Judiciary & The Indian Constitution – Know How Well Has Judiciary Served The Constitutional Ideals
Supreme Court

Judiciary & The Indian Constitution – Know How Well Has Judiciary Served The Constitutional Ideals

The constitution shares an inextricable relationship with the judiciary. While the other two parts of the government system, legislature & executive promulgate & executive the laws respectively, it is the judiciary which ensures that the laws – whose crux is none other than fundamental rights –are not being violated and are happening correctly and appropriately.  Judiciary is the broad avenue where anyone from everyone can come to seek help for the violation of their fundamental rights, It is the recourse which anyone & anyone can avail and get their basic dues restored or even compensated. Without a proper, free and fair judiciary, the democratic polity risks digressing into the orders of chaos and despotism.

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Well, the Indian judicial system is hierarchical, composite and well-integrated which the two divergent aspects of federalism & unitary characteristics, both of which are prevalent in the Indian politico-legal system. The apex court in the Indian Judicial System is the Supreme Court of India. It is effectively called the custodian of the Constitution. Justice should be easily accessible to the people, this forms the fundamental basis of an effective judiciary, which in turn forms the core purpose of a modern welfare state, which judiciously blends the two different of freedom (let live alone) and social responsibility (the temporary patronization of weaker sections until we achieve equality).  

Some special features of the Indian Judiciary:

1. Amongst the Prominent Judicial Systems in the World

The judicial system of India is amongst the most important judicial systems in the world. India’s judicial structure is utilized to understand and apply the laws of the land. Judiciary acts in the amicable settlement of disputes between the parties. The Doctrine of Separation of powers empowers the judiciary to interpret laws. Judiciary does not actually make laws but interprets and applies them in the country.

2. A Unified And Cohesive Judicial System

India has an integrated and unique judicial system which is broadly chartered in the Constitution. Supreme Court lies at the top of the integrated hierarchy. Below the Supreme Court, there are the High Courts at the provincial or state level. Below the High Court\, there is a very well-integrated hierarchy which is made up of district courts and lower courts. Also, there is a single structure that galvanises both the Central and the State laws. India is a federation of provinces & union territories with a strong centre. India’s legal system tries to address that equation amicably. As per the characteristics of an integrated judicial system, an individual can appeal to a higher court when he/she is not comfortable with the decision of the lower court.

3. An Autonomous Judiciary

The United States has the system of separation of powers to ensure the independence of the judiciary. But ours is a constitutional system that is set up on the basis of Parliamentary sovereignty. Herein, the separation of powers is ruled out. This is what happens in England. This is also happening partly in India as here the Parliamentary and constitutional sovereignty doctrines are blended together. The independence of the judiciary here implies the freedom of the judges to make judgements in an unbiased manner, free from any control and influence. An independent judiciary is needed to serve the following factors:

  • To check the functioning of the organs.
  • Interpreting the provisions of the constitution.
  • To act in a fair and unbiased manner.

4. Importance of Independence of the Judiciary

As per some observers, it is amazing that the independence of the judiciary is still not quite distinct even after so many years of its unfolding. Even our Constitution speaks about the independence of the judiciary without clearly spelling out what it means. The main talk is about the separation of powers that is establishing a system wherein judiciary is not under any undue influence of legislature (and extendedly the executive).  

5. The Emergence Of Judicial Activism

This term, Judicial Activism has its origin in the USA. This term had a positive connotation in the mid-20th century s courts were seen as upholder of the democratic rights of the people. The concept of judicial activism evolved and developed fast over the years and it came to attain a lot of legitimacy among the Indians with special reference to the unruly behaviour of the legislative and executive organs.

Various observers have praised lauded the efforts of judges in the protection of civil rights. Judicial activists came to be hailed as civil rights activists. However lately, some experts have derided judicial activism as an instance where the judge is misusing the authority as democracies meant to thrive on the separation of powers among the judiciary, executive and legislature. Lots of activism in the hands of the judiciary is at times seen as infringing on the rights of the other sections of the government.

In the gospel of promoting democratic ideals, there is a special requirement for people’s involvement in influencing government actions and programmes in the desire of good governance. The Indian Judiciary by pursuing judicial activism has facilitated the emergence of protection & promotion of social interests.

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चाइल्ड कस्टडी की मामलों में बच्चे की इच्छा भी बहुत महत्वपूर्ण: सर्वोच्च न्यायलय
Child Custody

चाइल्ड कस्टडी की मामलों में बच्चे की इच्छा भी बहुत महत्वपूर्ण: सर्वोच्च न्यायलय

Case: Smriti Madan Kansagra v Perry Kansagra (Civil Appeal No. 3559/2020)

Section 17(3) of the Guardian & Wards Act 1890

17(3), the preferences and inclinations of the child are of vital importance for determining the issue of custody of the minor child. Section 17(5) further provides that the court shall not appoint or declare any person to be a guardian against his will".

