10 Judgements that changed India

From the book by Zia Mody

Table of contents

Kesavananda Bharati v. State of Kerala

This case was exceptional for the SC ascribed to itself the function of preserving the integrity of the Indian Constitution. The basic structure doctrine was put forward in this case and has survived to date as one of the most enduring judicial pronouncements. It was the culmination of a long process of judgments wherein the judiciary time and again redefined what was amendable and what was not in the IC.

Shankari Prasad

SC held that IC amendments could not be reviewed by the courts. The prosecution had claimed invalidity of the new 9th schedule of the IC.

Golak Nath

SC ruled that the distinction between constituent powers and legislative powers as laid down in Shankari Prasad were unfounded. It held that for all subsequent rulings that FRs would be inviolable but did not apply them to the case in question.

In the meanwhile the government passed successive amendments which shielded IC amendments from judicial scrutiny, which were eventually challenged in the Kesavananda Bharati case. The KB case held the sovereign power of the Parliament to amend the constitution but at the same time maintained that such changes could not alter the basic structure of the IC itself. In deriving the basic structure of the IC most judges relied on the Preamble, FRs, and DPSPs. The KB case firmly established that the SC was the unmatched authority when it came to constitutional matters. According to Zia Mody, in the KB case the SC chose uncertain democracy over certain tyranny.

Minerva Mills

The SC for the first time struck down parts of the 42nd AA as they were against the basic structure of the IC. The Parliament, SC held, could not while exercising the limited power granted to it by the IC change that power to an unlimited one.IR Coelho: SC held that all laws shielded by the 9th schedule would be subject to the test of FRs, once A32 was triggered, which was part of the basic structure of IC. If they were found in contravention to the golden triangle of FRs (A14, A19, and A21) then they were liable to be struck down.

Maneka Gandhi v. Union of India

Gopalan case

The petitioner asked the SC to read the FRs in conjunction with each other and not as separate articles. SC turned down the request.

Satwant Singh case

The SC stuck to its stand that FRs could only be considered individually and not collectively as well as turning down the due process of law interpretation again.

ADM Jabalpur case

SC held that a detenu could not file a habeas corpus plea challenging the legality of his/her detention while emergency was in effect.

In Maneka Gandhi, while the case was a simple violation of the right to liberty under A21, the public outcry over the SC judgment in ADM Jabalpur made the SC more conscious and it took this opportunity to allow the American due process of law to enter Indian jurisprudence. In Satwant Singh the SC had stuck to its stand that the revocation of passport was void due to the absence of any law governing the same, but in Maneka Gandhi it questioned the very validity of the law itself. It said that post this case A21 would be read as "No person shall be deprived of his life or personal liberty except according to fair, just, and reasonable procedure established by valid law."This interpretation empowered the courts to expand the limited phraseology of the right to life under the constitution, to include a wide range of un-enumerated rights such as:

  • the right against handcuffing,
  • the right to treatment with dignity and humanity,
  • the right to a humane and healthy environment,
  • the right to live with human dignity, etc.

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Md. Ahmad Khan v. Shah Bano Begum

Facts of the case: Md. Ahmad Khan divorced Shah Bano Begum, his wife of 40 years by pronouncing triple talaaq. He said that according to muslim personal law he was obligated to pay back the mehr he had received at the time of the wedding, a paltry Rs. 3000, and thereby was rid of any further responsibility. The district judge and HC ruled in Shah Bano's favor awarding her a maintainence of Rs 180/month, which led Ahmad Khan to move the SC.The SC delivered a unanimous verdict that whether the spouses were Hindu, Muslim, Christian, Parsis, pagans or heathens was irrelevant, she would be entitled to maintainence from her husband under section 125 of the CrPC.

In this judgement the SC also expressed deep dissatisfaction with the inability of the government to implement the provisions of A44 in the form of a UCC.The adverse comments of the court were seen by muslim conservatives as an imposition of Hindu majoritarianism on the muslim masses which led to widespread protests against the judgement. The congress government at centre succumbed to the pressure and enacted the Muslim Women (Protection of Rights in Divorce) Act, 1986.

This act turned the Shah Bano judgement on its head as it was more in the vein of dissolution of rights in divorce rather than protection as it claimed in the title.

Danial Latifi case

Divorced muslim women could now seek a lump sum payment from their husbands during the iddat period which would serve them not only for the iddat but also for the future.

Iqbal Bano case

SC held that a petition under section 125 of the CrPC would not be rejected on the technicality that it was not filed under the MWA.

