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Caste Based reservation and affirmative actions

Kalpana Bisen
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Caste Based reservation and affirmative actions

Introduction

Caste-based reservation and affirmative action are integral components of India’s social justice framework, aimed at addressing historical injustices and providing opportunities for marginalized communities. These policies have been instrumental in promoting social mobility and ensuring representation in government jobs, educational institutions, and legislatures. This paper explores the distribution of reservations, the emergence of Dalit elites, the concept of the “creamy layer,” and the impact of the Mandal Commission’s recommendations for the Other Backward Classes (OBC). Through a critical examination of these issues, the paper assesses the effectiveness and challenges of caste-based reservation and affirmative action in contemporary India.

 The Distribution of Reservations

In the aftermath of Indian independence, the framers of the Constitution recognized the need for affirmative action to uplift historically oppressed communities, particularly the Scheduled Castes (SCs) and Scheduled Tribes (STs). Reservations were introduced in the bureaucracy, universities, and electoral constituencies with the expectation that the rise of Dalit elites would inspire confidence among other members of the community. The underlying rationale for reservations was that the success of a few would act as a catalyst for broader social transformation.

However, historical evidence suggests that the anticipated outcomes were not fully realized. Many SC leaders elected from reserved seats were often co-opted by upper-caste-dominated political parties like the Congress, leading to a dilution of their commitment to advancing Dalit interests. B.R. Ambedkar, a key architect of India’s reservation policy, expressed concerns that the few educated Dalits who benefited from affirmative action were more preoccupied with power struggles within the community than with addressing the needs of the “downtrodden brethren”. This division between Dalit elites and non-elites has led to a scenario where affluent Dalits increasingly identify with upper castes rather than their SC compatriots.

The internal cleavages within the Dalit community are exemplified by the conflict between the Madigas and the “elite” Malas in Andhra Pradesh, who have competed for state resources. This fragmentation underscores the complexity of implementing reservation policies that are intended to promote unity and collective advancement among marginalized groups.

 The Rise of the “Creamy Layer”

One of the most contentious issues in the discourse on caste-based reservation is the emergence of a “creamy layer” within the SC and OBC communities. The term “creamy layer” refers to the relatively affluent and well-educated members of these communities who have disproportionately benefited from affirmative action policies over time. Critics argue that the continued access to reservations by the creamy layer undermines the spirit of affirmative action, as it perpetuates inequalities within marginalized communities.

In Tamil Nadu, for instance, certain castes have availed reservations in the bureaucracy since the colonial period, despite many members now holding professional jobs, enjoying urban lifestyles, and being well-versed in English. This phenomenon raises questions about the effectiveness of reservations in achieving social justice for the most disadvantaged sections of society. A potential solution to address these inequities is the introduction of creamy layer exclusions for SCs, similar to the policy already in place for OBCs.

The creamy layer exclusion for OBCs, implemented following the recommendations of the Mandal Commission, aims to prevent the monopolization of reservation benefits by the more affluent sections of the community. This policy could be extended to SCs to ensure that the benefits of affirmative action reach those who are truly in need. However, implementing such exclusions is fraught with challenges, including the difficulty of accurately identifying the creamy layer and the potential for further fragmentation within marginalized communities.

 The Mandal Commission and OBC Reservations

The introduction of reservations for OBCs through the Mandal Commission in 1990 marked a significant expansion of affirmative action in India. The OBCs, a diverse collection of castes situated above SCs but below the “twice-born” forward castes, were allocated a 27% quota in government jobs and state-run universities. The Mandal Commission, initially set up in 1978, was tasked with investigating the case for OBC reservations, but its report was shelved by the Congress government upon completion. It was only in 1990, under Prime Minister V.P. Singh, that the recommendations were revived, primarily as a strategy to garner electoral support from backward classes amid the rise of the Hindutva movement.

The Mandal Commission’s recommendations were controversial, with critics accusing the Commission of making arbitrary decisions and inflating demographic figures to justify the case for OBC reservations. The Commission’s reliance on outdated data from the 1931 caste-based national census further fueled the controversy.

Despite the controversies, the implementation of OBC reservations had a profound impact on India’s political landscape. The Mandal recommendations triggered a “second democratic upsurge,” characterized by increased electoral participation among lower castes, particularly in the Hindi Belt. For the first time, OBC MPs began to challenge the dominance of upper-caste MPs in the Lok Sabha. This political awakening among lower castes in northern India contrasted with the earlier assertion of political interests by lower castes in southern and western states, where they had greater numerical strength.

