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Case Summary

Secretary, Ministry Of Defence V. Babita Puniya And Ors.

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This Case Summary is written by Apoorva Singh & Ananya Singh, students of Galgotias University

SYNOPSIS

Gender equality has always been a point of discussion. In this case, we talk about gender equality in the armed forces. This case discusses granting permanent commission (hereinafter PC) to female officers who were enrolled via Short Service Commission in the year 1992. The bench of the Supreme Court consisting of Justice DY Chandrachud and Ajay Rastogi gave a rebuff to the contention raised by the army for denying PC to women. They criticized the army’s assumption about the ascribed role of women and labelled them as highly stereotypical. The judgement delivered by the bench is laudable, and have become an illustration of the equal outlook of our judiciary. 

BACKGROUND

The case commences from section 12 of the Army Act, 1950 which restricted the enrolment of women in the army, except in selected branches. This leads to the Union government releasing a notification wherein women were allowed to join certain branches for five years. The period which at the initiation was 5 years, was extended to 10 years and later on to 14 years. 

FACTS OF THE CASE 

On 30th January 1992, the Centre released a notification wherein women candidates were granted Short Service Commission. They were allowed to join selected branches of the army. Women who were appointed through SSC demanded equal status as their male counterparts and thereby seek PCs in the army.

In 2003, a writ petition was instituted before Delhi High Court by practising advocate, Babita Puniya for enabling PC to women officers. Many women raised the same issue so their petition was later on attached with Babita’s petition.

In 2006, in a policy revision Centre allowed women officers to serve for a period of a maximum 14 years as SSC officers. Later, Major Leena Gaurav and Lt. Col. Seema Singh challenged the court for the issue which came previously in the same year.

In 2008, the Ministry of Defense issued a circular enabling grant of PCs to women, but only prospectively. 

In 2010, Delhi High Court assembled all the petitions and administered the centre to grant PC to SSC women officers. Army moved Supreme Court challenging this order but Supreme Court upheld the order of Delhi HC.

In 2019, Centre brought notification granting PC to women officers of eight combat support services but only prospectively. The permanent commission applied to only those females who were employed after this request. 

ISSUES

  • Whether women should be granted Permanent Commission in the Indian Army?
  • Should the guidelines given by the Government of India dated 15th February 2019 be implemented? 
  • What are the conditions governing the Women Officers in the Indian Army?

CONTENTIONS

ARGUMENTS BY APPELLANTS

Appellant i.e. the secretary and ministry of defence’s contentions were taken forward by the Union of India.

  • According to the Union of India, the Delhi High court successfully slipped up sections 10 and 12 of the Army Act, 1950. These sections clearly state that the grant of PC is at the hands of the President of India and no women can seek employment apart from in areas government may seem fit. Therefore, no mandamus can be adduced in the court.
  • Under Government Policy dated 15th February 2019, the benefit of pension is to be bestowed to those women officers who have completed fourteen years of service.
  • Strengthened by section 12 of the Army act and Article 33 of the Constitution, query concerning recruitment and grant of PC is termed as policy considerations and are governed by the executives. The scope of judicial review in command and tenure has been limited as held in the Union of India and anr. V. Lt. Col. P.K. Choudhary and Ors.
  • Union of India believes that army work is unfit for women as it carries “inherent risks” but ironically it has opposite thoughts for males.
  • They cited that women already have to deal with pregnancy, motherhood and childcare, they won’t be able to do justice with their job as a soldier.  
  •  The employment of more women officers into PC’s would disturb the organizational structure, as per the contention of the Union of India.
  • The submission note of the Union of India has stated “physiological limitations” on the employability of Women Officers which comes with the challenges of motherhood, confinement and childcare. 
  • The placement of Women Officers in border areas is not preferable because the area lacks elemental hygiene.

