Assignment 1

Public Interest Litigation (PIL) In India

Public-Interest Litigation is a legal contest fought judicially, to armor the public interest. It is
introduced in a court of law, not by the aggrieved party but by the court itself or by any other
private party. It is not necessary, for the exercise of the courts jurisdiction, that the person
who is the victim of the violation of his or her right should personally approach the court. The
traditional rule of Locus Standii that a person, whose right is infringed alone can file a
petition, has been relaxed by the Supreme Court in its recent decisions. Now, the court
permits public interest litigation at the instance of public spirited citizens for the enforcement
of constitutional legal rights. Now, any public spirited citizen can move/approach the court
for the public cause by filing a petition:

1. In Supreme Court under Art.32 of the Constitution;

2. In High Court under Art.226 of the Constitution; and
3. In the Court of Magistrate under Sec.133, Cr. P.C.

It is essentially a new legal ambit in which court of law can initiate and enforce action to
serve and secure significant public interest. This initiative of judicial activism has opened
new horizons for the poor and the destitute. This is definitely an inexpensive medium of
judicial consolation for the ones in need.

However, the person filing the petition must prove to the satisfaction of the court that the
petition is being filed for a public interest and not just as a frivolous litigation by a busy body.
In cases the victim does not have the necessary resources to commence litigation or his
freedom to move court has been suppressed or encroached upon. The court can itself take
cognizance of the matter and proceed on its own, or cases can commence on the petition of
any public-spirited individual.

The seeds of this socially conductive concept were sown in India by Kapila Hingorani, when
In December 1979, she filed a petition regarding the condition of the prisoners detained in the
Bihar jail, whose suits were pending in the court. The special thing about this petition was
that it was not filed by any single prisoner, rather it was filed by various prisoners of the
Bihar jail. The case got filed in the Supreme Court before the bench headed by Justice
Krishnam Malhotra. This petition was filed by the name of the prisoner, Husnara Khatoon,
hence the petition came to be known as Husnara Khatoon Vs State of Bihar. In this case, the

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Supreme Court upheld that the prisoners should get benefit of free legal aid and fast hearing.
Because of this case 40,000 prisoners, whose suits were pending in the court, were released
from the jail.

There after many cases like this have registered in the Supreme Court. It was in the case of
SP Gupta vs Union of India that the Supreme Court of India defined the term Public Interest
Litigation in the Indian Context. The concept of PIL is in harmony with the principles
enshrined in Article 39A of the Constitution of India to protect and deliver prompt social
justice with the help of law. Before the 1980s, only the aggrieved party could approach the
courts for justice. After the emergency era the high court reached out to the people, devising a
means for any person of the public (or an NGO) to approach the court seeking legal remedy
in cases where the public interest is at stake.

PIL is a benign tool of Indian Law in the following contexts:

In PIL vigilant citizens of the country can find an inexpensive legal remedy because
there is only a nominal fixed court fee involved in this.
Further, the litigants can focus attention on and achieve results pertaining to larger
public issues, especially in the fields of human rights, consumer welfare and
environment.

However, it has encountered the following incommodities:

The genuine causes and cases of public interest have in fact receded to the
background and irresponsible PIL activists all over the country have started to play a
major but not a constructive role in the arena of litigation. Many of the PIL activists in
the country have found the PIL as a handy tool of harassment since frivolous cases
could be filed without investment of heavy court fees as required in private civil
litigation and deals could then be negotiated with the victims of stay orders obtained
in the so-called PILs.
The flexibility of procedure that is a character of PIL has given rise to another set of
problems. It gives an opportunity to opposite parties to ascertain the precise allegation
and respond specific issues.
The credibility of PIL process is now adversely affected by increasing misuse of PIL
by people agitating for private grievance in the grab of public interest and seeking
publicity rather than public cause.

