Book Review: 10 Judgments that changed India

By | April 24, 2020
10 Judgments that changed India

The book ’10 Judgments that changed India’ is published Penguin Classics in the year 2013. It is a narrative of the evolution of the Indian judiciary reestablishing its power to transform the story.

About the author

Authored by one of the best corporate lawyers in the country, Zia Mody is the daughter of the revered Soli S. Sorabjee. She is an alumnus of Cambridge University and Harvard Law School. Zia Mody is the founding partner of AZB & Partners, one of India’s leading law firms, the Z in AZB corresponds to her name. She was married to Jaydev Mody and has three daughters.

Foreword

The book starts with a charismatic foreword from Soli Sorabjee where he directs the attention of the readers to the gradual growth of importance of the Judicial system of the country over the years. He mentions the acumen of the author in including the inculcating overall sociological information along with the actual judgments in the book. According to him, the book will be useful for all the members of the society of not only the legal fraternity but also law-abiding citizens of the country.

Prologue

The exquisitely worded prologue mentions the importance of the constitution of India in the lives of the Indian people. Mody explains how the guarantee of rights in the constitution has given spirit to the people of the country. Furthermore, she confesses that it was an extremely difficult task to choose 10 landmark judgments among the pool of important judgments.

She admits to the fact that the majority of the judgments have been a result of the pre- and post Emergency period of Indira Gandhi Regime which has given a sense of democracy to the structure of Indian policy. Women dominate in four of the ten selected judgments but she admits that it’s a long road of development for the women. The importance of the judgments has escalated because they have been cited in international judgments especially in the judgments of South Asia.

1. Keshavananda Bharti v. State of Kerala (1973)

It was one of the judgments that expanded the scope of applicability of international constitutional law in India. The judgment expanded for 5 months, consisted of 4,20,000 words and is known as the longest appellate decision of the last century. After the establishment of the Constitution and the various land reform acts passed by the county, the Landholders has to face difficulty.

Modi starts discussing the evolution of the decision to amend the constitution through landmark cases of Sanskari Prasad, Sajjan Singh, and Golaknath. The debate over the matter ended with the Keshavananda Bharti case where the Courts have restored the power to amendments to the Constitution which violated the rights of the citizens. Apart from the philosophy regarding amending powers under Article 368 of the constitution, the basic structure doctrine is also discussed in detail.

She emphasizes how the basic structure doctrine was both criticized and applauded. Criticized because of the non-present of the word basic structure in the constitution and applauded because of the diplomatic approach towards a division of powers among the three members of the government.

Several eventualities in the future surrounding the judgment is discussed including the Minerva Mills and the inclusion of the ninth schedule. The narrative f the first landmark judgment ends with the statement of impossibility of overruling the judgment in the near future.

2. Maneka Gandhi v. Union of India (1978)

It starts with the socio-political situation of the country during and after the proclamation of emergency by the President in the year 1975. Consequently, the narrative shifts to Part III of the constitution which enshrines the fundamental rights.

Article 14, 19 and 21 known as the golden trio attract the most attention. Subsequently, Modi explains the legal nexus surrounding the interpretation of various fundamental rights by the Supreme Court of India which started with the case of Gopalan to Satwant Singh which culminated in the Maneka Gandhi’s case. She narrated how the SC’s interpretation of ‘Life’ under Article 21, in this case, serves as a precedent for several cases through successive years and how the increased scope of Article 14,19 and 21 reshaped India’s constitutional policy.

3. Mohammed Khan v. Shah Bano Begum (1985)

The author carefully evaluates the decision of the Supreme court in the particular case and the socio-religio-legal repercussions that followed. The section starts with the story of how Shah Bano ended up filing a writ petition for the rightful maintenance claim under Section 125 of the CrPC. The author explains the concepts of the different personal laws prevailing in the country for different religions and the demand for the Uniform Civil Code that emerged as a result of the case.

