Indian Supreme Court Research Articles

The Influence of Professor Upendra Baxi's Writings on the Supreme Court of India

The Influence of Professor Upendra Baxi's Writings on the Supreme Court of India

An analytical study of the challenges faced by the lgbtq community in the contemporary indian society

The talk about the Rights of LGBTQ community is relatively new to Indian Society. But the ignorance and discrimination they face in the society for their sexual preferences and body types is not new for them, they have been subjected to this kind of treatment in the society for quite some time now. Although in the year 2017, Supreme Court of India has decriminalized the homosexuality in India giving a loud and clear message that it is normal and a matter of choice.And no one should be looked down upon just because they do not confine to the binaries i.e. Male and Female. But, irrespective of all this, the behavioral change is still lacking in terms of showing acceptance and normalizing the concept of homosexuality in the society. The study looks into the problems that are being faced by people belonging to LGBTQ Community in India, the level of acceptance shown by people for their choices in contemporary Indian Society and the kind of impact it has on their psychological well-being.

OVERCROWDING IN INDIAN PRISONS: DURING PRE COVID-19 AND ONGOING PANDEMIC

The Prison administration in India usually faces several challenges in prison management even during the normal times. These challenges got aggravated during the ongoing pandemic COVID-19. One of the main challenges has been the overcrowding in prisons in India. The Supreme Court of India (SC) took suo-moto cognizance of the issue of overcrowding in prisons during the pandemic and considered the situation that the prison inmates were at a high risk of transmission of COVID-19 virus due to the high rate of ingress and egress, in prisons. Thus, the Supreme Court directed the state governments to constitute a High Power Committee (HPC) and identify the prisoners including undertrials who could be released on interim bail or parole. The authors of this research paper have undertaken a study of the issue of overcrowding in Indian prisons in pre COVID-19 times and finding out if the overcrowding actually reduced in the last one year during the ongoing pandemic in view of the SC order. The authors have also explored and an alysed the reasons behind such high overcrowding in India Prisons and have made some suggestions to overcome these in future.

Organ Donation after Circulatory Determination of Death in India

Organ donation following circulatory determination of death (DCDD) has contributed significantly to the donor pool in several countries, without compromising the outcomes of transplantation or the number of donations following brain death (BD). In India, majority of deceased donations happen following BD. While existing legislation allows for DCDD, there have been only a few reports of kidney transplantation following DCDD from the country. This document, prepared by a multi-disciplinary group of experts, reviews the international best practices in DCDD and outlines the path for furthering the same in India. The ethical, medical, legal, economic, procedural, and logistic challenges unique to India for all types of DCDD based on the Modified Maastricht Criteria have been addressed. India follows an opt-in system for organ donation that does not allow much scope for uncontrolled DCDD categories I and II. The practice of withdrawal of life-sustaining treatment (WLST) in India is in its infancy. The process of WLST, laid down by the Supreme Court of India, is considered time-consuming, possible only in patients in a permanent vegetative state, and considered too cumbersome for day-to-day practice. In patients where continued medical care is determined to be futile following detailed and repeated assessment, the procedure for WLST, as laid down and published by Vidhi Centre for Legal Policy in conjunction with leading medical experts is described. In controlled DCDD (category-III), the decision for WLST is independent of and delinked from the subsequent possibility of organ donation. Once families are inclined toward organ donation, they are explained the procedure including the timing and location of WLST, consent for antemortem measures, no-touch period, and the possibility of stand down and return to the intensive care unit without donation. While donation following neurologic determination of death (DNDD) is being increasingly practiced in the country, there are instances where the cardiac arrest occurs during the process of declaration of BD, before organ retrieval has been done. Protocol for DCDD category-IV deals with such situations and is described in detail. In DCDD category V, organ donation may be possible following unsuccessful cardiopulmonary resuscitation of cardiac arrest in the intensive care. An outline of organ-specific requisites for kidney, liver, heart, and lung transplantation following DCDD and the use of techniques such as normothermic regional perfusion and ex vivo machine perfusion has been provided. With increasing experience, the outcomes of transplantation following DCDD are comparable to those following DBDD or living donor transplantation. Documents and checklists necessary for the successful execution of DCDD in India are described.