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In a bid to regulate the abuse of PIL, the apex court itself has framed certain guidelines in
reference with the governance, management and disposal of PILs. The court must be careful
to see that the petitioner who approaches it is acting bonafide and not for personal gain,
private profit or political or other oblique considerations. The court should not allow its
process to be abused by politicians and others to delay legitimate administrative action or to
satisfy malicious or personal political intentions. Even though it is very much essential to
curb the misuse and abuse of PIL, any move by the government to regulate the PIL results in
widespread protests from those who are not aware of its abuse and equate any form of
regulation with erosion of their fundamental rights. Thus, intervention of the Supreme Court
is required.

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 Assignment 2

Judicial Activism vs Judicial Restraint

Judicial activism and judicial restraint are true opposite approaches. Judicial activism and
judicial restraint, which are very relevant in the United States, are related to the judicial
system of a country, and they are a check against the fraudulent use of powers of the
government or any constitutional body.

Judicial activism is the interpretation of the Constitution to advocate contemporary values

and conditions. On the other hand, judicial restraint is limiting the powers of the judges to
strike down a law.

In judicial restraint, the court should uphold all acts of the Congress and the state legislatures
unless they are violating the Constitution of the country. In judicial restraint, the courts
generally defer to interpretations of the Constitution by the Congress or any other
constitutional body.

In the matter of judicial activism, the judges are required to use their power to correct any
injustice especially when the other constitutional bodies are not acting. This means that
judicial activism has a great role in formulating social policies on issues like protection of
rights of an individual, civil rights, public morality, and political unfairness.

Judicial restraint and judicial activism have different goals. Judicial restraint helps in
preserving a balance among the three branches of government; judiciary, executive, and
legislative. In this case, the judges and the court encourage reviewing an existing law rather
than modifying the existing law. When talking about the goals or powers of judicial activism,
it gives the power to overrule certain acts or judgments. For example, the Supreme Court or
an appellate court can reverse some previous decisions if they were faulty. This judicial
system also acts as checks and balances and prevents the three branches of government;
judiciary, executive and legislative from becoming powerful.

Detractors of judicial activism argue that it usurps the power of elected branches of
government or appointed agencies, damaging the rule of law and democracy. Defenders say
that in many cases it is a legitimate form of judicial review and that interpretations of the law
must change with the times.

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Judicial restraint is a theory of judicial interpretation that encourages judges to limit the
exercise of their own power. It asserts that judges should hesitate to strike down laws unless
they are obviously unconstitutional, though what counts as obviously unconstitutional is itself
a matter of some debate.

Difference

1.Judicial activism is the interpretation of the Constitution to advocate contemporary values

and conditions. Judicial restraint is limiting the powers of the judges to strike down a law.

2.In judicial restraint, the court should uphold all acts of the Congress and the state
legislatures unless they are violating the Constitution of the country.

3.In the matter of judicial activism, the judges are required to use their power to correct any
injustice especially when the other constitutional bodies are not acting.

4.Judicial activism has a great role in formulating social policies on issues like protection of
rights of an individual, civil rights, public morality, and political unfairness.

5.When talking about the goals or powers of judicial activism, it gives the power to overrule
certain acts or judgments. For example, the Supreme Court or an appelate court can reverse
some previous decisions if they were faulty.

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 Assignment 3

Doctrine Of Ultra virus In The Context Of Administrative Law

The object clause of the Memorandum of the company contains the object for which the
company is formed. An act of the company must not be beyond the objects clause, otherwise
it will be ultravires and, therefore, void and cannot be ratified even if all the members wish to
ratify it. This is called the doctrine of ultra vires, which has been firmly established in the
case of Ashtray RailwayCarriage and Iron Company Ltd v. Riche. Thus the expression ultra
vires means an act beyond the powers. Here the expression ultra vires is used to indicate an
act of the company which is beyond the powers conferred on the company by the objects
clause of its memorandum. An ultra vires act is void andcannot be ratified even if all the
directors wish to ratify it. Sometimes the expression ultra vires is used to describe the
situation when the directors of a company have exceeded the powers delegated to them.
Where a company exceeds its power as conferred on it by the objects clause of its
memorandum, it is not bound by it because it lacks legal capacity to incur responsibility for
the action, but when the directors of a company have exceeded the powers delegated to them.
This use must be avoided for it is apt to cause confusion between two entirely distinct legal
principles. Consequently, here we restrict the meaning of ultra vires objects clause of the
companys memorandum.