Thus, these two judgements have empowered muslim women to seek either a lump sum payment (Danial Latifi) from their husbands or recurring maintainence (Iqbal Bano) under the CrPC for their future maintainence.

Shamim Ara case

In a far reaching judgement the SC invalidated instant and arbitrary triple talaaq and stipulated that divorce must be pronounced as per Quranic injunction after holding arbitration between the concerned parties.

Olga Tellis v. Bombay Municipal Corporation

This was the case whereby SC bought second generation rights (socio-economic rights not explicitly mentioned in the IC) under the purview of Part III of the IC.

In the Olga Tellis case the SC ruled in favor of the BMC provision which was the basis for eviction of the slum dwellers but at the same time it asserted that the state must provide for alternative housing for the slum dwellers. The SC upheld the right to livelihood under A21 which was seen as a progressive step by most commentators. The court still maintained that squatting was illegal but was very humane in its treatment of slum dwellers. The developments in post Olga Tellis era have been as follows.

Ahmadabad Municipal Corporation case

SC upheld the ruling of Olga Tellis and instructed the AMC to formulate a scheme to provide accommodation to pavement dwellers.

Shantistar Builders case

SC went a step further and emphasised the significance of a minimum standard of accomodation.

Narmada Bachao Andolan case

The SC allowed the height of the dam to be raised thereby allowing for the largest court sanctioned eviction in the world.

Almitra Patel case

A transition of the SC's attitude was seen when in the case it held that providing accommodation to squatters and slum dwellers was akin to rewarding a pickpocket. It further held land grabbers should be dealt with an iron fist.

While Olga Tellis has not been overruled by the judiciary its scope has been widely weakened from the NBA case onwards.

Union Carbide Corporation v. Union of India

This case exposed the fact that legislation in India was and has always been reactive and not proactive. When the Bhopal tragedy occured in 1984, there were no laws specifically dealing with the same and even the provisions of the IPC regarding it only allowed for a maximum imprisonment of upto 2 years.The Bhopal incident was one of the major driving factors behind implementation of the EPA in 1986. It also brought out how ill equipped the Indian judicial system was to handle a disaster of such magnitude. A comparative example is the BP gulf oil spill wherein the company was fined $18 Bn in contrast to the UCC which paid a paltry $470 Mn for killing more than 20,000 people.The Civil Liability of Nuclear Damage Act of 2010 which limits the liability of nuclear plant operators to Rs. 1500 crore ($225 Mn) is a further proof of the inability of the Indian system to properly value the life of its citizens.

Indra Sawhney v. Union of India

Balaji case

In the 1962 case, the SC ruled that reservation cannot exceed 50%, as it would deprive meritorious candidates of a fair chance.

Indra Sawhney, a journalist filed a PIL before the SC after the government had decided to implement the Mandal Commission report for 27% reservation for the OBCs in all central government offices. In this case the SC opined that the Hindu caste system could be used to determine whether a class was backward or not. For other religious communities who did not believe in caste other socio-economic factors would be taken into account to determine whether they were backward or not.

The SC also provided for the exclusion of the creamy layer of OBCs from the reservation scheme in the Indra Sawhney case. The SC also struck down the commission's provision for further 10% reservation of economically backwards persons as well as the reservation in promotions for SC/STs.

Within three years of the Indra Sawhney judgement A16(4) was introduced in the IC as a political gimmick which allowed for the state to make reservations for backward classes in case of promotions as well.

Further in 2008 the SC upheld the reservation for OBCs under the Central Educational Institutions Act, 2006. Ashok Kumar Thakur case.

Other important SC cases

Supreme Court AoR Association v. Union of India

First Judges Case

The SC made a departure from two traditional rules of law

  • Rule of locus standi (PIL firmly established in the Indian jurisprudence)
  • Protection of privileged communication

The SC held that the CJI's opinion in appointing judges was not to receive primacy.

Second Judges Case

The SC referred this to a larger bench of 9 judges and overturned the ruling in the first judges case. It said that in an ideal scenario there would be no need for the primacy of the executive or the judiciary but in non-ideal cases when a conflict arose the judiciary would take precedence. It introduced the concept of a collegium of two senior most judges of the SC or the HC as the case may be.

On the issue of transfer of judges the opinion of the CJI would be decisive, who was to consult any judges whose opinion may be relevant before deciding on any such transfer.

Third Judges Case

The collegium would now consist of 4 of the senior most judges of the SC/HC.The usurpation of extraordinary power of appointment of fellow judges by the SC has been widely criticised from all quarters. Legal luminaries and constitutional experts are of the the opinion that the very anti-majoritarian nature of appointed judges makes their stay in such a powerful office questionable. A judicial appointments commission has been suggested as the ideal solution for this but the proposed NJAC was recently struck down by the SC in 2015.

