From the day India achieved Independence, much has changed in terms of industry, commerce, ideals, morals, politics, outlooks and policies. Yet, what remains at the heart of Indian democracy even after 65 years of freedom is the endeavor to create a just society. It is at the heart of this endeavor that the existence of Indian judiciary finds its identity.
In the view of J. KG Balakrishnan, former Chief Justice of India, the success of Indian Judiciary on the constitutional front is unparalleled and its contribution in enlarging and enforcing human rights is widely accepted universally. Indian legal system has made progress by leaps and bounds in protecting fundamental rights of its citizens and fettering such constitutionally guaranteed freedoms with ‘reasonable restrictions’ and ‘according to rule of law’ through Sajjan Singh v. State of Rajasthan, Golak Nath v. State of Punjab and Keshvananda Bharati v. State of Kerala.
In the realm of protection of rights of women another landmark judgment of Vishakha v. State of Rajasthan changed the landscape of rights enjoyed by women vis-à-vis sexual harassment at workplace. This 1997 judgment of the Supreme Court arising from gang rape of Bhanwari Devi by a group of influential men lead to the Supreme Court laying down guidelines against sexual harassment against women at workplace. The incumbent state of civil and penal laws was recognized as inadequate and the Supreme Court set a precedent by drawing inspiration from an international instrument on human rights, the Convention on Elimination of all forms of Discrimination against Women.
The catena of landmarks does not only cover judgments on citizen’s rights but also includes many decisions having far reaching consequences on commerce and trade. One such decision is Vodafone International Holdings v. Union of India, a Supreme Court decision passed in January, 2012. The transfer of international subsidiaries of Hutchinson Telecommunications to Vodafone International in Cayman Islands opened a pandora’s box of issues regarding consequent tax liability, DTAA signed between India and Mauritius and larger issues like impact of India’s regressive stand on tax issues having possible impact on future trade revenues. This judgment and subsequent statements made by Hon’ble Finance Minister and Prime Minister at various times have left questions on GAAR unanswered and the judgment has been left on shaky grounds.
A recent decision of the constitutional bench of the Supreme Court in Bharat Aluminium v. Kaiser Aluminium has been lauded widely as bringing a welcome change in powers of Indian Courts to interfere in international arbitrations conducted outside India. This judgment overruled Bhatia International and Venture Global, two of the most criticized decisions of Indian judiciary in the field of arbitration and is an exemplary judgment where the Court recognizes the restrictions on its powers of judicial interference and upholds the doctrine of minimum intervention.
The Judiciary was formulated as a separate wing of the State under the Constitution of India to maintain healthy democratic traditions and facilitate the process of engineering social change. While the work of Indian judiciary has been appreciated in terms of determining Rule of Law and establishing equality, maintaining intelligible differentia , protecting the constitutional rights of its citizens and facilitating better legal environment for functioning of companies (Mafatlal v. Mafatlal), the same cannot be said about decisions in area of criminal justice system. It is said that law is a living organism and in this light, the judiciary must function in no spirit of formal and barren legalism. Law is for the protection of citizens and the recent Delhi gang rape case has left room for many questions to be answered in terms of effective implementation of laws formulated by legislature and at times the judiciary. I leave room for the fifth landmark judgment for while Indian judiciary has reached many milestones, the true achievement of the process of national building would be the day when its citizens especially its women feel safe and it is in this direction that judiciary should work in criminal justice system to deliver the ends of justice and good governance.
About the Author
Divya is a final year student of five year integrated law program at National Law University, Jodhpur.