Basic principles included the following:

An ultra vires transaction cannot be ratified by all the shareholders, even if they wish
it to be ratified.
The doctrine of estoppel usually precluded reliance on the defense of ultra vires
where the transaction was fully performed by one party
A fortiori, a transaction which was fully performed by both parties could not be
attacked.
If the contract was fully executory, the defense of ultra vires might be raised by either
party.
If the contract was partially performed, and the performance was held to be
insufficient to bring the doctrine of estoppel into play, a suit for quasi contract for
recovery of benefits conferred was available.

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 Assignment 4

Independence Of Judiciary In India

Judicial Independence or Independence of Judiciary refers to an environment where judges

are free to make decisions or pass judgment without any pressure from the government or
other powerful entities.

Independence of Judiciary means that the judiciary as an organ of the government should be
free from influence and control of the other two organs i.e., the executive and the legislature
of government. Judicial independence play an important role in maintaining the democratic
set-up of any country. An impartial and independent judicial system alone can protect the
rights of the citizens against the arbitrary powers of the executive or legislature. Freedom
from the influence and control of the executive is of crucial importance. It is important for
individual freedom that the judges give their verdict without fear or favor. It refers to an
environment where the judge can pass impartial judgment.

Every democratic country adopts various means to ensure freedom of the judiciary and
thereby to ensure individual freedom. The U.S.A. has adopted system of separation of powers
to ensure independence of the judiciary. But in constitutional systems based on the concept of
Parliamentary sovereignty, the adoption of separation of powers is ruled out. This is the case
in England. This is also partly the case in India, for in India, the doctrines of Parliamentary
and constitutional sovereignty are blended together.

The constitution of India adopts diverse devices to ensure the independence of the judiciary
in keeping with both the doctrines of constitutional and Parliamentary sovereignty.
Elaborated provision are in place for ensuring the independent position of the Judges of the
Supreme Court and the High Courts.

Firstly, the judges of the Supreme Court and the High Courts have to take an oath before
entering office that they will faithfully perform their duties without fear, favour, affection, ill-
will, and defend the constitution of India and the laws. Recognition of the doctrine of
constitutional sovereignty is implicit in this oath.

Secondly, the process of appointment of judges also ensures the independence of judiciary in
India. The judges of the Supreme Court and the High Courts are appointed by the President.
The constitution of India has made it obligatory on the President to make the appointments in

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consultation with the highest judicial authorities. He of course takes advice of the Cabinet.
The constitution also prescribes necessary qualifications for such appointments. The
constitution tries to make the appointments unbiased by political considerations.

Thirdly, the Constitution provides for the security of tenure of Judges. The judges of the
Supreme Court and the High Courts serve during good behavior and not during the
pleasure of the President, as is the case with other high Government officials. They cannot be
arbitrarily removed by the President. They may be removed from office only through
impeachment. A Judge can be removed on the ground of proved misbehavior or incapacity on
a report by both Houses of Parliament supported by a special majority.
Fourthly, their salaries and allowances are charged upon the Consolidated Fund of India.
Further, the salaries and allowances of Judges of Supreme court and High courts cannot be
reduced during their tenure, except during a financial emergency under Article 360 of the
constitution.

Fifthly, the activities of the Judges cannot be discussed by the executive or the legislature,
except in case of removal of them.

Sixth, the retirement age is 65 years for Supreme court judges and 62 years for High court
judges. Such long tenure enable the judges to function impartially and independently.