Vishaka v. State of Rajasthan

Bhanwari Devi case

The trial court judge ruled that the 5 accused, being middle aged and of good social standing as well as high castes, were incapable of raping a lower caste woman.

Vishaka PIL

Filed by an NGO after the grossly misplaced judgement in the Bhanwari Devi case. The SC had to increasingly rely on multilateral treaties and the international bill of rights to come to its judgement owing to the legislative vacuum in the sphere. The SC set out 8 guidelines, based on the CEDAW, which would serve to protect women from sexual harassment in the workplace till the time an appropriate law was put in place to do the same.

Chopra case

in this case the SC held that physical contact was not a prerequisite in sexual harassment. It held that sexual harassment compromised the dignity of women and cannot be condoned.

Madras Refineries case

SC held that the Vishaka guidelines were a double-edged sword, it stated that the SC cannot assume that an allegation of harassment is correct unless it is first referred to a complaints committee.

University of Kerala case

Justice Markandey Katju opined that the judiciary cannot take on the role of interim parliament and pass guidelines/rules or directives in cases where the relevant provisions of law are missing. He questioned the constitutional validity of such directives of the courts. In 2013 the Protection of Women Against Sexual Harassment at Workplace Act was finally passed thereby allowing the Vishaka guidelines to become void.

Aruna Shanbaug v. Union of India

This is the euthanasia debate as it is going on in the Indian judicial circles. Recently a draft euthanasia bill has been proposed by the central government.

Maruti Dubal case

The Bombay HC struck down section 309 of the IPC (attempt to commit suicide) saying that it was ultra vires or beyond the powers of the IC. It said that the right to live under A21 includes the right not to live as well.

Chenna Jagadeeshwar case

In a case the very next year the AP HC upheld the validity of section 309 saying that it was an essential tool in the era of hunger strikes and self-immolation threats. It also stated that a prosecution under section 309 would not necessarily result in punishment rather it was there to impose an upper limit on the possible punishment.

Gian Kaur case

After decriminalizing suicide in Rathinam case the SC overturned its verdict in Gian Kaur and suicide as well as abetment of the same was a punishable offence again. SC held that while A21 did not contain the right to die it did encompass the right to die with dignity.

In the Aruna Shanbaug case the SC distinguished between two forms of euthanasia, active and passive. It made a rather tenuous distinction between the two while allowing passive euthanasia in certain cases and maintaining that active euthanasia would be tantamount to murder.

Under this judgement the SC setup a mechanism whereby a team of doctors would report on the person even while the final decision to allow passive euthanasia would still reside with the concerned HC. This mechanism was to operate untill Parliament deigned to pass a law concerning the same.

The law as it stands today allows for passive euthanasia in certain cases of physical suffering but under no circumstances is mental suffering a criteria for allowing passive euthanasia. In both Gian Kaur and Aruna Shanbaug cases the SC said that active euthanasia was not legal only so far as there was no law allowing it. With the introduction of the Draft Terminally Ill Patients Bill, the debate has been reopened in Parliament.

Justice Puttaswamy vs Union of India

Unanimous decision by 9 judge bench of SC held that right to privacy is an FR. Overruled past SC judgements such as Kharak Singh, ADM Jabalpur in the way.This judgement has implications for:

  • LGBTQ rights as decided in the Naz foundation case.
  • ADM Jabalpur case and the right to liberty under emergency has been overruled.
  • Euthanasia as decided under Aruna Shanbaug case.
  • Right to consume beef and alcohol as decided by the Mumbai and Patna HCs.
  • Statutory protection of data a la Germany.
  • Big data in private hands.
  • Aadhar applicability over a range of items.


  1. Kesavnanda Bharati. Basic structure doctrine.
  2. Menaka Gandhi. Due process of law jurisprudence.
  3. Olga Tellis & Almitra Patel. Rights of pavement dwellers first and squatters.
  4. Shah Bano and Shamim Ara. Rights of muslim women; abolition of triple Talaaq.
  5. Union Carbide. Indian torts law don't know what it's doing.
  6. Three Judges Cases. Collegium.
  7. Aruna Shanbaug. Passive euthanasia.
  8. Indira Sawhney. Reservation for OBCs.
  9. Vishaka and Kerala University. Vishaka guidelines on sexual harrasment; validity of judicial legislations.
  10. Justice Puttaswamy. Right to privacy.

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