LAW & SOCIAL TRANSFORMATION – WITH SPECIAL REFERENCE TO INDIAN WOMEN & ITS IMPACT ON RULE OF LAW

Law is an instrument of social change. What kind of change is needed depends upon the society and society’s power in implementing the same through the state. Rule of law has a great force that brings change in the society according to the law has a great force that brings change in the society according to the law framed. The transformation in morals of the society is brought by the law. Law must not be static. It must be flexible i.e. it must transform with the requirements of the society at large. A flexible federation is one where society must never suffer about the rigidity of law. The situation of women is worst since centuries in India society. We have opted for flexible federation. We have framed various kinds of protective legislations for women. We have used law as a medium of social change. The social change that has been initiated in Indian society is to such an extent that it has transformed the entire society, especially the status of women, position of women, rights of women, etc have changed drastically in Indian Society. Various customs wherein exploitation of women used to take place were abolished by the Government by passing specific legislations, various conventions of the United Nations pertaining to women are signed by the Government and necessary legislations are passed by the Government for smooth implementation of these conventions. The Supreme Court of India has used law as a dynamic instrument for bringing enormous proportions of social change in Indian Society. The present days laws of India are equivalent to that of developed countries of the world. Despite such tremendous social change, the situation that we notice in India is that law does not govern the morals of the society. It is the society that governs the law. The law in India is made flexible to the extent of social distortions. It has led to the failure of Rule of Law.

The Supreme Court of India and International Law: A topsy-turvy Journey from Dualism to Monism

The Supreme Court of India and International Law: A topsy-turvy Journey from Dualism to Monism

The Indian Supreme Court's Use of Dignity in Constitutional Reasoning

The Indian Supreme Court's Use of Dignity in Constitutional Reasoning

Originality for Copyright Protection in Literary Works: After EBC v DB Modak

Originality, can be termed as the grund norm (the basic norm) for copyrightability. However, no one-size-fits-all formula is adopted by countries on this aspect, and this article first explores the position and benchmarks to determine original literary work (because even for different ‘works’ the criteria differs). Pursuant to this inquiry of identifying the ambit of the respective thresholds, the Indian perspective is analysed with special emphasis on the decision delivered by Indian Supreme Court in DB Modak. The judgement is critiqued to identify lacunae and absurdity in determining the law laid down and its application in the factual matrix. Finally, subsequent Indian decisions are looked upon by the author to find out the underlying approach by the courts wrt interpretation of DB Modak and what common threads emerge from them.

Allowability of Contribution from the CSR Funds as Deduction Under Section 80G of the Income Tax Act 1961: A Jurisprudential Critique

The deductibility of payments out of the CSR funds as a donation under the Indian tax law severely undermines the legislative intent of addressing the menace of tax subsidization of corporate CSR burden through the 2014 amendment, even though there is some judicial support for its deductibility. This article argues against its deductibility from two perspectives: firstly, from the point of view of the meaning and context of donation in Indian tax law and the tests laid down by the Indian Supreme Court in this regard; and secondly in terms of it being a colourable attempt at tax subsidizing.

Domestic Violence Current Legal Status: Psychiatric Evaluation of Victims and Offenders.

Domestic Violence Current Legal Status: Psychiatric Evaluation of Victims and Offenders.

Ethics in Psychiatric Research.

Ethics in Psychiatric Research.

Value of Medical Evidence in alleged Medical Negligence Case: Recent Views of Supreme Court of India

Value of Medical Evidence in alleged Medical Negligence Case: Recent Views of Supreme Court of India