Seventh, a retired Supreme court judge cannot practice engage in legal practice in any court
in India. However, a retired High court judge can practice law in a state other than the state in
which he served as a High Court judge. These restrictions ensure that a retired judge is not
able to influence the decision of the courts.

The hierarchy of Judicial system in India plays an important role in maintaining the
independence of judiciary. Supreme Court is the highest court for justice. Then, there are
High Court and District Courts in every states. Then, there are Peoples courts known as Lok
Adalats. If no decision is reached at these Lok Adalats, then the cases move to courts.

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 Assignment 5

Judicial Review With Cases

India opted for parliamentary form of democracy, where every section is involved in policy-
making, and decision taking, so that every point of view is reflected and there is a fair
representation of every section of the people in every such body. In this kind of inclusive
democracy, the judiciary has a very important role to play. That is the concept of
accountability in any republican democracy, and this basic theme has to be remembered by
everybody exercising public power, irrespective of the extra expressed expositions in the
constitution.

The principle of judicial review became an essential feature of written Constitutions of many
countries. Seervai in his book Constitutional Law of India noted that the principle of judicial
review is a familiar feature of the Constitutions of Canada, Australia and India, though the
doctrine of Separation of Powers has no place in strict sense in Indian Constitution, but the
functions of different organs of the Government have been sufficiently differentiated, so that
one organ of the Government could not usurp the functions of another.

The power of judicial review has in itself the concept of separation of powers an essential
component of the rule of law, which is a basic feature of the Indian Constitution. Every State
action has to be tested on the anvil of rule of law and that exercise is performed, when
occasion arises by the reason of a doubt raised in that behalf, by the courts. The power of
Judicial Review is incorporated in Articles 226 and 227 of the Constitution insofar as the
High Courts are concerned. In regard to the Supreme Court Articles 32 and 136 of the
Constitution, the judiciary in India has come to control by judicial review every aspect of
governmental and public functions.

Extent of Judicial Review in India:

The initial years of the Supreme Court of India saw the adoption of an approach characterized
by caution and circumspection. Being steeped in the British tradition of limited judicial
review, the Court generally adopted a pro-legislature stance. This is evident form the rulings
such as A.K. Gopalan, but however it did not take long for judges to break their shackles and
this led to a series of right to property cases in which the judiciary was loggerhead with the
parliament. The nation witnessed a series of events where a decision of the Supreme Court
was followed by a legislation nullifying its effect, followed by another decision reaffirming

9
the earlier position, and so on. The struggle between the two wings of government continued
on other issues such as the power of amending the Constitution.6 During this era, the
Legislature sought to bring forth people-oriented socialist measures which when in conflict
with fundamental rights were frustrated on the upholding of the fundamental rights of
individuals by the Supreme Court. At the time, an effort was made to project the Supreme
Court as being concerned only with the interests of propertied classes and being insensitive to
the needs of the masses. Between 1950 and 1975, the Indian Supreme Court had held a mere
one hundred Union and State laws, in whole or in part, to be unconstitutional.

After the period of emergency the judiciary was on the receiving end for having delivered a
series of judgments which were perceived by many as being violative of the basic human
rights of Indian citizens 7and changed the way it looked at the constitution. The Supreme
Court said that any legislation is amenable to judicial review, be it momentous amendments8
to the Constitution or drawing up of schemes and bye-laws of municipal bodies which affect
the life of a citizen9. Judicial review extends to every governmental or executive action -
from high policy matters like the President's power to issue a proclamation on failure of
constitutional machinery in the States like in Bommai case, to the highly discretionary
exercise of the prerogative of pardon like in Kehar Singh case or the right to go abroad as in
Satwant Singh case. Judicial review knows no bounds except the restraint of the judges
themselves regarding justifiability of an issue in a particular cases.

1. P.A. Inamdar v. State of Maharastra,[AIR 2005 SC 3226] the Supreme Court abolished
state quotas in private unaided professional colleges and specifically held that the state could
not impose reservations in unaided institutions. This led to the passing of the Constitution
(Ninety-third Amendment) Act, 2005 by the Parliament in December, 2005.

