Handcrafted Book Summary of Ten Judgements That Changed India


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                  Ten Judgements That Changed India

   Zia Mody

Penguin India

256 pages; Average reading time 3 hours 37 min

This bookbhook book summary will take not more than 13 minutes

 

This bookbhook summary has been handcrafted by Surbhi Kasid and the editors at bookbhook.com.

This handcrafted book summary will help you learn

  • The judicial history behind the recent Supreme Court judgement on triple talaq
  • How the Court interprets the fundamental rights of the citizens of India?
  • How Vishaka guidelines led to safer working conditions for women?

We the people of India

The people of India gave themselves The Constitution of India on 26th January 1950 with these words ‘We, the people of India’. The Constitution is the bedrock of the world’s largest democracy and this holy grail of democracy is interpreted from time to time. The interpretation of the Constitution goes through various levels till it reaches the ultimate interpreter- the Supreme Court of India.

As the name suggests, the book 10 Judgements That Changed India is a concise account of the way the Indian judiciary evolved over the course of time. It is important for us to understand how the various liberties and the safe recourse that we enjoy came to exist. The Constitution forms the back bone of Indian democracy and the apex judiciary is the cornerstone of the unflinching faith that the Indian citizen has in getting his or her voice heard. Since independence, the Constitution has been interpreted on numerous occasions by the Hon’ble Supreme Court of India. The 10 judgements discussed in this book are regarded as the turning points in the Indian legal system, and are somewhere or the other, linked with the Constitution.

In this book summary of 10 Judgements That Changed India, we will cover three out the ten landmark cases. For a detailed perspective of these four judgements and to read the other six judgements, please buy the book.

 Mohammad Ahmed Khan v. Shah Bano Begum

‘The law’ & then personal laws

India is a democracy and hence the right of equality is extended to every citizen. However, where matters such as marriages, divorces, and property settlements are concerned, there are different laws for different religions. These laws are also referred to as personal laws. Even before this case, the Supreme Court had passed several judgements regarding providing maintenance to a divorced Muslim woman by her husband but this case flared up the communal atmosphere in the country.

A divorce

In 1978, Mohammed Ahmed Khan divorced his wife of over forty years, Shah Bano, by pronouncing ‘triple talaq’- a Muslim religious custom that gave Mohammed Khan the right to do so, as long as the husband paid the pre-agreed amount mahr. The mahr amount was Rs 3000, something that would not help Shah Bano live the rest of her life without any financial support.

Shah Bano filed a petition under Section 125 of the CrPC (Code of Criminal Procedure), claiming maintenance from her husband as the mahr amount was grossly inadequate to help her lead the rest of her life.. The Judicial Magistrate at Indore, Madhya Pradesh, ordered her husband to pay a meagre sum of Rs 25 every month. Shah Bano then moved to the Madhya Pradesh High Court, which revised the maintenance amount to Rs 179.20 every month. In response to this, Mohammed Ahmad Khan challenged the Madhya Pradesh High Court decision at the apex court- the Supreme Court of India.

The problem

Mohammed Khan’s claim was that as per Section 127 of CrPC, since he had already paid the amount of mahr, he was not entitled to pay any further maintenance under Section 125 of CrPC. While Section 125 required a divorced woman (as long as she did not remarry) to be paid a monthly allowance of up to Rs 500, Section 127 of CrPC states that if the woman was paid any money under personal religious laws, then she could not claim any allowance under Section 125.

Section 127 aims to ensure that dual monetary allowance probability under both Section 125 (all citizens) and Section 127 (religious or personal laws) is reduced to zero. Mohammed Arif Khan claimed that since he had paid Shah Bano the mahr of Rs 3000, Shah Bano could not claim further support allowance under Section 125 of CrPC.

Is iddat enough for the dependent’s future?

The two judge bench hearing the Mohammed Khan’s petition decided to form a five judge Constitution Bench as the judges believed that the previous judgements in similar cases were not robust. Out of these five judges on the Constitution bench, four were Hindu and the fifth judge refused to be categorised under any religious label.

The question faced by the Supreme Court was a difficult and emotional one. Does providing financial support during iddat (the period set by Muslim personal law till which time a husband has to provide for his divorced wife), however meagre it may be, absolve him of his duty to provide for his divorced financially dependent wife’s future? In April 1985, the Supreme Court delivered its judgement on the Mohammed Ahmed Khan v. Shah Bano case.