ARGUMENTS BY RESPONDENTS 

  • Despite there being no stay order against the judgment of the Delhi High Court, no steps were taken to grant PCs to lady officials in the army.
  • Bashing on above submissions, respondents furthered that only 4% women are employed in army whereas male holds a total of 96% employment in the army. Will this not count as prejudicial?
  • Union of India stated that the existence of women in the army will destruct unit cohesion. The respondent in return said it would not happen only if the army treats women equally.
  • Women officers have been left high and dry without any kind of pensionary privilege in comparison to their male equivalent.
  • Even though there are vacancies of officers in support services, they are not allotting to women but those are filled by Retired Male officers of colonel rank.
  • Appellant professes that woman officers are posted to those areas where the probability of conflict is almost a zilch while conversely 30% of all women officers are exposed to the warzone.
  • Despite qualifying every mandatory course as their male equivalent, they are not able to seek PCs. This biased nature lowers the status of women to that of a jawan. 
  • The army does not have a rule on which officers seeking PC imperatively allotted troops. If women officers meet qualifying criteria they must be promoted to the next rank just as their male equivalent.

FINDINGS

  • Centre asserted that it is the woman who has the domestic duties on them. This deep-seated stereotype approach of the appellant infringes Art.14 of the women.
  • Court dissented with the appellant on the hygiene and sanitization argument by stating that already 30% of women are exposed to minimal hygiene and warzone area.

REASONING

  • Justice Chandrachud detected those dominant mindsets who suffer from a deep-seated stereotype about the role of women in society. While criticizing this opinion of the appellant, Justice Chandrachud held that women should not be deprived of opportunities merely because dominant mindsets of the army have a discriminatory approach towards them. 
  • Art.33 permits parliament to restrict fundamental rights of armed forces only to the extent that it ensures the proper discharge of duty and discipline within them. However, the partitioning in giving the PC status to female officers cannot be called a proper discharge of duty. Thus, the army could not take the protection of Article 33.
  • Not granting PC to female officers is their infringement of Art.14, 15 and 16.
  • The Court held that the policy decision of the Union of India dated 25thFeburary 2019 that allows Permanent Commission to women officers in 10 streams is as per sec.12 of the Army Act, 1950.

DISPOSITION/ JUDGMENT

The Supreme Court judgment is subject to certain conditions that are listed below:-

  • All-female officers of SSC are eligible to PC putting aside the fact they have crossed 14 or 20 years of service. 
  • The statements stating “in various staff appointments only” and “on staff appointments only” in both Para 5 and 6 shall not be enforced. 
  • Female officers from now on receive privileges like pension or promotion benefits like their male equivalent.
  • Women who crossed 20 years of service and have not granted PC shall retire on pension terms.
  • Women SSC officers shall have the choice of opting for PC just as their male counterparts.

CRITICAL ANALYSIS

The union in submissions asserted that Art. 33 of the Indian Constitution empower Parliament to restrict fundamental rights of armed forces but the argument was rejected by Justice Chandrachud. In lieu, he said that Art. 33 are not intended to restrict someone’s fundamental right up to the time proper discharge and discipline is maintained.

While evaluating Union submissions, Justice Chandrachud inferred the judgment by reckoning the interpretation of sex, understood regarding socially constructed gender, in NALSA and Navtej Singh Johar judgments. Herewith, the court stated that traditional gender roles, such as that a woman’s primary responsibility is domestic, can be considered biased under articles 15 and 16. 

The judgment should be applauded as it has resulted in gender equality and simultaneously shattered gender stereotypes and discrimination prevailing in the dominant mindsets of the Union. But will it have any influence outside the purview of the armed forces? Judgments like Triple Talaq and Sabrimala have gained an important battleground as it involves religious personal law. While affairs on public employment like the Puniya case may carry a small weightage but it surely depicts a word that Court will always work against gender stereotypes.

CONCLUSION

India, i.e. Bharat, cannot only be formed on the shoulders of her ‘Shiva’ but also on the shoulders of her ‘Parwati’ and then only Bharat can be a ‘Shakti’:

The Indian Army holds a prestigious reputation in the eyes of the public. An equal gender ratio will enhance the reputation of the Indian army. Many countries are changing their attitude not just to promote equality, but also because they need the skills that women have. It’s been a long fight, dating back to 1992, but it finally paid off when the Supreme Court granted permanent commission status to women officers in the Indian armed forces and made them eligible for command positions, allowing them to perform all types of military roles – full combat, combat support, and combat command. This verdict will serve as a milestone in curbing the gender ratio in our Armed forces. But has this verdict cured all intricacies women face in society? We are farfetched from the real battle, but we can put our feet up as the difference has initiated. This verdict will surely boost the confidence of women to chase their dreams instead of bothering about the patriarchal society. In the end, the judgment is undoubtedly laudable but we have a long way off.