2. Golaknath case(1967) - There was a conflict between article 368 and article 13(2) of the
constitution which said that the parliament can amend any law( even the fundamental laws)
but Supreme court made it clear that fundamental laws cannot be changed . Although they
can be curtailed during emergencies.

3. Minerva Mills case(1980) - which ruled out that parliament had unlimited power to
amend the constitution.

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 Case Study 1

Minerva Mills Case

Court of India that applied and evolved the basic structure doctrine of the Constitution of
India. In the Minerva Mills case, the Supreme Court provided key clarifications on the
interpretation of the basic structure doctrine. The court unanimously ruled that the power of
the Parliament of India to amend the constitution is limited by the constitution. Hence the
parliament cannot exercise this limited power to grant itself an unlimited power. In addition,
a majority of the court also held that the parliament's power to amend is not a power to
destroy. Hence the parliament cannot emasculate the fundamental rights of individuals,
including the right to liberty and equality.The ruling struck down section 4 and 55 of the
Constitution (Forty-Second Amendment) Act.

Judgement

In its ruling, the Supreme Court declared sections 4 & 55 of the 42nd amendment as
unconstitutional.Section 55 of the 42nd Amendment, had added clauses (4) and (5) to Article
368 of the Constitution which read:

(4) No amendment of this Constitution (including the provisions of Part III) made or
purporting to have been made under this article whether before or after the commencement of
section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in
question in any court on any ground.

(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever
on the constituent power of Parliament to amend by way of addition, variation or repeal the
provisions of this Constitution under this article.

The above clauses were unanimously ruled as unconstitutional. Chief Justice Yeshwant
Vishnu Chandrachud explained in his opinion that since, as had been previously held in
Kesavananda Bharati v. State of Kerala, the power of Parliament to amend the constitution
was limited, it could not by amending the constitution convert this limited power into an
unlimited power (as it had purported to do by the 42nd amendment).

Since the Constitution had conferred a limited amending power on the Parliament, the
Parliament cannot under the exercise of that limited power enlarge that very power into an
absolute power. Indeed, a limited amending power is one of the basic features of our

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Constitution and therefore, the limitations on that power can not be destroyed. In other words,
Parliament can not, under Article 368, expand its amending power so as to acquire for itself
the right to repeal or abrogate the Constitution or to destroy its basic and essential features.
The donee of a limited power cannot be the exercise of that power convert the limited power
into an unlimited one.

Section 4 of the 42nd Amendment, had amended Article 31C of the Constitution to accord
precedence to the Directive Principles of State Policy articulated in Part IV of the
Constitution over the Fundamental Rights of individuals articulated in Part III. By a verdict
of 4-1, with Justice Prafullachandra Natwarlal Bhagwati dissenting, the court held section 4
of the 42nd Amendment to be unconstitutional. Chief Justice Chandrachud wrote:

Three Articles of our Constitution, and only three, stand between the heaven of freedom into
which Tagore wanted his country to awake and the abyss of unrestrained power. They are
Articles 14, 19 and 21. Article 31C has removed two sides of that golden triangle which
affords to the people of this country an assurance that the promise held forth by the preamble
will be performed by ushering an egalitarian era through the discipline of fundamental rights,
that is, without emasculation of the rights to liberty and equality which alone can help
preserve the dignity of the individual.

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 Case Study 2

Indira Gandhi Vs Raj Narain

FACTS

In this case, an appeal was filed by the appellant against the decision of the Allahabad High
Court invalidating Smt. Indira Gandhis election on the ground of corrupt practices. In the
meantime, the Parliament passed the 39th Constitutional Amendment, which introduced and
added a new Article 392A to the Constitution of India.

It was stated by this Article 392A that the election of the Prime Minster and the Speaker
cannot be challenged in any court in the country. It can be rather challenged before a
committee formed by the Parliament itself.