The verdict

The verdict of the Constitution Bench said that Section 125 of CrPC aimed to prevent dependents from financial penury and the struggle of living without financial support, irrespective of religious identity of the dependents. The judgement then distinguished between personal laws and Section 125 of the CrPC.

The Court said that while personal law declared that mahr should be paid, but the personal law did not take into account how the divorced dependent wife would lead her life beyond the iddat period, and hence the need for the divorced to get financial support under Section 125, irrespective of religious identity. The Court also said that in case of any conflict between Section 125 of CrPC and Muslim personal law, CrPC would take precedence over personal law.

The court asserted that mahr was not a payment similar to divorce settlement. Just because mahr was paid at the time of death or divorce, it did not classify as a divorce payment. Thus, the Constitution Bench granted the maintenance amount as decided by the Madhya Pradesh High Court and additional legal costs to Shah Bano Begum.

Soon after the judgement, the cauldron of communal affiliation and dissatisfaction started getting stirred. The judgement, delivered to improve the lives of dependent women after their divorce, became an issue of interfering with religious customs and practices. While there were vociferous protests from Muslim community, there were many liberal Muslims and Hindus who supported the judgement.That the Constitution Bench interpreting Muslim personal law did not have a single Muslim member also became a bone of contention. There was a scathing attack on Shah Bano and she dissociated herself from the case.

Facing the political heat

More than the judgment, it was the way that the judgement was delivered became the point of uproar. Did the Constitution Bench need to interpret the Muslim personal law? Could it not have taken the decision just on the principles of The Constitution and the CrPC? Around the same time that this judgement was passed, the ruling Congress party, led by the then Prime Minister Rajiv Gandhi suffered electoral defeat in state legislative assembly elections. Fearing that supporting the judgement in the Mohammed Ahmed Khan v. Shah Bano Begum would lead to loss of the Muslim vote bank, the Rajiv Gandhi government enacted the Muslim Women (Protection of Rights in Divorce) Act, 1986- also called the MWA.

The MWA, in a sense, reversed the judgement. According to the MWA, mahr and maintenance for a Muslim divorced woman was to be paid only during the period of iddat, and not beyond. The MWA did not explain what financial support the dependent divorced woman would get after the iddat period was over. It also closed all doors for Muslim women to seek financial support under Section 125 of CrPC after divorce.

Polarisation of the social fabric

This enactment of the MWA, as a response to the Supreme Court Constitution Bench judgement in the Shah Bano case, changed the history of India. This was the beginning of the rise of religious fundamentalism in post-independence India.

The MWA was challenged in 1994 and a petition was filed to implement the Uniform Civil Code (UCC) that would overrule all religious and personal laws. This petition was rejected by the court saying implementing UCC was a matter of the legislature, not the judiciary. The debate over MWA’s provision of providing financial support to a Muslim divorced only during the period of iddat was interpreted by courts as the amount being given only during iddat, but the amount being sufficient enough for the dependent to be able to lead the rest of her life or in some cases, reach out to her relatives or the Muslim Wakf board for financial support.

In 2001, the  Danial Latifi v. Union of India case challenged the constitutional validity of the MWA as the MWA  did not stand up to Articles 14 & 15 of The Constitution ( which guarantee right to equality) and Article 21 (which guarantees right to life) . The Supreme Court did not accept this argument but highlighted that the under the MWA, the husband would not only provide financial support during iddat, but also ensure that this payment is sufficient for the dependent divorced woman to lead the rest of her life.

In yet another decision later, the Supreme Court ruled that a divorced Muslim woman can file a petition under Section 125 of the CrPC. These two rulings, after the MWA came into force, ensures that the divorced Muslim woman is free to either seek financial support under Section 125 of the CrPC or claim a reasonable lump sum alimony (an amount that is fair to help her lead the rest of her life) under MWA act.

Bookbhook.com editor’s note: On 22 August 2017, the Supreme Court of India declared the practice of triple talaq as unconstitutional by a 3:2 majority. The bench comprised of five judges who belong to different religions, including Islam.

Olga Tellis v. Bombay Municipal Corporation (1985)

Please move, we want to help you

In July 1981, just when the monsoon clouds started hovering over the skyline of Bombay (now Mumbai), the then Chief Minister of Maharashtra A.R. Antulay announced that all slum dwellers and squatters in the city would be evicted out of Mumbai if they cannot prove their identity (with photo identity cards).