The section takes us through the concept of triple-talaq, iddat, mehr, enshrined in the Muslim Law.  The case was ruled in favor of Shah Bano but was criticized by the Muslim religions group because of the all-Hindu Corum, the non-secular approach of the court, and the unduly critical sight to view the Muslim Laws.

The author goes on to explain the political situation in the country with the emergence of the Rahul Gandhi Government and he framing of the Muslim Women(Protection of Rights in Divorce) Act, 1986 which deprived the Muslim women of filing applications under section 125 of CrPC, which followed violent protests.

Subsequently, Mody mentions the positive changes which occurred after the Danial Latifi judgment which ruled in favour of the Muslim women and granted them the opportunity of filling applications both under the MWA and Section 125 of the CrPC. The section ends with how the judgment was responsible for striking a feminism and secularism debate in the country and the subsequent want of a civil code for the country which would include all the religious groups.

4. Olga Tellis v. Bombay Municipal Corporation (1985)

The chapter starts with the author explaining the concepts of first-generation rights and second-generation rights. She narrates to us the consequent events that shaped the growth of the right to shelter within the ambit of the right to life. The genesis of the Olga Tellis case lies with the decision of the Bombay Government to devise a plan to lead to the mass eviction of the informal settlements and the pavements of the roads citing the reason of the inhuman conditions of existence.

The honourable court upheld the philosophy of democratic governance by not interfering in the matters of the government and ruling in favour of the Bombay Municipal corporation but through this judgment created a precedent for the establishment of human rights in the country. In the later part, she narrates the after-math of the Olga Tellis judgment throughout the Nawab Khan Gulam Khan case and the Shantistar builders case culminating in the Narmada  Bachao Andolan Judgment.

The philosophy of the Supreme Court has been upheld by the South African courts to rectify border defects in state housing policy she explained. Lastly, she mentions that the Olga Tellis judgment has not been formally over-ruled but its scope has dwindled from 1990 onwards.

5. Union Carbide Corporation v. Union of India (1989)

The introduction starts with establishing the Sevin and Temik in the Bhopal plant of UCC which on 1984 leaked tones of MIC (Methyl Isocyanate) which rapidly spread and caused mass scale casualties in Bhopal. The effects of the leak have caused widespread genetic diseases from that time onwards. The author explains how the Indian court received the jurisdiction of the case because of the large number of witnesses in India.

She narrates the fillip in the compensation amount from the District Court to the High court and furthers the Supreme Court. The judgment became a precedent for the cases like Oleum Gas Leak Case and the MC Mehta case where the honorable court held that there was no duty of anyone to proves any harm, the harmed should be compensated. She compares the Bhopal Gas tragedy to the BP tragedy in the Gulf of Mexico where there was speedy dispensing of compensation among the harmed and question the stealth of the Indian courts in this matter.

She enumerates several legislations originated after the case including the Environmental Protection act (1986), The National Environment Tribunal Act, 1955 and the like and throws light on the non-presence of environment clauses in the corporate and other laws of the fields closely related to Environment. She gives importance to the understanding of the nuclear situation of the country and being responsible for it.

6. Indra Sawhney v. Union of India (1992)

The case relates to the reservation system in our country with roots in the varna system of the Vedic period. The situation heightened in the time of the British due to the policy of divide and rule and the Morley-Minto reforms. Mody narrates to us the post-constitutional developments in the reservations of the caste system and goes on to cite the case of M.R Balaji where the extravagant quota initially prevailing was barred to 50%.

Mody goes on to explain to us the consequences of the Mandal Commission on the socio-political structure of the country. The violent repercussions that followed the proclamation of delay in initiating the effects of the Mandal Commission are explained.

Indra Sawhney initiated a PIL challenging the constitutional status of the reservations. She explains how the honorable court excluded the creamy layer from the ambit of the reservations. She mentions that in the new future the most difficult aspect for the government would to devise the process for phasing out the reservation system which initially crafted to protect the historically disadvantageous group.