Although the Supreme Court validated the election of Indira Gandhi but declared the 39th
Amendment to be unconstitutional as it violated the basic structure of the constitution.

The 39th Amendment was made to validate with retrospective effect the election of the then
Prime Minister which was set aside by the Allahabad High Court.

ISSUE

The main question involved in the case was of the validity of clause (4) of the Constitution
39th Amendment Act, 1975. The contention was that this clause in question not only wiped
out the High Court judgment but also the election and the law relating thereto.

JUDGEMENT

The clause of struck down by the Court on the ground that it violated free and fair elections
which was an essential feature that formed the Basic Stuctute of teh Indian Constitution. The
exclusion of judicial review in election disputes in this manner resulted in damaging the
Basic Structure.

The Supreme Court held clause (4) of the Constitution 39th Amendment Act, 1975 as
unconstitutional and void on the ground that it was outright denial of the Right to Equality
enshrined in Article 14, It was held by the Court that these provision were arbitrary and were
calculated to damaged and destroy the Rule of Law.

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Justice H.R. Khanna held, that the democracy is the Basic Structure of the Constitution and it
includes free and fair election whcih cannot be violated.

The Supreme Court in this case, added the following feature as Basic Features to the list of
basic features laid down in Keshavanandas Case. These are

1.Rule of Law

2. Democracy, that implies free and fair elections

3. Judicial Review

4. Jurisdiction of Supreme Court under Article 32.

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 Case Study 3

Marbury Vs Madison

Marbury v. Madison, arguably the most important case in Supreme Court history, was the
first U.S. Supreme Court case to apply the principle of "judicial review" - the power of
federal courts to void acts of Congress in conflict with the Constitution. Written in 1803
by Chief Justice John Marshall, the decision played a key role in making the Supreme Court a
separate branch of government on par with Congress and the executive.

The facts surrounding Marbury were complicated. In the election of 1800, the newly
organized Democratic-Republican party of Thomas Jefferson defeated the Federalist party of
John Adams, creating an atmosphere of political panic for the lame duck Federalists. In the
final days of his presidency, Adams appointed a large number of justices of peace for the
District of Columbia whose commissions were approved by the Senate, signed by the
president, and affixed with the official seal of the government. The commissions were not
delivered, however, and when President Jefferson assumed office March 5, 1801, he ordered
James Madison, his Secretary of State, not to deliver them. William Marbury, one of the
appointees, then petitioned the Supreme Court for a writ of mandamus, or legal order,
compelling Madison to show cause why he should not receive his commission.

In resolving the case, Chief Justice Marshall answered three questions. First, did Marbury
have a right to the writ for which he petitioned? Second, did the laws of the United States
allow the courts to grant Marbury such a writ? Third, if they did, could the Supreme Court
issue such a writ? With regard to the first question, Marshall ruled that Marbury had been
properly appointed in accordance with procedures established by law, and that he therefore
had a right to the writ. Secondly, because Marbury had a legal right to his commission, the
law must afford him a remedy. The Chief Justice went on to say that it was the particular
responsibility of the courts to protect the rights of individuals -- even against the president of
the United States. At the time, Marshall's thinly disguised lecture to President Jefferson about
the rule of law was much more controversial than his statement about judicial review (which
doctrine was widely accepted).

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It was in answering the third question - whether a writ of mandamus issuing from the
Supreme Court was the proper remedy - that Marshall addressed the question of judicial
review. The Chief Justice ruled that the Court could not grant the writ because Section 13 of
the Judiciary Act of 1789, which granted it the right to do so, was unconstitutional insofar as
it extended to cases of original jurisdiction. Original jurisdiction - the power to bring cases
directly to the Supreme Court - was the only jurisdictional matter dealt with by the
Constitution itself. According to Article III, it applied only to cases "affecting ambassadors,
other public ministers and consuls" and to cases "in which the state shall be party." By
extending the Court's original jurisdiction to include cases like Marbury's, Congress had
exceeded it authority. And when an act of Congress is in conflict with the Constitution, it is,
Marshall said, the obligation of the Court to uphold the Constitution because, by Article VI, it
is the "supreme law of the land."