The rise of OBC reservations also highlighted the use of affirmative action as a tool for political mobilization. The Mandal project was not only aimed at improving the socio-economic conditions of OBCs but also at enabling them to find expression through political participation. However, the politicization of reservations has led to concerns about the sustainability of affirmative action as a means of achieving social justice, especially when it is used as an instrument of electoral appeasement.

 Challenges and Criticisms of Caste-Based Reservations

While caste-based reservations have played a crucial role in promoting social mobility and representation for marginalized communities, they are not without challenges and criticisms. One of the primary criticisms is that reservations undermine the concept of merit, leading to a perceived erosion of self-reliance among socially disadvantaged groups. Critics argue that reservations create a dependency on state support, which may discourage individuals from striving for self-improvement.

On the other side of the debate, proponents of reservations argue that the very notion of merit is inegalitarian, as it is a social construct rigged against historically deprived groups in India. They contend that merit cannot be divorced from the socio-economic context in which individuals are raised, and that reservations are necessary to level the playing field for those who have been systematically marginalized.

Another significant challenge is the growing demand for reservations from various communities that do not traditionally fall under the SC, ST, or OBC categories. This includes economically disadvantaged sections of forward castes, who argue that economic criteria should also be considered for affirmative action. The introduction of a 10% reservation for economically weaker sections (EWS) in 2019, irrespective of caste, reflects this evolving debate on the scope and criteria for reservations in India.

Moreover, the implementation of reservations has often been marred by inefficiencies and corruption. Instances of “fake” caste certificates, where individuals from non-reserved categories falsely claim SC, ST, or OBC status to avail benefits, have raised concerns about the integrity of the reservation system. Ensuring that reservations reach the intended beneficiaries remains a significant challenge for policymakers.

 Conclusion

Caste-based reservation and affirmative action have been central to India’s efforts to address historical injustices and promote social equity. While these policies have undoubtedly facilitated social mobility and representation for marginalized communities, they have also given rise to new challenges, including the emergence of a creamy layer, the politicization of reservations, and debates over merit and economic criteria.

To ensure that the benefits of reservations are equitably distributed and that affirmative action remains a tool for social justice, it is essential to address these challenges through robust policy interventions. This may include refining the criteria for reservations, introducing creamy layer exclusions for SCs, and enhancing the transparency and accountability of the reservation system. Ultimately, the success of caste-based reservations will depend on their ability to adapt to the evolving socio-political landscape while staying true to the principles of equity and social justice.

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The influence of International Treaties on Domestic Laws

Shreya Sharma
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The influence of International Treaties on Domestic Laws

International treaties significantly influence domestic laws in India, shaping legal standards and policies across a wide range of issues. The interaction between international agreements and Indian domestic law involves a complex legal framework that includes the Constitution, legislative processes, and judicial interpretation. This article examines how international treaties affect domestic laws in India, focusing on their incorporation, implementation, and impact on the legal system.

Constitutional Framework and Incorporation

India’s approach to international treaties is guided primarily by the Constitution of India, which delineates the relationship between international agreements and domestic law. Under Article 253 of the Constitution, the Parliament has the authority to enact laws to implement international agreements and treaties. This provision enables the integration of international obligations into Indian law.

1)Monist and Dualist Aspects: India follows a dualist approach to international treaties. This means that international treaties do not automatically become part of domestic law upon ratification. Instead, specific domestic legislation is required to give effect to treaty provisions. For example, the Indian Constitution does not provide for the automatic application of international treaties; rather, it empowers Parliament to enact laws for their implementation.

2)Legislative Action: When India ratifies an international treaty, Parliament may pass specific legislation to incorporate the treaty’s provisions into domestic law. This legislative process is crucial for the effective implementation of international agreements. For instance, the Protection of Human Rights Act, of 1993, was enacted to give effect to India’s obligations under international human rights treaties such as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR).

Implementation of Treaties

Implementing international treaties often requires significant changes to existing laws or the creation of new legal frameworks. In India, this process involves several steps:

1)Legislative Changes: For many treaties, the Indian government must introduce and pass new laws or amend existing ones to align with treaty obligations. For instance, the enactment of the Arbitration and Conciliation Act, of 1996, was influenced by the need to conform with international arbitration standards set by treaties such as the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration.

