had begun to make several significant changes to the Constitution. One of the biggest things at stake, then, were the Fundamental Rights of Indian citizens. The case, which was filed by Kesavananda Bharati, resulted in the “basic structure” doctrine, meaning that the Parliament could at no point change the basic structure or essential features of the Constitution. The Supreme Court pretty much saved Indian democracy, by ruling that the Parliament could not have unrestricted and unlimited power to amend the Constitution of India.
After conducting a nationwide survey of child labour in factories, activist-lawyer M. C. Mehta filed a writ petition to the Supreme Court in 1986, drawing everyone’s attention to the children working in match-manufacturing units in Sivakasi, Tamil Nadu. It took until 1996, but Mehta’s efforts paid off when a three-judge bench from the apex court ruled that children below the age of 14 could not be employed in hazardous work, and instead must be given free and compulsory education (under Article 45 of the Constitution).
In 1992, four men from the upper-caste Gujjar community in Rajasthan assaulted a potter named Mohan Lal Prajapat, and when his wife and social worker Bhanwari Devi rushed to his aid, they assaulted and gang-raped her. A women’s rights group called Vishakha then took up her case, and the resulting the Supreme Court judgement is today known as the ‘Vishakha Guidelines’. The judgement also drew on international law, namely the Convention on the Elimination of all Forms of Discrimination Against Women (1979) to which India is a signatory. These guidelines laid the foundation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, which today mandates the rules and processes that workplaces must follow to ensure safety and dignity to working women.
In December 2015, a two-judge bench ruled in favour of having a minimum education requirement for persons wanting to become members of panchayats, the civic body at the village level. The apex court upheld the Haryana Panchayati Raj (Amendment) Act 2015, which mandates that general category candidates must have passed Class X. For women and Dalit candidates the minimum requirement is Class VIII, and for Dalit women it is Class V. The move has come under criticism by many, including Nobel Laureate Amartya Sen, for in effect excluding a massive number of already marginalised people who have not had access to education. However Haryana Chief Minister Manohar Lal Khattar said: “This amendment will enable elected representatives to be more accountable, as they would no longer be able to cite illiteracy as an excuse.” These amendments are likely to change minimum education requirements in other civic bodies as well.
In April 2014, a two-judge Supreme Court bench delivered the landmark ruling that made the State legally recognise ‘the third gender’. While the term ‘third gender’ is highly problematic, the Supreme Court judgement has set things in motion by not just granting legal status, but asking that the majority of socially, economically and politically deprived trans people be viewed as OBCs and given benefits. The judgement led almost immediately to the first census of trans people, which resulted in the figure 4.9 lakh. It also led to the introduction of Tiruchi Siva’s Private Member’s Bill on transgender rights in the Rajya Sabha, in December of the same year, which brought in right to self-determination, and recognising atrocities against the community. However, the original bill was subsequently watered down in 2016.
In may 2014, mining in Odisha had to come to a screeching halt as the Supreme Court ordered a ban on 26 mainstream mines (including those owned by TATA, Aditya Birla, and SAIL). The ban was temporary, and due to non-renewal of licenses for the period after 2007. The order came after a Public Interest Litigation was filed by Common Cause, which in turn drew extensively on a report compiled by the Justice M. B. Shah Commission of Enquiry on illegal iron and manganese ore mining in the state. While the ban was only an interim measure, it did show the Court’s willingness to be firm on the matter. In fact, it was just last year that the Court turned down a plea from the Odisha Mining Corporation, made against the decision of 12 gram sabhas. In this case, the Court left it up to the local civic bodies, allowing them to voice their concerns about environmental damage and other threats to tribal communities in the area.
Under clause (b) of Section 19 of the Guardians and Wards Act, 1890, a woman (married or not) cannot apply for or be granted sole guardianship of her child, when the father is alive and of ‘sound mind’. But in July 2016, the Supreme Court ruled in favour of a Christian woman seeking guardianship of her son. The judgement then led to the amendments in the act, which then allowed unwed, unmarried or separated mothers to legally become the sole guardians of their children or wards, without the court needing the consent of the biological father.
Between 2012 and 2015, a total of 10 people had been arrested under Section 66A of the Information Technology Act. Among these were artist Aseem Trivedi, two young women named Shaheen Dhada and Renu Srinivasan, and Jadavpur University professors Ambikesh Mahapatra and Subrata Sengupta. Why? Because they had shared content online that was interpreted by some as “offensive” towards emblems of power like. For that alone, Section 66A allowed the state to fine or imprison a person for up to three years. Noting that the law had become fodder for attacking citizens online, 21-year-old Shreya Singhal filed a Public Interest Litigation case against Section 66A, in 2012. The case ultimately led to the Supreme Court striking down Section 66A in its entirety. In its ruling, the court said: “It is clear that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right.”
In September last year, the Supreme Court came down hard on the issue of forced sterilisation, ordering all states to put an end to nightmarish sterilisation camps. The judgement came in response to a petition filed by activist Devika Biswas, following the horrific and botched sterilisation of 53 women in Araria, Bihar. The Court viewed the camps as infringing upon the “reproductive freedoms of the most vulnerable groups of society whose economic and social conditions make them easy targets to coercion.” Further, it held the Centre and states responsible for exacerbating the situation. Given the damage already done by such camps, the judgement includes guidelines on compensating survivors.
More recently, the Supreme Court has also taken a firm stand on a number of other issues. For example, the case of State of Madhya Pradesh Vs. Madan Lal, dating back to 2008. The accused raped the complainant when she was just 7-years-old, and then the absurd idea of reaching a compromise through marriage was floated. In a strongly worded statement, the court opposed such kinds of ‘compromises’. Yet another example was a recent hearing in April, when the Supreme Court upheld a woman’s right to choose whom she loves. Both instances are likely to have a positive bearing on pending or future cases of sexual violence.
We are told that no one is above the law – but various threats to some of our most basic rights and freedoms have merged from every quarter, be it the smallest unit of society (the family) right up to the various seats of power that govern our nation. And while threats continue to exist, each of these rulings have certainly laid the foundation for us to keep fighting for dignity, freedom, peace, and equality.