As a result of Marshall's decision Marbury was denied his commission - which presumably
pleased President Jefferson. Jefferson was not pleased with the lecture given him by the Chief
Justice, however, nor with Marshall's affirmation of the Court's power to review acts of
Congress. For practical strategic reasons, Marshall did not say that the Court was the only
interpreter of the Constitution (though he hoped it would be) and he did not say how the
Court would enforce its decisions if Congress or the Executive opposed them. But, by his
timely assertion of judicial review, the Court began its ascent as an equal branch of
government - an equal in power to the Congress and the president. Throughout its long
history, when the Court needed to affirm its legitimacy, it has cited Marshall's opinion in
Marbury v. Madison.

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 Case Study 4

Brown V Board Of Education

Fact

In 1951, a class action suit was filed against the Board of Education of the City of Topeka,
Kansas in the United States District Court for the District of Kansas. The plaintiffs were
thirteen Topeka parents on behalf of their 20 children.

The suit called for the school district to reverse its policy of racial segregation. The Topeka
Board of Education operated separate elementary schools under an 1879 Kansas law, which
permitted (but did not require) districts to maintain separate elementary school facilities for
black and white students in 12 communities with populations over 15,000. The plaintiffs had
been recruited by the leadership of the Topeka NAACP. Notable among the Topeka NAACP
leaders were the chairman McKinley Burnett; Charles Scott, one of three serving as legal
counsel for the chapter; and Lucinda Todd.

The named plaintiff, Oliver L. Brown, was a parent, a welder in the shops of the Santa Fe
Railroad, an assistant pastor at his local church, and an African American.[10] He was
convinced to join the lawsuit by Scott, a childhood friend. Brown's daughter Linda, a third
grader, had to walk six blocks to her school bus stop to ride to Monroe Elementary, her
segregated black school one mile (1.6 km) away, while Sumner Elementary, a white school,
was seven blocks from her house. Supreme Court review

The case of Brown v. Board of Education as heard before the Supreme Court combined five
cases: Brown itself, Briggs v. Elliott (filed in South Carolina), Davis v. County School Board
of Prince Edward County (filed in Virginia), Gebhart v. Belton (filed in Delaware),
and Bolling v. Sharpe (filed in Washington D.C.).

All were NAACP-sponsored cases. The Davis case, the only case of the five originating from
a student protest, began when 16-year-old Barbara Rose Johns organized and led a 450-
student walkout of Moton High School.[20] The Gebhart case was the only one where a trial
court, affirmed by the Delaware Supreme Court, found that discrimination was unlawful; in
all the other cases the plaintiffs had lost as the original courts had found discrimination to be
lawful.The Kansas case was unique among the group in that there was no contention of gross
inferiority of the segregated schools' physical plant, curriculum, or staff. The district court

17
found substantial equality as to all such factors. The lower court, in its opinion, noted that, in
Topeka, "the physical facilities, the curricula, courses of study, qualification and quality of
teachers, as well as other educational facilities in the two sets of schools [were]
comparable."[21] The lower court observed that "colored children in many instances are
required to travel much greater distances than they would be required to travel could they
attend a white school" but also noted that the school district "transports colored children to
and from school free of charge" and that "[n]o such service [was] provided to white children."

In the Delaware case the district court judge in Gebhart ordered that the black students be
admitted to the white high school due to the substantial harm of segregation and the
differences that made the separate schools unequal.

The NAACP's chief counsel, Thurgood Marshallwho was later appointed to the U.S.
Supreme Court in 1967argued the case before the Supreme Court for the plaintiffs.
Assistant attorney general Paul Wilsonlater distinguished emeritus professor of law at
the University of Kansasconducted the state's ambivalent defense in his first appellate
argument.