2)Administrative Measures: Besides legislative changes, administrative measures may be necessary to ensure compliance with treaty obligations. This can include establishing regulatory bodies, formulating policies, and enforcing standards that reflect the commitments made under international agreements.

Judicial Interpretation and Application

Indian courts play a significant role in interpreting and applying international treaties. The judiciary often refers to international treaties when interpreting domestic laws, particularly when there is ambiguity or when domestic laws are silent on issues covered by international agreements.

1)Judicial Reference: Indian courts frequently reference international treaties to ensure that domestic laws are interpreted in a manner consistent with India’s international obligations. For example, in the landmark case of Vishaka v. State of Rajasthan (1997), the Supreme Court of India drew upon international conventions on gender equality to establish guidelines for preventing sexual harassment in the workplace.

2)Impact on Legal Precedents: Judicial interpretation of international treaties can shape legal precedents in India. By aligning domestic legal principles with international norms, Indian courts contribute to the development of a jurisprudence that reflects global standards, thereby influencing future legal decisions and policies.

 Challenges and Considerations

Despite the significant influence of international treaties on domestic law, several challenges persist:

1)Legislative Delay: The process of incorporating international treaties into domestic law can be slow, often leading to delays in implementing treaty obligations. This can create discrepancies between India’s international commitments and domestic legal standards.

2)Political and Social Resistance: Domestic resistance to certain international treaties or their provisions can impede their effective implementation. Political considerations and social attitudes may influence the extent to which international norms are embraced and applied.

Conclusion

International treaties exert a substantial influence on domestic laws in India through legislative action, judicial interpretation, and administrative measures. The dualist approach, coupled with the need for specific legislation to implement treaty obligations, shapes the interaction between international and domestic legal systems. While challenges such as legislative delays and resistance can affect the implementation of international standards, the role of treaties in guiding Indian legal and policy frameworks underscores India’s commitment to global cooperation and adherence to international norms.

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Saudi Arabia has executed people on drug related charges

Shivani Singh
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Saudi Arabia has executed people on drug related charges

Saudi Arabia has executed people on drug related charges 

Saudi Arabia has executed 28 individuals convicted of drug-related offenses, marking one of the largest groups of executions for such crimes in recent years. These executions were part of the kingdom’s ongoing crackdown on drug trafficking and usage, which it considers a serious threat to public safety and moral standards. The use of capital punishment for drug offenses is consistent with Saudi Arabia’s strict legal system and its broader approach to maintaining law and order. The mass execution has drawn both domestic and international attention, with concerns raised about human rights and the legal processes involved in such cases. 

The (NHRC) taken Suo Moto Cognizance on the death of 17 workers at an Atchuta Puram pharma unit blast  

Shivani Singh
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The (NHRC) taken Suo Moto Cognizance on the death of 17 workers at an Atchuta Puram pharma unit blast  

The (NHRC) taken Suo Moto Cognizance on the death of 17 workers at an Atchuta Puram pharma unit blast  

 

 The National Human Rights Commission (NHRC) of India took Suo motu cognizance of the tragic deaths of 17 workers in a blast at a pharma unit in Atchuta Puram, Andhra Pradesh. The NHRC’s intervention typically involves investigating the circumstances surrounding such incidents, ensuring accountability, and recommending measures to prevent similar occurrences in the future. In this case, the NHRC would likely focus on assessing compliance with safety regulations and the responsibilities of the company involved. on Friday, August 23, observed that the contents of the media reports indicated violations of the victims’ right to life due to the negligence of the authorities concerned. It issued notices to the Chief Secretary and the Director General of Police, Andhra Pradesh, It wanted the report to include the status of the FIR, updated information on the health and medical treatment of the injured, disbursement of compensation, and any other relief or rehabilitation provided to the injured as well as the families of the deceased workers.    

Share allocation under corporate law: a detailed analysis

Kalpana Bisen
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Share allocation under corporate law: a detailed analysis

Introduction

Share allocation is a fundamental aspect of corporate law, influencing the governance, control, and financial structure of a company. This research paper explores the legal framework governing share allocation in India, emphasizing the Companies Act, 2013, along with pertinent judicial interpretations and corporate governance principles.

Legal Framework Governing Share Allocation

The primary legal instrument governing share allocation in India is the Companies Act, 2013. The Act provides a comprehensive framework for the issuance, allotment, and transfer of shares. It also lays down the procedures for the rights and obligations of shareholders and the powers of the board of directors in the allocation of shares.

