The Important Cases in Indian Judiciary like Keshavnanda Bharti, Mathura Rape Case, Vishaka Guide Lines Relationship between Union Territory and Central govt PESA Act

1. Union territory and Tribal
Councils
Presented by
Rathod Shyam Sunder
Inbarasan K G
Eyogavee K

2. Union territory
• Article 1 of the Constitution says, Territory of India comprises
of 3 categories:
a. Territories of State- share distribution of power with centre
b. Union Territories- direct control and administration of C.Gt
c. Acquired Territories-

3. Creation of Union Territories
• During British rule certain areas were known as “Scheduled
Districts” and later they came to be known as “Chief
Commissioner Provinces”.
• After Independence they were placed in the category of part
‘C’ and part ‘D’.
• 7th CA and States Reorganisation Act(1956), these territories
were known as “Union Territories”
• Some of them later became as states.
• The Union Territories has been classified based on
considerations like political and administrative, Cultural
Distinctiveness, Strategic Importance.

4. Administrative of Union Territories
• Articles 239 to 241 is part VIII of the constitution deals with
the UT
• There is no Uniformity in Administrative System.
• Power of president-Appointment of Administrator, Lt.
Governor
• Parliament Power –on law or Court

5. Special Provisions for Delhi
• 69th Amendment 1991 gave special status to
Delhi by converting UT to NCT.
• It designated Administrator of Delhi as the
Lt.Governor.
• Power of Legislative Assembly
• Power of Lt. Governor

6. Advisory Committee of UT
• Government of India (Allocation of Business) Rules 1961-
MHA is nodal ministry for all matters of UT relating to
legislative, Finance and Budget, Services and Appointment of
Lt. Governors and Administrators.
• All the five UTs without a legislature have the forum of
HMAC –Consists of HM/MoSMHA, Administrator and MP
from the respective UT , members from Local Elected Bodies
discuss on issues related to Social and Economic
Development.

7. PESA ACT
Panchayat Extension to the
Scheduled Areas

8. • Background
• . The Scheduled Areas were exempted from
the application of the 73rd Amendment for
which the Parliament enacted a separate law,
Panchayat (Extension to the Scheduled Areas)
Act, 1996 (PESA).
• PESA provisions were incorporated through
amendments to the State Panchayat laws and
amendments to the subject laws.

9. • At present, nine state have Fifth Scheduled
Areas. These are: Andhra Pradesh,
Chhattisgarh, Gujarat, Maharashtra, Himachal
Pradesh, Jharkhand, Madhya Pradesh, Odisha
and Rajasthan. ( Telangana yet to submit the
list of Scheduled areas to the president.)

10. FAILURE
The reasons why PESA failed to deliver has been a result of lack
of clarity, legal infirmity, bureaucratic apathy, lack of political will,
resistance to change in power hierarchy and non realization of its
real long term worth. Issues of basic nature are identified along
with certain concrete propositions to address the gaps in the
governance frame along with the available instruments that can
be effectively used.

11. Limitations
• No appeal against gram sabha
• Doesnot provide time frame to make rules for
PESA act
• No responsibility given for panchayats to
collect or levy taxes.
• Not followed finance commission
recommendations
• Ministries overlapping with the
implementation of schemes.

12. Proposed Changes in PESA Act
• Minor minerals are changed into major and
minor minerals.
• Consent of gram sabha for all matters.

13. Future of PESA
• Tools for removing Maoists
• Social audit
• Proper channelization of mechanism for
development
• Empowering Tribals

14. Cases

15. Keshavnanda Bharti vs State of Kerala1973
• Keshavananda, Senior head of Hindu Mutt situated in
Edneer, Kerala.
• Swami Filed petition under Article 26
• Major Challenges to Amendments 24th,25th,29th.
• 24th Amendment to remove hindrances and
difficulties created by Golknath Case
• 25th Amendment Was Nationalisation of Banks and
Compensation.

16. What is 29th Amendment
• Kerala Govt Faced practical difficulties and to overcome them
amended Kerala Land Reforms Act, 1963 through
a. Kerala Land Reform (Amendment )Act, 1969
b. Kerala Land Reform (Amendment) Act, 1971
• Certain provision of the principal act, 1963 as amended were
challenged in HC of Kerala and SC. This proved as a threat to
implementation of land reforms in Kerala.
• 29th Amendment passed in the year 1972
• 29th Amendment include these amendment acts in 9th schedule
to the constitution.
• Protection under Article 31B.