In December 1952, the Justice Department filed a friend of the court brief in the case. The
brief was unusual in its heavy emphasis on foreign-policy considerations of the Truman
administration in a case ostensibly about domestic issues. Of the seven pages covering "the
interest of the United States," five focused on the way school segregation hurt the United
States in the Cold

The existence of discrimination against minority groups in the United States has an adverse
effect upon our relations with other countries. Racial discrimination furnishes grist for the
Communist propaganda mills.

British barrister and parliamentarian Anthony Lester has written that "Although the Court's
opinion in Brown made no reference to these considerations of foreign policy, there is no
doubt that they significantly influenced the decision.

Case Study 5

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 National Judicial Appointment Commission Case

National Judicial Appointments Commission (NJAC) was a proposed body which would
have been responsible for the appointment and transfer of judges to the higher judiciary
in India. The Commission was established by amending the Constitution of India through the
ninety-ninth constitution amendment vide the Constitution (Ninety-Ninth Amendment) Act,
2014 passed by the Lok Sabha on 13 August 2014 and by the Rajya Sabha on 14 August
2014.[1][2] The NJAC would have replaced the collegium system for the appointment of
judges as invoked by the Supreme court via judicial fiat by a new system. Along with the
Constitution Amendment Act, the National Judicial Appointments Commission Act, 2014,
was also passed by the Parliament of India to regulate the functions of the National Judicial
Appointments Commission.[3][4][5][6] The NJAC Bill and the Constitutional Amendment Bill,
was ratified by 16 of the state legislatures in India, and subsequently assented by
the President of India Pranab Mukherjee on 31 December 2014.[7] The NJAC Act and the
Constitutional Amendment Act came into force from 13 April 2015.[8][9][10][11]

On 16 October 2015 the Constitution Bench of Supreme Court by 4:1 Majority upheld the
collegium system and struck down the NJAC as unconstitutional after hearing the petitions
filed by several persons and bodies with Supreme Court Advocates on Record Association
(SCAoRA) being the first and lead petitioner. Justices J S Khehar, MB Lokur, Kurian Joseph
and Adarsh Kumar Goel had declared the 99th Amendment and NJAC Act unconstitutional
while Justice Chelameswar upheld it.

Constitution of the National Judicial Appointments Commission

Two other senior judges of the Supreme Court next to the Chief Justice of India - ex
officio

The Union Minister of Law and Justice, ex-officio

Two eminent persons

These (two) eminent persons would have been nominated by a committee consisting of the

Chief Justice of India,

Prime Minister of India, and

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 Leader of Opposition in the Lok Sabha (or where there is no such Leader of Opposition,
then, the Leader of single largest Opposition Party in Lok Sabha), provided that of the
two eminent persons, one person would be from the Scheduled Castes or Scheduled
Tribes or OBC or minority communities or a woman. The eminent persons shall be
nominated for a period of three years and shall not be eligible for re-nomination.

Functions of the Commission.

As per the amended constitution, the functions of the Commission would have included the
following:

Recommending persons for appointment as Chief Justice of India, Judges of the

Supreme Court, Chief Justices of High Courts and other Judges of High Courts.
Recommending transfer of Chief Justices and other Judges of High Courts from one
High Court to any other High Court.
Ensuring that the persons recommended are of ability, merit and other criteria
mentioned in the regulations related to the act.

Later Developments

On 3 November 2015 the Supreme Court upheld that it is open to bringing greater
transparency in the collegium system within the following existing four parameters, with
opinions from both the parties(petitioners who challenged the NJAC and the government).

How the collegium can be made transparent

The fixing of the eligibility criteria for a person to be considered suitable for appointment
as a judge
A process to receive and deal with complaints against judges without compromising on
judicial independence
Debate on whether a separate secretariat is required, and if so, its functioning,
composition and powers

On 19 November 2015 the Attorney General Mukul Rohatgi informed the Supreme Court
that the central government will not prepare a draft memorandum for judicial appointments
contrary to committed earlier and suggested the same to be done through a judgement.[

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