Section 23 of the Companies Act, 2013 allows a company to issue securities to its members or the public, to employees under an employee stock option scheme (ESOP), or to a select group of persons through private placement. This section provides the foundational principle for share allocation, which must comply with the company’s Articles of Association (AoA) and Memorandum of Association (MoA).

Section 39 of the Companies Act, 2013 mandates that a company cannot allot securities unless the minimum subscription stated in the prospectus is achieved. If the company fails to receive this minimum subscription within 30 days of the issue of the prospectus, the amount received must be refunded to the applicants. This ensures that the share allocation process is transparent and fair.

Types of Share Allocation

  1. Initial Public Offering (IPO):

An IPO is the process through which a private company offers shares to the public for the first time. It is governed by **Section 23** of the Companies Act, 2013 and the Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2018. Companies must adhere to strict disclosure norms and obtain approval from the Securities and Exchange Board of India (SEBI) before proceeding with an IPO.

 

  1. Private Placement:

Section 42 of the Companies Act, 2013 governs the issuance of shares on a private placement basis. Private placement involves the sale of securities to a select group of investors, usually institutional investors, rather than the public at large. This method is often used by companies looking to raise capital without diluting ownership too much.

  1. Preferential Allotment:

Under Section 62(1)(c), companies can issue shares on a preferential basis, meaning shares are allotted to specific individuals or entities, often at a price that may differ from the market price. This method is frequently used in mergers and acquisitions or to retain strategic partners.

  1. Rights Issue:

Section 62(1)(a) of the Companies Act, 2013 allows companies to offer additional shares to existing shareholders in proportion to their current holdings. This method protects the ownership percentage of existing shareholders while allowing them to invest further in the company.

  1. Employee Stock Option Plan (ESOP):

Section 62(1)(b) governs the issuance of shares under an ESOP. Companies use ESOPs to incentivize employees by granting them the option to buy shares at a future date, often at a price lower than the market value at the time of grant.

Regulatory and Compliance Aspects

The allocation of shares in India is not just governed by the Companies Act but also by SEBI regulations, especially when it involves publicly listed companies. SEBI’s regulations ensure that the process of share allocation is conducted transparently, protecting the interests of investors and maintaining market integrity.

For instance, SEBI mandates that any preferential allotment of shares by a listed company must be accompanied by a special resolution passed by the shareholders, and the price at which the shares are allotted must be determined by a registered valuer.

 Judicial Interpretations

The judiciary has played a crucial role in shaping the law on share allocation, particularly in addressing issues of corporate governance and minority shareholder protection. For example, in the landmark case of Shanti Prasad Jain v. Kalinga Tubes Ltd., the Supreme Court of India highlighted the importance of protecting minority shareholders from oppression and mismanagement in the context of share allocation.

Similarly, in Needle Industries (India) Ltd. v. Needle Industries Newey (India) Holding Ltd., the Supreme Court upheld the principle that any allotment of shares must be made bona fide and for the benefit of the company as a whole, rather than to further the interests of a particular group of shareholders.

Corporate Governance and Share Allocation

Corporate governance principles significantly influence the process of share allocation. Good corporate governance requires that the process be transparent, fair, and in the best interest of all shareholders. The role of independent directors and the audit committee is crucial in ensuring that share allocations are conducted ethically and in compliance with the law.

Challenges and Issues

Despite the comprehensive legal framework, several challenges remain in the domain of share allocation:

1.Insider Trading:

The allocation of shares, particularly in cases of private placement or preferential allotment, can sometimes lead to allegations of insider trading. SEBI has stringent regulations to curb such practices, but enforcement remains a challenge.

  1. Dilution of Minority Shareholding:

Preferential allotments and private placements can lead to the dilution of the shareholding of minority shareholders. The law requires that such allocations be made transparently and with the approval of shareholders, but minority shareholders often find themselves at a disadvantage.

  1. Valuation Issues:

Determining the correct price for shares during allocation, especially in preferential allotments or private placements, can be contentious. The role of registered valuers and the adherence to fair valuation practices is critical in addressing these issues.

Conclusion

The allocation of shares is a crucial aspect of corporate law, influencing the ownership, control, and financial structure of a company. The Companies Act, 2013, along with SEBI regulations, provides a robust framework for the issuance and allocation of shares, ensuring that the process is conducted transparently and in the best interest of all stakeholders.

However, challenges such as insider trading, dilution of minority shareholding, and valuation issues remain. Addressing these challenges requires a combination of stringent regulation, effective enforcement, and a commitment to good corporate governance practices. The judiciary also plays a pivotal role in safeguarding the rights of shareholders and ensuring that the process of share allocation is conducted in accordance with the principles of fairness and transparency.