 

Case Summary

JUSTICE K.S PUTTASWAMY & Anr. VS. UNION OF INDIA & Ors., (2017) 10 SCC 1

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This Case Summary is written by Darshee Madhukallya & Chetan Anand Mohapatra, students of National Law University and Judicial Academy, Assam

BACKGROUND OF THE CASE

The Aadhaar scheme was initially launched back in 2009 by the then Congress Government. In 2014, the Government under Narendra Modi had launched a national identification program which would require the people to provide their biometric detail and has thereby set up and agency as Unique Identification Authority of India (UIDIA). It aimed at providing for the individuals a unique identity card. Through this Aadhar system, the biometric details of individuals including fingerprint, face scan, eye scan are taken and they are provided with a unique 12 digit number. It aimed at curbing corruption and working for the welfare of the people by providing them benefit of various schemes. The government made Aadhaar mandatory for availing welfare schemes like MNREGA, Mid Day Meals, etc. 

But there were instances where the confidential details of various individuals got leaked on online platform. This created confusion among the public and at the same time the government had started mandating Aadhaar. This would now allow a person to view every details of an individual, thus violating its privacy. Thus in the year 2012, former Karnataka High Court Retired Justice Mr. Pravesh Sharma and KS Puttaswamy filed a Public Interest Litigation Writ Petition (Civil) No. 494 of 2012 challenging the constitutionality of Aadhaar stating that it violates the Right to privacy. 

This case has been one of the lengthiest cases in India. The relevance of the case lies in the fact that, Right to Privacy was declared a fundamental right as well as granted protection under Article 21 of the Constitution. Also this case has cast a vast impact on various legislations pertaining to same sex marriage, beef ban, etc in India. 

FACTS OF THE CASE

In the year 2012, a Public Interest Litigation was filed by former Karnataka High Court Justice KS Puttaswamy challenging the act. In the year 2016, the Aadhaar Act was framed as a money bill and passed in the Parliament which provided a legal backing to the unique identification system. After this a second writ petition was filed challenging it and was merged with the earlier petitioned by Justice Puttaswamy. The case was then presented before a three judge bench on the basis that it violated the right to privacy. But the Attorney General of the state argued that in the case of M.P Sharma v. Satish Chandra (1954) SCR 1077 (8 judge bench) and Kharak Singh v. State of Uttar Pradesh, (1963) SC 1295 (6 judge bench), the Supreme Court had refused to accept that the right to privacy is a constitutionally protected rights.

In the year 2015 it was referred to a five-judged bench to discuss the validity of the Aadhaar. However an eleven judge bench was also formed that uphold the dissenting view in the Kharak Singh case which has led to various benched of the SC to recognize the Right to Privacy. In this context, a nine-judge bench of the Supreme Court was formed to question regarding privacy as a fundamental right and in the year 2017, it was decided by the bench that right to privacy fall under the ambit of Article 21. Thus, on 26th September, 2018, the five-judged bench in 4:1 ratio gave its verdict that proving of biometric data is not a violation of fundamental right under Article 14, 15, 19 & 21. Although it upheld the Aadhaar Act as constitutional but had struck down the Section 2d, 33(1) (2), 47 & 57 of the Aadhaar Act, 2016 as unconstitutional. With regard to right to privacy as a fundamental right, the nine-judge bench struck down the decisions laid down in the case of M.P Sharma and Kharak Singh case and held privacy to be a right under the Fundamental Rights.

ISSUES RAISED

  1. Whether the Right to Privacy is protected under the Fundamental Rights under Party III of the Indian Constitution?
  2. Whether the government has proper measures to protect the privacy of the individuals in the biometric system?