Tax Exemptions for Charities: Indian Supreme Court expounds the law

Tax Exemptions for Charities: Indian Supreme Court expounds the law

N.R.C. C.A.A. and the Changing Concept of Identity in Indian Perspective

Migrations of tribe, people, race from one place to another for socio-economic-political reasons are as old as evolution of human race. According to archeologists, the first hominid species originated from Africa had been migrated to all over the globe. However in modern era, migrants from one country to another withoutproper documents and legal process are characterized as “Illegal immigrants.” In 1947 A.D. the Indian Sub-continent had been broken in-to two separate Nation State of India and Pakistan as part of decolonization process from almost two century old British colonial regime. Very huge quantities of people had to migrate from both these two lands. The Indian Constitution had made provisions to provide Indian citizenship to the migrants through legal process. To determine who genuine Indian citizens were, the N.R.C. was first prepared in 1951. It was decided that migrants from Pakistan will be given Indian citizenship till the first January, 1966. However during the 1970s, Liberation war had been fought between Pakistan army and Bengali speaking resident of East Pakistan supported by Indian Govt. In this period, large amount of migrants from East Pakistan had been entered in different Indian provinces for economic-political stability. According to the book “Bangladesh Ke swatantra Sangram Mein Bharat Ka Yugdaan” authored by salaam Azad, the migrant no was 9899 305. After establishment of Bangladesh in 1971, Mujib Treaty was signed between India and the new Country. Indian Govt agreed to provide citizenship to all Bangladeshi migrant residing in Assam till 24.3.1971. The Assam accord signed by the Indian Govt. and Assam’s ethnic associations cemented the agreement. However during the last three decades illegal migration from Bangladesh to Assam had been increased rapidly. Out of 33 districts of Assam, 9 have been over crowded with these Bangladeshi illegal immigrants. This changed demography of these districts and native ethnic –religious groups became minorities in their forefathers’ land. In 2012 a clash occurred between Bodo and Bangladeshi Muslims in the Bodoland territories in which more than 70 people had died. In this background, Assam Samhita Maha Sangh applied to Supreme Court for determining illegal migrants. In response, Indian Supreme Court ordered to update the N.R.C list in 2014.The process began in 2015. Out of 3.29 Corer applicants, 2.89 Cores have made to included themselves into the updated list. In 2016, the Indian govt. introduced Citizenship Ammendment Bill in house Of the People with the aim of providing Indian citizenship to Hindu, Sikh,Parsi, Christian, Jain and Buddhist illegal immigrants from Afganistan, Bangladesh and Pakistan. However this acts this facing criticism and protest from both opposition Indian political parties besides common masses. Several opposing party spoke person labeled this act and process as communal and anti-Muslim in nature. Besides, political parties, common people created mass protests against amendment of Indian citizenship through offline and online platform. In Sheen Bag, Delhi Muslim womenfolk actively protested. They set up community kitchen, political discourse arena, public library etc. This model was followed by other regional centers of protest through all over India. It is my aim in this essay to analyze changing concept of Indian people’s legal and political identity on the background of N.R.C, C.A.A. I will use both primary and secondary sources

Duty without liability: The impact of article 12 of the International Covenant on Economic, Social and Cultural Rights on the right to health care in Nigeria

The right to health care under article 12 of ICESCR is an instrumental right because it bears vital linkages to the realisation of other rights. For the many Nigerians living in poverty, their health may be the only asset on which they can rely for the exercise of other rights, such as the right to work or the right to adequate housing. Conversely, ill-health can be a liability to the many people living in poverty in Nigeria, even more so in the absence of equal access to affordable and essential healthcare services. This article aims to review the implication of article 12 of ICESCR on some of the existing initiatives for achieving the right to health care in Nigeria, especially in respect of human rights law and policy. The article argues that for Nigeria to meet its international obligations under the right to health care, it must commit to adequate funding of healthcare services and engage with regional and international partners to ensure compliance with article 12 of ICESCR. Given that the right to health care presently is not justiciable in Nigeria because of the ouster clause contained in section 6(6)(c) of the Nigerian Constitution, the article calls for an attitudinal change in the judicial perception of economic and social rights that come before the courts. It urges Nigerian courts to adopt the principle of the interdependency and indivisibility of rights, whereby judicial measures to enforce the right are given effect through the formally-enforceable civil and political rights contained in chapter four of the Nigerian Constitution. The Indian Supreme Court is reputable for taking this approach to the interpretation and enforcement of economic and social rights because the enjoyment of civil and political rights is linked to the satisfaction of economic and social rights, such as the right to health care. Finally, because of the importance of health care to a life of dignity, the article calls for Nigerian courts to adopt a progressive and broader approach when dealing with economic and social rights because of the evident connection between, for example, the right to health care and the right to life.

Struggle for Substantive Justice and Community Development: Transgender Subjects in Contemporary India

This paper discusses the transgender community's fight for justice and developmental rights since 2014 and the response of the Indian Government toward this assertion. The point of choosing 2014 as the starting point is not because the fight for their justice actually begins in this year but because India witnessed an intensification and an increase in public visibility of transgenders’ mobilization following the recognition of members of transgender communities as legal citizens through the landmark Indian Supreme Court (Court) verdict called the National Legal Services Authority Union of India (NALSA). In documenting transgenders’ mobilization and the state's response, the author has substantially relied on secondary sources—newspaper articles and pieces in magazines, blogs, and other online community networks. The narratives of a few transgender activists and intellectuals reaffirm the critiques offered through the media and online community blogs and networks. It gives one the impression of a neoliberal state, which, while willing to protect the constitutional rights of many marginalized groups, finds it hard to fulfill promises that might require the allocation of substantial fiscal and monetary resources. The consistent collective mobilizations of the transgender communities, however, resulted in some concrete gains and developmental rights.