Smriti Madan Kansagra v Perry Kansagra (Civil Appeal No. 3559/2020) केस जहाँ Guardian & Wards Act 1890  की धारा 17(3) को समक्ष रखते हुए माननीय सर्वोच्च न्यायालय ने ये माना की चाइल्ड कस्टडी की मामले में नाबालिग की इच्छा भी सामान रूप से महत्वपूर्ण है तथा उसकी वरीयताओं पर भी विचार किया जाना चाहिए खास कर जब वो एक ऐसे उम्र में हो जहां उसमे अपनी पसंद और नापसंद की बारे में पर्याप्त जानकारी हो तथा वो भी अपनी वरीयता की अनुसार चुनाव करने योग्य हो.

सुप्रीम कोर्ट की तीन जज की बेंच जिसमे न्यायमूर्ति यु यु ललित, न्यायमूर्ति इंदु मल्होत्रा तथा न्यायमूर्ति हेमंत गुप्ता थे उन्होंने एक अत्यंत महत्वपूर्ण फैसले में एक नाबालिग बालक की कस्टडी उसके पिता को प्रदान की जो की नैरोबी, केन्या  में रहते है।

यह क़ानूनी लड़ाई लगभग दस साल चली जिसमे आदित्य (वह नाबालिग बालक जिसकी कस्टडी की लिए ये केस था) की कस्टडी की लिए उसके माता पिता ने परिवार कोर्ट से ले कर सुप्रीम कोर्ट तक ये कठिन कनूनी राह तय की तथा अंततः सुप्रीम कोर्ट ने आदित्य की सम्पूर्ण कस्टडी उसके पिता को प्रदत्त की।

यह जानना भी बेहद रोचक है की इस लम्बी और कठिन क़ानूनी लड़ाई की दौरान माननीय न्यायमूर्ति आदित्य से व्यक्तिगत रूप से अपने चैम्बर में कई बार मिले और यह जानने की कोशिश करी की आदित्य की व्यक्तिगत राय क्या है तथा उसकी वरीयता में उसके माता या पिता में उसकी अधिक नज़दीकी किसके साथ है। इस प्रकार की अनौपचारिक बातचीत से माननीय न्यायमूर्ति संतुष्ट हुए की बालक की समझ और वरीयता में वो अपने पिता से ज्यादा करीब था तथा उसकी इच्छा अपने पिता के साथ रहने की थी।

माननीय सुप्रीम कोर्ट ने अपने फैसले में स्पष्ट तौर Guardian & Wards Act 1890 अधिनियम की धारा १७(३)  का उल्लेख किया तथा स्पष्ट किया की इस केस में बालक की भविष्य का फैसला इस प्रकार से होना चाहिए जो उसके भले के लिए सर्वोपरि हो तथा उसके सभी हितों की सम्पूर्ण रक्षा भी हो।

माननीय सुप्रीम को ने परिवार कोर्ट, हाई कोर्ट के फैसले तथा कौंसिलर की रिपोर्ट को भी बहुत गौर से परखा और पाया की बालक आदित्य ने अपने पिता की अधिक झुकाव दिखाया था। अपने फैसले को अंतिम रूप देते हुए माननीय सर्वोच्च न्यायालय ने बालक की हितों को सर्वोपरि मानते हुए उसकी संगरक्षण की ज़िम्मेदारी उसके पिता को सौंप दी। सुप्रीम कोर्ट का पूरा फैसला यहाँ से पढ़े।:



Daughters have the birthright in the ancestral Property: Supreme Court

Daughters have the birthright in the ancestral Property: Supreme Court

With this Judgement now Daughter can have equal social status at par the son in the family and they are equal claimant in the paternal property.


Bench:             Hon’ble Justice Arun Mishra, S Abdul Nazeer & M R Shah

Key section:    Section 6 Hindu Succession Act 1956/ Hindu Succession (Amendment) Act, 2005,

Key Cases referred:    Prakash & Ors. v. Phulavati & Ors. (2016) 2 SCC 36 (2016), Lokmani &  Ors. v. Mahadevamma & Ors., [S.L.P.(C) No.6840 of 2016], Balchandra v. Smt. Poonam & Ors. [SLP [C] No.35994/2015], Sistia Sarada Devi v. Uppaluri Hari Narayana & Ors. [SLP [C] No.38542/2016]

Summery of the Judgement:     

Supreme Court held that daughters will have equal coparcenary rights in Hindu Undivided Family properties, irrespective of whether the father was alive or not on 9 September 2005, when an amendment came into force.

The bench decided that The provisions contained in substituted section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.”

Supreme Court also acknowledged the fact that due to the ambiguous legal interpretations & conflicting decision there are many cases pending before different high courts and lower courts & daughters should not be deprived of their rights of equality conferred upon them by section 6; directed that all such pending cases should be decided as far as possible within a time frame of six months.