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Impact of Recent Supreme Court Rulings on legal Precedents

Kalpana Bisen
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Impact of Recent Supreme Court Rulings on legal Precedents

Introduction

The role of the judiciary, particularly the Supreme Court, is paramount in interpreting laws, shaping jurisprudence, and setting legal precedents that guide the functioning of the legal system. In recent years, several rulings by the Supreme Court of India have significantly impacted existing legal precedents, influencing the country’s legal landscape. This paper examines the impact of these rulings on legal precedents, focusing on how they have redefined, reinforced, or overturned established legal doctrines.

The Doctrine of Constitutional Morality

One of the most significant recent developments in Indian jurisprudence is the invocation of the doctrine of “constitutional morality.” This concept, although present in earlier judgments, was brought to the forefront in cases such as Navtej Singh Johar v. Union of India (2018), which decriminalized homosexuality by reading down Section 377 of the Indian Penal Code. The court held that constitutional morality, as opposed to popular morality, should guide the interpretation of fundamental rights. This ruling not only overturned a colonial-era law but also set a precedent for future cases involving individual rights against majoritarian views.

The judgment in Indian Young Lawyers Association v. State of Kerala (2018), commonly known as the Sabarimala case, further emphasized constitutional morality. The court ruled that the practice of excluding women of menstruating age from entering the Sabarimala temple violated constitutional principles of equality and non-discrimination. These cases have established constitutional morality as a critical standard in adjudicating rights-related disputes, potentially influencing future rulings on religious freedoms, gender equality, and other fundamental rights.

 The Evolution of Privacy Jurisprudence

The right to privacy, a relatively recent addition to the corpus of fundamental rights in India, was crystallized in the landmark judgment of Justice K.S. Puttaswamy v. Union of India (2017). The Supreme Court unanimously declared that the right to privacy is a fundamental right under the Indian Constitution, derived from Articles 14, 19, and 21. This ruling overruled previous decisions, such as M.P. Sharma v. Satish Chandra (1954) and Kharak Singh v. State of Uttar Pradesh (1962), which had held that the Constitution did not expressly guarantee the right to privacy.

The Puttaswamy judgment has had a profound impact on subsequent rulings. For instance, in Joseph Shine v. Union of India (2018), the Supreme Court struck down the adultery law (Section 497 of the Indian Penal Code) as unconstitutional, citing the right to privacy and the right to individual autonomy. Similarly, in Sabarimala, the court’s reasoning was partly based on the privacy rights of women. The Puttaswamy judgment has thus set a precedent for interpreting privacy expansively, with implications for cases involving surveillance, data protection, and bodily autonomy.

The Doctrine of Manifest Arbitrariness

The Supreme Court’s application of the doctrine of “manifest arbitrariness” has led to significant developments in constitutional law. This doctrine was prominently applied in Shayara Bano v. Union of India (2017), where the practice of instant triple talaq (talaq-e-biddat) was declared unconstitutional. The court held that a law or practice could be struck down if it is arbitrary, irrational, or unreasonable, thereby expanding the scope of judicial review.

This doctrine was further reinforced in Joseph Shine, where the court struck down the adultery law as arbitrary and discriminatory. The ruling emphasized that laws rooted in gender stereotypes and moral policing are incompatible with the Constitution’s guarantee of equality and personal liberty. The application of manifest arbitrariness has empowered the judiciary to scrutinize and invalidate laws that do not meet the standards of fairness and reasonableness, thereby setting a precedent for future challenges to discriminatory or outdated legislation.

The Expansion of Due Process

The concept of “due process of law,” which had traditionally been interpreted narrowly in Indian jurisprudence, has been expanded by recent Supreme Court rulings. In the Maneka Gandhi v. Union of India (1978) case, the court had established that the procedure established by law must be just, fair, and reasonable. This principle has been further developed in recent cases, such as Shayara Bano and Puttaswamy.

In Shayara Bano, the court held that the practice of instant triple talaq violated due process as it was arbitrary and unjust. Similarly, in Puttaswamy, the court emphasized that any law infringing on the right to privacy must meet the standard of due process, requiring a legitimate state interest, necessity, and proportionality. These rulings have broadened the scope of due process, ensuring that laws and state actions are subject to rigorous judicial scrutiny to protect individual rights.