 Bombay then, even more so Mumbai now, is a city creaking at the limits owing to massive population influx with most migrants being part of the informal economy as daily wage earners living in slums or the footpaths. The Chief Minister believed that his decision would help the squatters and slum dwellers avoid the troubles associated with Mumbai’s rainy season. The irony was that the slum dwellers were being evicted from their place of stay (and work, as most of them stay close to their working area) to help them avoid the inconvenience of rains. The Municipal Commissioner of Bombay went about executing the order of the Chief Minister under Sections 312-314 of the Mumbai Municipal Corporation Act (BMC Act) and started evicting the squatters and encroachers.

It’s about right to life

In response to this forceful eviction by the BMC, two groups of slum dwellers filed writ petitions in Supreme Court against these forceful evictions. These slum dwellers argued that it was against their right to life and liberty. As most of the slum or pavement dwellers moved from other villages of the country for finding work and basic sustenance, it was essential that they lived close to their work area. This was about right to life and personal liberty under Article 21 of The Constitution, and not just about the need to live in the streets or slums.

More so, the slum dwellers, did not live in slums and on the streets out of choice but due to their limited economic means in a city like Mumbai. Hence, the BMC should provide them alternative accommodation. The BMC countered that these encroachments led to a rise in crime, were a hazard to public safety, and increased pollution and hence, should be demolished and the residents evicted. For the Supreme Court, this was not just about the eviction of encroachers but about guaranteeing the fundamental right to life. But can one have the right to life if he or she does not have the right to a livelihood?

A fundamental right

Human civilization in most parts of the world recognises first generation civil and political rights as core rights enforceable by a court of law. On the other hand, second generation rights like socio-economic rights (e.g. right to health) are more as guidance for the state, known as directive principles in India.

Olga Tellis V. Bombay Municipal Corporation (1985) is a landmark case that brought socio-economic rights within the ambit of fundamental rights. In this case, the Court had to decide between the right to life of the slum dwellers and the overall right to health and safety of the community. In its judgement on this case, the Supreme Court not just gave a judgement but also made observations that influence the debate on fundamental rights.  The Supreme Court made some stark observations regarding the life the people on streets lived and pronounced that the right to life includes the right to livelihood. How will a person live if he cannot sustain himself via earning a living?

Right to shelter

The Court, however, did not say that the procedure of BMC for evicting the encroachments was unjust, but that this eviction exercise had to be carried out based on constitutional principles. The Court thus ruled in favour of BMC only after the assurance that basic accommodation and rehabilitation schemes shall be provided so that the weak and the ignored sections of the society have equal opportunities. The Court also ruled that at least one month’s notice should be given to slum dwellers before evictions. The ruling, in this case, became one of the first instances where the Supreme Court of India while looking at a civic body procedure of eviction of encroachers, invoked it as a discussion on fundamental rights and broader policy issues of governance. The Olga Tellis case became the cornerstone for interpreting right to shelter as a constitutional obligation of the government, under Articles 19 & 21 of The Constitution.

Dilution of the spirit

In subsequent cases through the 1990s decade, the Supreme Court also laid down the need to ensure the minimum quality standard of the alternative accommodation for the impacted people, linking it to a certain level of quality of life. Olga Tellis case linked right to shelter to the right to livelihood, given that the under privileged need to stay close to their place of work.  However, by the mid-1990s, the Supreme Court shifted its stance on the displacement of the disadvantaged people, especially in the Narmada Bachao Andolan (NBA) Sardar Sarovar Dam stand-off.

The NBA filed a petition with the Supreme Court challenging that the dam would lead to forced displacement of weaker sections of the society like the tribals, as well as lead to environmental degradation of the area. After extending a stay on the construction of the dam, the Supreme Court allowed raising the height of the dam in 2000, thereby ignoring its earlier precedent set in the Olga Tellis case.

 In recent times, the Supreme Court has further tilted away from the Olga Tellis precedence by comparing alternative accommodation for pavement dwellers with ‘rewarding pickpockets’ (Almitra Patel V. Union of India)

Providing adequate shelter to its citizens is now seen as a right across the globe. While Olga Tellis precedence is being weakened by the judgments of the Supreme Court itself, the fact that the Court took this as a case of not just civil eviction procedure, but as the bigger cause of right to livelihood, and thereby right to shelter, being a part of a citizen’s right to life, it is a strong example of the Court stepping in to protect the human rights of the underprivileged.

bookbhook.com editor note: On August 25, 2017, the Supreme Court passed landmark judgement that has far reaching impact on the fundamental rights of Indian citizens. The Court declared in its judgement that privacy is a fundamental right unless it concerns matters of national security and distribution of scarce resources

Vishaka v. the State of Rajasthan (1997)

Prosperity & women at the workplace

As the Indian economy unlocked itself in the early 1990s, it also opened up avenues for women to go out and seek employment. However, sadly, as the number of women in the workforce started to grow, the cases of sexual harassment against them also started to rise. Cases have been reported from private and public enterprises alike, be it police, defence, BPOs, or MNCs.