Read the complete judgement from here:  https://main.sci.gov.in/supremecourt/2018/32601/32601_2018_33_1501_23387_Judgement_11-Aug-2020.pdf

Now  spouse (husband or wife) can claim maintenance from the date on which the application for maintenance was filed: Supreme Court
Family Dispute

Now spouse (husband or wife) can claim maintenance from the date on which the application for maintenance was filed: Supreme Court

Case No: CRIMINAL APPEAL NO. 730 of 2020 (arising out of SLP (Crl.) No.9503/2018)

Referred Acts in the Judgement:

  • The Code of Criminal Procedure (CrPC), 1973
  • The Protection of Women from Domestic Violence Act (DVA), 2005
  • Hindu Marriage Act (HMA), 1955
  • Special Marriage Act (SMA), 1954
  • Hindu Adoption and Maintenance Act (HAMA), 1956


Summary of the Case:

The Wife (Neha) filed an interim application u/s 125 CrPC claiming maintenance for herself and their son by her husband (Rajnesh). Family Court granted her a favourable Order of Rs.15,0000/- p.m. and Rs.5,000/-p.m. to their child to be paid by the Husband (Rajnesh). This Order was challenged by the Husband by way of a Criminal Writ Petition in Bombay High Court (Nagpur Bench) wherein the Court affirmed the Order of the Family Court and dismissed the Criminal Writ Petition. Husband lastly appealed to the Supreme Court. The Hon’ble Court awarded additional costs and relevant Order in maintenance of the Wife and their son by the Husband and also provided detailed guidelines on the fourth issue amongst the five (5) problems mentioned in the judgment that is issue of date from which maintenance to be awarded. 

In this Judgement Hon’ble Supreme Court observed and analysed all the precedents and regulatory frameworks used to decide a date from which maintenance can be awarded.


What should be the date from which Maintenance to be Awarded?

Hon’ble court observed that since there is no uniform regime and there are multiple practices adopted by the family courts across the country to decide the date from which the maintenance can be awarded. Hon’ble court also observed that there are three possibilities mostly adopted as the maintenance date:

a) Date on which the application for maintenance was filed;

b) Date of the order granting maintenance;

c) Date on which the summons was served upon the respondent.


Hon’ble court observed various precedent & judgements from different family courts and reached to the conclusion that family matters take a lot of time for their disposal and this delay is not in favour of justice and against the human rights & basic dignity of the individual.


Hon’ble court also provided the rationale for the above direction that it will enable the wife to survive  the financial tough time because if a dependent spouse loses its financial strength then it became very challenging to represent themselves before the court.  


To bring uniformity and consistency in the orders passed by all the Courts Hon’ble Supreme Court’s direction is very clear that the date on which  the maintenance application is filed will be considered as the date from which Maintenance can be awarded.  Hon’ble court also observed that the right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant.  


Read the judgement here:                   https://main.sci.gov.in/supremecourt/2018/37875/37875_2018_39_1501_24602_Judgement_04-Nov-2020.pdf

In a historic judgement, Supreme Court provides guidelines for deciding compensation and maintenance in matrimonial cases
Family Dispute

In a historic judgement, Supreme Court provides guidelines for deciding compensation and maintenance in matrimonial cases

Citation of the matter: CRIMINAL APPEA L NO. 730 of 2020 (arising out of SLP (Crl.) No.9503/2018).

Referred Sections in the Judgement:

 Section 125 and 128 in The Code of Criminal Procedure, 1973

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Key happenings in the matter Chronologically:

1. Family Court: (24.08.2015)

The Wife (Neha) first filed an interim application u/s 125 CrPC claiming maintenance for herself and their son by her husband (Rajnesh). The Family Court awarded her an Order for interim maintenance of Rs.15,000/- per month to Wife starting from 01.09.2013 and Rs.5,000/- per month to their son starting from 01.09.2013 to 31.08.2015 and Rs.10,000/- per month from 01.09.2015 till further orders.

2. Bombay High Court- Nagpur Bench (14.08.2018)

The above order was challenged by the husband as he was unemployed and could not pay the maintenance amount as directed by the Court. He challenged by way of a Criminal Writ Petition No.875/2015 before Bombay High Court, Nagpur Bench. High Court dismissed the Writ Petition dated 14.08.2018 and affirmed the Order of the Family Court.

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3. Supreme Court: (2020)

Husband appealed against the High Court’s judgement in the Hon’ble Supreme Court of India. The Supreme Court directed the Husband to pay the entire arrears of maintenance @Rs.15,000/- per month within a period of 12 weeks from the date of judgment and to comply with all the orders u/s 125 of CrPC. In addition to this, Supreme Court observed that this application of interim maintenance was pending before the court for 7 years now and Courts could not pass orders for enforcement against the successive applications filed by the Wife.

For the above purpose, Supreme Court provided for framing of guidelines on the issue of maintenance, which would remove issues of  overlapping jurisdiction under different enactments for payment of maintenance, payment of Interim Maintenance, the criteria for determining the quantum of maintenance, the date from which maintenance is to be awarded, and enforcement of orders of maintenance.

Read complete Judgement:     https://main.sci.gov.in/supremecourt/2018/37875/37875_2018_39_1501_24602_Judgement_04-Nov-2020.pdf