 Conclusion

The recent rulings of the Supreme Court have had a profound impact on legal precedents in India. The invocation of constitutional morality, the expansion of privacy rights, the application of the doctrine of manifest arbitrariness, and the broader interpretation of due process have all contributed to reshaping the legal landscape. These developments reflect the judiciary’s evolving approach to constitutional interpretation, emphasizing the protection of individual rights and the need for laws to align with contemporary values of justice, equality, and fairness. As these precedents continue to influence future cases, they will play a crucial role in shaping the direction of Indian jurisprudence.

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The Benefits of California’s Revised Bill That Regulate How Artificial Intelligence is Developed

Shivani Singh
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The Benefits of California’s Revised Bill That Regulate How Artificial Intelligence is Developed

The Benefits of California’s Revised Bill That Regulate How Artificial Intelligence is Developed 

 

The benefits of California’s revised bill that seeks to regulate how artificial intelligence is developed and deployed in the state likely outweigh the costs, California’s proposed bill on AI regulation, SB 1047, advanced by State Senator Scott Wiener, a Democrat, Developers of AI software operating in the state would need to outline methods for turning off the AI models if they go awry, effectively a kill switch.  The revised bill did away with a provision for a government AI oversight committee. Alphabet’s Google and Meta have expressed concerns in letters to Wiener, with Meta saying the bill threatens to make the state unfavourable to AI development and deployment. “In our assessment the new SB 1047 is substantially improved, to the point where we believe its benefits likely outweigh its costs. Our initial concerns about the bill potentially hindering innovation due to the rapidly evolving nature of the field have been greatly reduced in the amended version.” 

 

A K Raju vs State of Tamil Nadu 2002

Shreya Sharma
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0
A K Raju vs State of Tamil Nadu 2002

A K Raju vs State of Tamil Nadu 2002

Date of Decision: 01-12-2004

Citation : (2005) CriLJ 978 : (2005) 1 MLJ 448

Hon’ble Judges:  Justice P D Dinakaran, Justice F M Ibrahim Kalifulla

Bench: Division Bench

Advocate: V.S. Sethuraman, Spl. Govt. Pleader,  Goutham,

Facts :

The case of A.K. Raju vs. State of Tamil Nadu (2002) is a landmark decision by the Supreme Court of India that addresses significant issues regarding the enforcement of laws related to the preservation of forests and the rights of indigenous communities. The judgment highlights the balance between environmental conservation and the rights of local populations, particularly in the context of forest management.

Background of the Case

The case began with a conflict between the Tamil Nadu government and certain individuals, including A.K. Raju. They were accused of illegal encroachments and activities in forest lands. The state had passed a law to prevent unlawful encroachments and to protect forest areas, which are important for maintaining ecological balance and biodiversity. The law aimed to stop deforestation and safeguard forest resources from exploitation and misuse. A.K. Raju and others challenged the constitutionality of the law and the actions taken by the state government. They argued that the measures violated their rights. They claimed that the state’s actions were arbitrary and infringed upon their fundamental rights, particularly regarding land use and the rights of those who had historically lived in and around forest areas.

Key Issues in the Case

1. Legal Considerations for Forest Management: The main legal issue was whether the measures taken by the Tamil Nadu government to prevent illegal encroachments and preserve forests were carried out within the boundaries of legal authority and executed fairly.

2. Constitutional Rights: The case also brought into question the constitutional rights of individuals, particularly those residing in forest areas. The appellants argued that the state’s actions infringed upon their fundamental rights, including the right to livelihood and the right to property.

3. Balancing Environmental Protection and Individual Rights: A key aspect of the case was the conflict between environmental conservation and the rights of local populations. The court had to weigh the importance of protecting forest resources against ensuring that the rights of individuals were not unjustly violated.

 The Supreme Court’s Judgment

The Supreme Court, in its judgment, upheld the validity of the Tamil Nadu Forest Act and the measures taken by the state government. The Court emphasized the importance of preserving forests for maintaining ecological balance and preventing environmental degradation. It stated that forest conservation is a legitimate state objective and the state has the authority to take necessary steps to protect these resources.

The Court also acknowledged the need to balance environmental protection with the rights of individuals. It observed that while the rights of local populations must be respected, they do not extend to the extent of allowing illegal activities or encroachments in protected forest areas. The Court noted that the state’s actions were within the framework of the law and aimed at safeguarding public interest.