7. Nilabeti Behera v. State of Orissa (1993)

The case regarding custodial death was explained by the author through a series of cases which included the Bhagalpur blinding case where acid was thrown into the eyes of the convicts in custody thus blinding them, Rudal Shah case wherein Shah was kept in custody even after 14 years of acquittal of murder and Bhim Singh v. State of J&K. in the case the 20-year-old son of the petitioner had died while in police custody.

The court took into account- public law, violation of fundamental rights, sovereign immunity and the other clauses to grant compensation to the petitioner. The author goes on to explain to us the genesis of the D. K Basu guidelines wherein the then Lawyer ( later appointed a judge ) and executive chairman of Legal aid services West Bengal had written a letter to the Chief Justice of India regarding the mounting custodial deaths, assault poisoning the system of administration.

The CJI took the letter as a writ petition and enlisted 11 guidelines known as the D.K Basu guidelines for custodial deaths while served as relied on cases like Shyama Devi v. National Capital Territory of Delhi.  The author goes on to explain the subsequent developments in the granting of compensation to the family of custodial death.

8. Supreme Court Advocate on Record Association v. Union of India (1993)

The chapter starts by explaining how the appointment of the judges is important. Then it takes us to a journey of how the system of appointment of the judges evolved from the first judge’s case to the second judge’s case and ultimately the third judge’s case. The first taking away the primacy that the judiciary enjoyed in the appointment of the judges and later in the second restoring it back and carefully arranging the balance of power in the choice of the appointment of judges.

The third judge’s case originated because of the questions raised on the nominees for the vacancies in the Supreme Court. However, the decisions in the judge’s case have been criticized as being ‘counter-majoritarian’ and anti-democratic. Talks had started off setting up Commissions solely focusing on the appointment of the judges.

9. Vishaka v. State of Rajasthan (1997)

This case as the author mentions is contextual to the protection of women from sexual offences at the workplace has relied much on the international treaties for arriving at an authoritative definition of the word ‘sexual harassment’. Vishaka is an NGO working that filed a PIL in the Supreme Court after the Bhanwari Devi incident seeking directions on how to prevent sexual harassment of women at the workplace.

In framing the Vishaka guidelines the court heavily relied upon CEDAW which was ratified by India in 1980 thus making it municipal law. I was heavily criticized on the grounds that it tried to encroach over the jurisdiction of the Legislative to which Justice Ashok Kumar Ganguli said that judicial intervention is permissible where there is void in the legislature.

The Vishaka guidelines were used in subsequent cases like Apparel Export Promotion Council v. A. K Chopra (Chopra), the D. S Grewal v. Vimmi Joshi and Usha Mehta v. Madras Refineries. The Vishaka guidelines were often referred to as a double-edged sword and seek to protect the interest of not only employees but also daily wagers, students and hospital patients.

10. Aruna Ramachandra Shanbaug v. Union of India (2011)

The narrative in the case starts with the moral and ethical debate over the right to die with dignity that was faced by the Supreme court in the case of Shanbaug. According to Section 309 of the Indian Penal code, suicide is considered to be an offence but major changes had been made within its interpretation by Maruti Dubai, P. Rathinam and the Gian Kaur cases.

In the last, the Supreme Court held that Right to Life in Article 21 included the right to die. A glaring case in the history of mankind, Aruna a nurse was sodomized by the medical staff of the hospital with a nozzle which stopped her brain arterial function and relegated her to the permanent vegetative state for 40 years. the case was brought to light by Pinki Virani, a journalist and the judgment of the case became the ground for allowing passive euthanasia by withdrawing life support from the patient thus allowing them to die in peace and dignity.

The book ends with an exhaustive list of endnotes which is a common aspect of a piece of work in the legal fraternity. The book actuates a wave of contemplative thoughts of the importance of the judiciary in framing the socio-economic-political conditions of the society.

It is a powerful tool for anyone who wants to grab a handful of knowledge about the situations churning revolutions in the legal industry.


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