- Tools: ARBITRATION, CONCILIATION AND MEDIATION
- Arbitration: a trained neutral third party resolves the case. Binding reward. Arbitrator nominated by the court.
- Conciliation: A compromise is made. Not binding.
- Mediation: A consensual decision is reached by disputing parties themselves. A mediator is selected whose authority rests on agreement by the two contesting parties.
- The conciliator is in the Indian context, often a Government official whose report contains recommendations. So far as Department of Legal Affairs is concerned, this Department provides annual recurring Grants-in-aid to National Legal Services Authority (NALSA) which is a statutory body.
- As regards the promotion of alternative methods of dispute resolution, the International Centre for Alternative Dispute Resolution (ICADR) was set up by the Department of Legal Affairs as an autonomous body registered under the Societies Registration Act, 1860.
Public Interest Litigations
- “Public interest Litigation“, in simple words, means, litigation filed in a court of law, for the protection of “Public Interest”, such as Pollution, Terrorism, Road safety, Constructional hazards etc. [filed in 1979 in India for the first time — Hussainara Khatoon v State of Bihar on pitiable conditions of prisoners. Led to release of 40000 prisoners]
- Public interest litigation (PIL) was a revolutionary concept initiated with a laudable object. In the words of the Supreme Court of India, it was aimed at “fostering and developing the laudable concept of PIL and extending its long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, un-represented and unheard”.
- However PIL been used by NGOs who are becoming “Proxy Litigants” or “a front for settling corporate rivalry or personal vendetta”
- Made justice more accessible for the poor.
- Dramatic improvements in environmental conditions and human rights due to PILs
- Landmark PIL judgments:
- Vishaka v. State of Rajasthan or Vishaka Case on guidelines about sexual harassment
- DK Basu Case that shaped DK Basu Guidelines for treatment of undertrial and arrested people.
- TSR Subramaniam Case
- Prakash Singh Case on Police Reforms
- Misuse examples:
- Public interest litigation was filed for “reliefs” such as private planes and special transport for the higher judiciary. — Filed in Uttar Pradesh by a lawyer for publicity.
- Misuse for:
- Political purposes “political interest litigations” or
- Publicity “publicity interest litigations”
- Private — “private interest litigations”
- Hidden litigants used for settling business problems or scores
- The third and equally disturbing aspect is the misuse of PIL by hidden litigants. This is happening in all sorts of matters; rival business groups are settling scores by resort to PILs. Persons who describe themselves as “public spirited persons” and others as “social organisations” spring up overnight to canvass these causes.
Uniform Civil Code
- Shah Bano Case 1985 and Danial Latifi case 2001
- Shayara Banu Case — fight against triple talaq
- Article 44 DPSP
- Reform of personal law is not enough as personal law themselves could be restrictive. For example: Muslim women are not allowed to adopt children under personal law.
- Hindu Code Bill 1955 — Hindu Marriage Act, Hindu Succession Act, Special Marriage Act — problem: Registration not required by Hindu Marriage Act therefore child marriages could continue
- Muslim Personal Law Application Act allows muslims in India to be governed by Shariat Law as per their choice.
- Goa is the only state with UCC as per the Portuguese civil code
Ordinance Making Power
- Article 123
- This is a legislative power in hands of the executive, thereby negatively affecting “Separation of Powers Doctrine”
- DC Wadhwa v. State of Bihar — 259 instances of ordinances in one year by Bihar government
- RC Cooper vs. Union of India — ordinance must meet some conditions
AERB and Nuclear Security Structure in India
- Raja Ramanna Committee was the first one to raise the question of nuclear security regulatory structure.
- CAG has also pointed out that AERB is not independent and a National Nuclear Safety Authority must be formed for this purpose.
- 2014 “Nuclear Materials Security Index” prepared by Nuclear Threat Initiative (NTI) ranks India low at 23 out of 25 countries.
- Currently, the AERB regulates Indian nuclear civilian security structure. However, AERB is not independent as it is under the Atomic Energy Commission only. [Dept. of Atomic Energy]
- It cannot oversee defence nuclear infra.
- No established by an Act but by government order.
- RTI’s significance lies in its mandate to promote transparency, accountability and participation of citizens in government.
- Lack of manpower as many top posts in the Information commissions are empty
- Attacks on various RTI activists are raising questions on law and order condition
- Close to 25,000 appeals are in backlog
Aadhar and Right to Privacy — IMP
- Aadhar card has raised concerns of privacy as it uses biometric information and important demographic data of individuals. At the same time, it promises to enable efficient and timely delivery of public services via direct benefits transfer.
- Amidst these concerns, various government depts. have approached the Supreme Court requesting it to relieving them from its orders to provide services to the poor without the need of Aadhar card.
- However, Supreme Court has refused this and raised many constitutional questions and observations.
- Poor cannot “surrender” their privacy rights to get benefits:
- Firstly, the poor do not need to surrender their right to privacy in order to avail these public benefits. This would differentiate between the rights of poor and the rich.
- The middle path can be reached by government in addressing both the efficient and timely delivery of services as promised by Aadhar as well as doing its most to protect rights of the poorest people.
- This can be done by allowing citizens to opt-in to waive their rights of privacy if they want in order to use Aadhar related subsidies.