Impact of the Judgment

The case of A.K. Raju vs. State of Tamil Nadu is significant for several reasons:

1. Affirmation of Environmental Laws: The judgment reinforced the importance of enforcing laws designed to protect the environment. It affirmed that states have the authority to implement measures to preserve natural resources, even if it means restricting certain activities.

2. Balancing Rights and Responsibilities: The Court’s decision highlighted the need for a balanced approach, recognizing both the need for environmental conservation and the rights of individuals. It set a precedent for how courts should handle conflicts between environmental laws and individual rights.

3. Legal Precedent: The ruling has become an important precedent in Indian jurisprudence concerning environmental law. It provides a framework for understanding how legal provisions aimed at protecting natural resources can be applied in practice, ensuring that they are both effective and just.

In summary, the A.K. Raju vs. State of Tamil Nadu (2002) case underscores the judiciary’s role in upholding environmental laws while also considering the rights of affected individuals. The Supreme Court’s judgment reaffirmed the authority of state governments to enact and enforce regulations necessary for forest conservation, while also stressing the importance of ensuring that such regulations are implemented in a fair and equitable manner..

Surrogacy regulation bills

Shreya Sharma
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0
Surrogacy regulation bills

The Surrogacy (Regulation) Act, 2021 is a significant legislative measure by the Indian government aimed at regulating the practice of surrogacy. It seeks to ensure ethical standards and protect the rights of all parties involved. Enacted on January 25, 2022, this Act replaces previous legislation and addresses various issues related to surrogacy. It particularly focuses on preventing exploitation and establishing a regulated framework for such arrangements.

Objectives and Scope

The main goals of the Surrogacy (Regulation) Act, 2021, are to regulate altruistic surrogacy and prohibit commercial surrogacy. The Act’s focus on altruistic surrogacy is intended to protect surrogate mothers from being exploited for financial gain. In altruistic surrogacy, a surrogate is not compensated beyond her medical expenses and insurance coverage, thus preventing potential abuses and financial coercion.n.

Eligibility Criteria

According to the Act, there are several criteria that individuals must meet in order to participate in surrogacy arrangements. Only Indian citizens or Overseas Citizens of India (OCI) who have been married for at least five years are eligible to pursue surrogacy. The intended parents must also be certified as infertile by a medical board, ensuring that surrogacy is pursued as a last resort after exhausting other methods of conception.

As for surrogates, the Act mandates that they be between 25 and 35 years old and have at least one child of their own. This requirement is intended to ensure that the surrogate is physically and emotionally prepared for the surrogacy process. Additionally, surrogates must undergo comprehensive medical and psychological assessments before agreeing to participate.

Regulation of Surrogacy Clinics

Surrogacy clinics are required to be registered with the appropriate authorities and adhere to strict guidelines to ensure ethical practices and the welfare of surrogates. They must maintain detailed records of all surrogacy arrangements and ensure that surrogates receive proper medical care and support throughout the process. The National Surrogacy and ART (Assisted Reproductive Technology) and Surrogacy Regulatory Board oversees and regulates surrogacy practices, ensures compliance with the legal framework, and addresses grievances. The board also maintains standards and protects the rights of all stakeholders involved in surrogacy arrangements.

Legal Parentage and Rights

One of the significant aspects of the Act is its provision for determining the legal parentage of children born through surrogacy. The intended parents are recognized as the legal parents from the moment of birth, provided that all legal requirements are met. This provision ensures that the child has a clear legal status and that parental rights are well-defined, preventing potential disputes regarding custody or parentage.

Penalties and Enforcement

In order to enforce the Act and prevent violations, strict penalties are prescribed by the legislation. Individuals or entities involved in commercial surrogacy, unethical practices, or violations of the Act’s provisions may face imprisonment and fines. These penalties serve as a deterrent against exploitation and ensure that surrogacy practices are conducted in a lawful and ethical manner.

Conclusion

The Surrogacy (Regulation) Act, of 2021, is a significant milestone in the regulation of surrogacy in India. The Act focuses on altruistic surrogacy, establishes strict eligibility criteria, regulates surrogacy clinics, and sets up a regulatory board. Its primary goal is to ensure that surrogacy is carried out with respect for all parties involved. The Act aims to protect the rights and welfare of surrogate mothers, provide legal clarity for intended parents, and maintain high ethical standards in reproductive practices. This comprehensive framework reflects India’s commitment to addressing the complexities of surrogacy while upholding human dignity and ethical norms.