Functioning of National Green Tribunal: Prospective and Problems

So far as the importance and degradation of environment is concerned; the nature and environment has its own path. The human being is only factor who has disturbed the balance of nature and environment through various means by so called “Development programs”. It gives rise the use of unnatural factors, which affect the environment in various ways such as air pollution , water pollution ,frequency pollution ,hazardous waste pollution . India being a developing country trying to achieve number of objectives for the benefit of general public and for nation as a whole. India has ample of natural resources and it uses such resources in order to bring about the development, but control over such unilateral use and over exploitations of such resources is required to be made. On the other hand Indian judiciary is playing the vital role in the development of Environmental Law, almost in all forms of pollution whether it is on air, land or water. Supreme Court of India has issued directions to save environment from continues pollution but with the rapid development, the consequential rapid pollution also emerged and that is the problem every developmental activity is supposed to reach under the scrutiny of the Court. To control overcome the world wide degradation; some efforts and steps were initiated by united nation at Stockholm conferences in the year 1972, which resulted a milestone in the human history; where the active initiative taken place at National and International level for the protection of Environment. And so far as India is concerned; the awareness and influence of these conferences is seen by enactment of various environmental laws over the period time. At the same time judiciary has also shown judicial activism to safeguard the environmental interest and thereby lessened the interference of human being in the parlance of degradation of environment. In (M. C. Mehta case)1, Supreme court said that where the environmental matter involves the assessments of scientific data requires to set up environmental court regional basis with professional Judge and two experts, keeping in view expertise required for such adjudication involves assessment of scientific data.

Pandemic and community’s sense of justice through suo motu in India

ABSTRACT An ideal citizen centric society wedded to the democratic governance always keeps its laws in motion to build an egalitarian and just order. Aesthetic virtue of law lies in the realisation of justice and the creation of an egalitarian order. Against this backdrop, the present paper aims to examine the approach of the Supreme Court of India (SCI) towards COVID-19 Pandemic through suo motu proceedings from various perspectives of jurisprudence and constitutionalism. The government claimed to have strived intensively with full vigour but the response due tolack of preparedness and intense gravity of the catastrophe, the efforts of the government appeared negligible. It warranted prompt revisit of priorities which compelled the SCI to intervene and evaluate the legitimacy of the executive action. Furthermore, it impelled to examine the role of the SCI in responding to the community’s sense of justice and humanising justice. The paper presents the solution to the paradox generated out of the inherent friction between constitutional authority of judicial review and resistance of judicial review of executive actions by a populist government. The scope of the discussion has primarily been confined to Orders of the SCI in suo motu hearings and examined accordingly.

The legal regime of competition in India

Abstract The study of the competition legislation in India has as justification the fact that the indian economy has one of the biggest growth rates in the world, India being the biggest democracy in the world. At the beginning, India had its own competition law, called the Monopolies and Restrictive Trade Practices Act 1969 (MRTP Act). After the initiation of economic liberalization in 1991, it became imperative to put in place a competition law regime that was more responsive to the economic realities of the nation and in accordance with international practices. In 2002, the Indian Parliament voted for a new law, Competition Act, to regulate business practices in India. The Competition Act has as its goal to regulate three types of conduct (anti-competitive agreements, abuse of a dominant position and combinations). The Competition Act was amended by the Competition (Amendment) Act in 2007 and 2009. The Competition Act has also created a new enforcement body, the Competition Commission of India (CCI), which is responsible for the enforcement of the Competition Act. According to the provisions of the Competition Act, is allowed to make an appeal to the Competition Appellate Tribunal (COMPAT) against the decisions of the CCI. A further appeal from the decision of the COMPAT may be submitted before the Supreme Court of India. In the same, the Competition Act is taking into consideration its enforcement with the aid of mutual international support and enforcement networks across the world.

The Judicial Fix for Forest Loss: The Godavarman Case and the Financialization of India’s Forests

In India, the setting up of large projects in forest areas can be undertaken only after government permission is obtained under the Forest (Conservation) Act (FCA) of 1980. Today, this approval process includes the enumeration and valuation of forest loss, and the financing of compensatory afforestation schemes to offset the loss. These procedures were designed through the orders and judgements of the Supreme Court of India in a set of cases that started in 1995 and continue to this day. These procedures are purportedly aimed to protect and restore forest ecologies in India. In this article we analyse the Supreme Court’s processes and orders between 1996 and 2006 which transformed the political ecology of forests in India. The judicial and expert discourses treated forest regulation and conservation as a techno-managerial exercise, separating it from social-ecological concerns such as historical dispossession of Adivasis and other forest-dependent people, and violent state suppression of diverse forms of forest management. The judicial interventions are instructive to understand the policy processes of green neoliberalism and the implications of the financialization of forests on environmental governance in India.