17. Article 31B
• 9th Schedule and Article 31B complement each other.
• Article 31B came into effect by way of 1st Amendment
Act,1951.
• Article 31B talks about protection given to all acts and
regulations mentioned in 9th Schedule not any of the provision
thereof shall be declared void , or ever have to become void on
grounds that such act and regulation takes away or violate the
FR.
• All Acts in ninth schedule are provided immunity from judicial
review, overriding judgements, decree and order to the
contrary, if any.

18. Case Details
• The Case Heard for 68days i.e. Oct 31st,1972 to Mar 23,1973.
• 13 Judge Bench Headed by Chief justice Sikri.
• All this effort was to answer just one Question: Was the power
of Parliament to amend the constitution was unlimited?
• In other words, could parliament alter, amend, abrogate any
part of the constitution even to the extent of taking away all
FR’s.
• Earlier Article 368 didn’t contain any limitation of power to
parliament.

19. Cont
• The Case was fought by Eminent jurist N.A.Palkhivala.
• The 703 page judgement revealed a sharply divided court and,
by a wafer thin majority of 7:6.
• The SC declared that parliament can amend any part of the
constitution as long as it didn’t alter or amend “the basic
structure or essential features of the Constitution”.
• This basic structure has saved Indian Democracy and
Keshavananda Bharti has occupied hallowed place in
constitutional history.

20. Cont
• Acc to Chief Justice Sikri basic structure of the constitution
was:
a. Supremacy of Constitution
b. Secular Character of the Nation
c. Separation of Powers between Legislature, Executive,
Judiciary
• Various others eminent had different opinions about the Basic
Structure, SC said the Basic Structure evolves according to
the time.

21. THE SHAH BANO CASE

22. Shah Bano Case Background (1985) Nature of Problem/
Constitutional
Question
Shah Bano – Indore – 62 years old mother of 5
children filed a criminal suit against her husband
Mr. Khan (famous advocate of Indore) at the lower
court (Sec. 125 CrPC)
1932: Year of Marriage 1946: Mr. Khan had a
second wife - After several years of marriage with
Shah Bano, Mr. Khan decided to divorce her by
saying ‘talaq’.
Problem: 1978: He stopped giving her Rs. 200/-
per month for maintenance.
- Right to alimony - Demanded Rs. 500/- Her
husband gave an irrevocable talaq
Favorable to Shah Bano -Muslim women -
Economically backward – 5 children -No
means to support herself -Went to apex
court to seek justice despite the personal
laws not favoring on her side.
Mr. Khan’s argument: -Prerogative under
Muslim law: a. To marry second time b. No
court can interfere with personal laws
affecting religion “I have no obligation to
provide maintenance except Rs. 5400/-
(one time settlement for a period of 90
days after divorce)

23. Supreme Court (SC) Reactions Outcomes
Constitution is Supreme than
any personal law
Shah Bano won the right
to alimony from her
husband
- SC held that uniform civil
code is applied to Muslims
(there should not be any
conflict with UCC and any
personal laws).
Parliament: They reversed the SC
judgment on the grounds that: -it
conflicts with Islam law -different
religions have different civil code
especially Muslims.
Muslim Personal law: Attack on
their religion and belief
Negative Effect: Muslim Women
(Protection of Right on Divorce)
Act, 1986 = it denied Muslim
women right to alimony even for
destitute Muslim divorcees
Positive Changes:
1. All India Democratic
Women’s Association (AIDWA)
2. All India Muslim Personal
Law Board
= Right to alimony for a
Muslim divorcee is absolute
Only in 1985, that is seven
years after filing a case (1978)
she got justice for her plea.

24. Mathura rape Case
• Custodial rape
• Changes in Judgements
• Justice delayed is justice denied

25. Vishaka Case
• Supreme Court acknowledged that:
a. Sexual harassment is a human rights violation
b. Sexual harassment is a violation of the constitutionally guaranteed
fundamental rights:
 Articles 14 and 15: Right to equality
 Article 21: Right to life - to live with dignity
 Article 19(1)(g) - Right to practice any
profession/trade/occupation/business, i.e., a right to a safe environment
free from harassment
• There is a need for guidelines to fill the legislative vacuum

26. Cont
• Guidelines:
a. Employer’s Duty to prevent and prohibit sexual harassment,
also redress the grievances pertaining to sexual harassment.
b. Preventive Steps
c. Criminal Proceedings
d. Disciplinary Action
e. Complaint Mechanism
f. Worker’s Initiative
g. Third party harassment
h. central/state govt need to adopt suitable measures guidelines laid
down by private sector

27. NALSA case
• Third Gender
• Violation of law
• Transfer of gender is illegal