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Right to Property as a Constitutional Fundamental Right

Sommya Kashyap
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Right to Property as a Constitutional Fundamental Right
Introduction

The right to property has been a subject of considerable debate and evolution in India’s constitutional history. Initially enshrined as a fundamental right under the Indian Constitution, it later underwent significant changes that altered its status and implications. The journey of the right to property from being a guaranteed fundamental right to its reclassification as a legal right reflects the dynamic nature of constitutional law in India, influenced by the socio-economic policies of the state and judicial interpretations.

Article 19(1)(f) and Article 31: The Right to Property

Originally, the Right to Property was guaranteed under Article 19(1)(f) and Article 31 of the Indian Constitution. Article 19(1)(f) provided citizens with the right to acquire, hold, and dispose of property, while Article 31 protected individuals from being deprived of their property except by authority of law and with compensation. Together, these provisions offered strong protection against arbitrary state action regarding private property.

Article 19(1)(f): This article was part of the fundamental rights that allowed citizens to freely acquire, hold, and dispose of property. It was intended to safeguard private property rights and ensure that the government could not arbitrarily interfere with an individual’s ownership of property.

Article 31: This article provided that no person could be deprived of their property except by the authority of law. It also included provisions for compensation in cases where the state exercised its power of eminent domain to acquire private property for public purposes. The article aimed to balance the state’s need for land with the protection of private property rights.

Constitutional Validity and Amendments

The Right to Property faced challenges as India embarked on a path of economic and social reforms, particularly land redistribution and agrarian reforms. The state’s efforts to implement these reforms often came into conflict with the property rights enshrined in the Constitution. This led to a series of constitutional amendments aimed at curbing the protection offered by the Right to Property to facilitate the redistribution of land and resources.

First and Fourth Amendments: The First Amendment Act of 1951 and the Fourth Amendment Act of 1955 were early attempts to restrict the scope of the Right to Property. These amendments sought to place agrarian reform laws in the Ninth Schedule of the Constitution, thereby shielding them from judicial review.

Twenty-Fifth Amendment: The Twenty-Fifth Amendment Act of 1971 further curtailed the Right to Property by introducing the concept of “amount” instead of “compensation” for property acquired by the state. This allowed the state to determine the amount to be paid, which need not necessarily reflect the market value of the property.

Forty-Fourth Amendment: The most significant change came with the Forty-Fourth Amendment Act of 1978, which removed the Right to Property from the list of Fundamental Rights. Article 19(1)(f) and Article 31 were repealed, and a new provision, Article 300A, was introduced, making the Right to Property a constitutional legal right. Under Article 300A, no person could be deprived of their property except by the authority of law, but the protection was no longer as robust as it had been under the Fundamental Rights.

Case Law

Several landmark cases have shaped the jurisprudence around the Right to Property in India:

1. Kameshwar Singh vs State of Bihar (1952): One of the earliest cases, it challenged the constitutional validity of the Bihar Land Reforms Act, arguing that it violated the Right to Property. The Supreme Court upheld the law, marking the beginning of a trend where the judiciary balanced property rights with the need for social justice.

2. R.C. Cooper vs Union of India (1970)

  • Facts: Also known as the Bank Nationalization Case, this case arose when the government of India decided to nationalize 14 major banks, which R.C. Cooper challenged on the grounds that it violated his Right to Property.
  • Judgment: The Supreme Court struck down the nationalization ordinance as unconstitutional, stating that the government’s actions were arbitrary and that the compensation offered did not meet the “just equivalent” standard required by Article 31(2).

3. Jilubhai Nanbhai Khachar vs State of Gujarat (1995)

  • Facts: This case challenged the Gujarat government’s decision to reclassify land as government property without adequate compensation.
  • Judgment: The Supreme Court upheld the state’s action, ruling that after the Forty-Fourth Amendment, the Right to Property is no longer a Fundamental Right but a constitutional right under Article 300A. The Court emphasized that deprivation of property must be lawful, but compensation is not necessarily required.

Conclusion

The evolution of the Right to Property in India reflects the nation’s shifting priorities, from individual property rights to broader social and economic reforms aimed at achieving distributive justice. While the Right to Property is no longer a Fundamental Right, it remains a significant legal right under Article 300A, ensuring that individuals cannot be arbitrarily deprived of their property without due process.

This transformation underscores the balance the Indian Constitution seeks to strike between protecting individual rights and promoting the greater public good, adapting to the changing needs of society while maintaining the core principles of justice and fairness.

Also Read: 
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