Bhanwari Devi versus society

Bhanwari Devi was a grassroots worker, locally known as saathin, in the state of Rajasthan. As part of an effort to remove the deplorable practice of child marriage, the Rajasthan government ran a focused campaign against child marriage in which the saathins like Bhanwari Devi played a major role at the village level.

In 1992, Bhanwari Devi made an effort to prevent the child marriage of a one-year-old girl but failed. However, in this effort to resist a deep rooted social malaise, the entire village turned against Bhanwari Devi. The village socially boycotted her family, and then in September 1992, Bhanwari Devi was sexually assaulted and raped by a group of five villagers. The local police were not much help, and the trial court in Rajasthan acquitted the five men. 

A group of five NGOs under the name of Vishaka then filed a Public Interest Litigation (PIL) with the Supreme Court of India, asking it to define how sexual harassment of women at work could be prevented via judicial process. While there are international treaties on safeguarding women, including the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) that India signed in in 1980, there was no judicial process in India regarding sexual harassment at work. So, the Supreme Court relied on CEDAW in interpreting Articles 14, 15, 19 and 21 of The Constitution as well as a decision by the High Court of Australia and its own earlier decisions to formulate a guidance on sexual harassment of women at work place.

Because under Article 141 of The Constitution all decisions of the Supreme Court are treated as law, the guidelines issued in the Vishaka case became a judicial mandate to be implemented at all workplaces till suitable laws were made.

The Vishaka guidelines consist of eight guidelines with the first one being ‘The employer and/or other responsible people in a workplace are duty bound to prevent or deter sexual harassment and set up processes to resolve, settle or prosecute in such cases.

Vishaka guidelines as the law

Today, these guidelines form the very basis of the human resource policy in every company as Article 141 says that decisions by the Supreme Court are the ‘law’. After Vishaka guidelines were formulated and implemented, many cases sprung up across different High Courts and sometimes even the Supreme Court.

In the Apparel Export Promotion Council v A.K. Chopra case in 1999, the Supreme Court used the Vishaka guidelines to deliver the judgement. In this case, the chairman of the Council was accused of sexually harassing his secretary. Basis her complaint, the chairman’s services were terminated. The Chairman then filed a petition in Delhi High Court, which then observed that since he had never made any physical contact with his secretary, he cannot be charged with sexual molestation. The Apparel Export Promotion Council then made an appeal to the Supreme Court, which reversed the High Court decision and duly recognised that under the Vishaka guidelines, any physical contact is not mandatory for sexual harassment. Anything that compromised the dignity of a woman at her workplace is an act of sexual harassment.

A double edged sword

The Vishaka guidelines are a comprehensive and inclusive set of laws that make workplace safe for women. It is not that this law does not have its negatives. In the case of Usha C.S v, Madras Refineries, the Madras High court heard the complaint of an employee of Madras Refineries alleging sexual misconduct by her manager. She said that she was not allowed a paid study leave, promotion, and salary because she rejected the sexual advances made towards her by the manager.

The Court, after careful examination of all the facts, came to the conclusion that the allegations made by the employee were not true. Further, as per the Vishaka guidelines, a complaint investigation committee was set up, and the female employee had constantly delayed appearance in front of the complaints committee. Did the Supreme Court take on the mantle of the legislature by issuing the Vishaka guidelines, thereby making them the law under Article 141 of The Constitution? The Court issued guidelines when both legislature and the executive did not take up the mantle of creating laws to make workplaces safe for women.

Justice Markandey Katju said that the Court could not keep addressing all social issues for which there are no laws framed by the legislature. Justice Ashok Kumar Ganguly, however, said that such judicial intervention is okay if there is a legislative void and if accomplished jurists share this belief of existing void.

bookbhook.com editor’s note: In 2013, The Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal Act, 2013) was enacted as law by the Parliament of India. This Act plugged the legislature & executive void which was being done by the Vishaka guidelines from 1997 till the time the new law came into force in 2013.

This book summary covered just three of the ten judgements that changed India. To read these three in more detail and to read the other judgements, please buy the book

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