ARGUMENTS ADVANCED

PETITIONER

KS Puttaswamy objected that the government has no proper legislative backing to protect the stored data and that there is a chance of data intrusion violating the privacy of individuals. He also pointed that it is a fundamental right to a welfare state and so the provisions of the government to link the Aadhaar card is not valid. Strict application of Aadhaar Act may pose a severe concern as it violates the Fundamental Rights and liberties granted to the Indian citizens He also refereed to cases like Govind v. State of Madhya Pradesh & Ors., (1975) 2 SCC 148; Maneka Gandhi v. Union of India, (1978) 1 SCC 248; R. Rajgopal v. State of Tamil Nadu, (1994) 6 SCC 632, etc where right to privacy was provided constitutional protection.

RESPONDENT

The defendant argued that the Indian Constitution does not specifically protect the right to privacy and that, as a result, the right to privacy was not guaranteed under the Constitution, and thus Article 21 of the Indian Constitution (the right to life and personal liberty) had no application as seen in both M. P. Sharma and Kharak Singh case.

JUDGMENT 

The 547-page decision comprises six opinions and numerous intriguing insights. It is crucial to note, however, that only the majority view in a ruling is binding on future cases. Chandrachud J. put down the plurality opinion in this case on behalf of four judges (Kehar C.J., Agrawal J., Nazeer J., and himself), while the remaining five judges (Nariman J., Kaul J., Bobde J., Sapre J., and Chelameswar J.) wrote concurring standpoints. As a result, while Justice Chandrachud’s view is the “plurality” opinion, it does not form a majority because it was not signed by five or more judges. Similarly, concurring opinions are not binding and do not set “precedent” for future cases. As a result, the operative part of the judgment, i.e. the binding part, is merely the order signed by all nine judges, which states:

The judgement of an eight-judge panel in M P Sharma case (1954), which concluded that the right to privacy is not protected by the Constitution, has been overturned. The Court’s following decision in Kharak Singh case (1962) is also overruled insofar as it holds that the right to privacy is not guaranteed by the Constitution. The right to privacy is protected as an inherent part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution and the body of case law that developed following Kharak Singh, recognizing the right to privacy, enunciated the correct legal position.

Justice Chandrachud (on behalf of himself, C.J. Kehar, J. Agrawal, and J. Nazeer): He said that an individual’s privacy is not completely abandoned when they are in the public realm. Furthermore, it was determined that the right to privacy comprised both a negative right against State intrusion, such as the prosecution of homosexuality, and a positive right to be protected by the State. On this basis, the Judges determined that India needed to implement a data protection regime.

Justice Chelameswar: In his ruling, the Judge stated that the right to privacy included the freedom to refuse medical care, the right to resist forced feeding, the right to consume beef, and the right to display religious symbols in one’s personal appearance, among other things.

Justice Bobde: The Judge stated that agreement was required for the transfer of intrinsically personal data such as medical information.

Justice Nariman: In this concurring decision, the Judge divided privacy into three categories: non-interference with the individual body, protection of personal information, and autonomy over personal choices.

Justice Sapre: The Judge stated that, in addition to its existence as an independent right, the right to privacy included an individual’s rights to freedom of expression and movement, and that it was necessary to satisfy the constitutional aims of liberty and fraternity, which ensured the individual’s dignity.

Justice Kaul: The Judge discussed the right to privacy in terms of protecting informational privacy and the right to maintain one’s personal reputation. He stated that the legislation must protect data and limit national security exceptions that allow the State to intercept data.

The Court also acknowledged that the right was not absolute, but that it might be limited if this was granted by law, corresponded to a legitimate aim of the State, and was proportionate to the goal it aimed to achieve.

It is a well-established legal concept that a case is only authoritative for what it decides, not for any observations made during the course of the decision or any assertions that may logically arise from it. As a result, in order to establish which portions of the verdict are binding, it is necessary to evaluate each viewpoint and look for points of agreement among a majority of the nine judges. So, if any judge agrees with Chandrachud J.’s opinion on any issue, it would result in a majority of five out of nine, and thus be binding on lesser benches and other courts. For example, because a majority of the judges agree that privacy is an inalienable natural right that is part of the case’s binding aspect.

CRITICAL ANALYSIS/REASONING

The Aadhaar Act was enacted to provide identity and empowerment to the society’s underprivileged groups. It assigns each Indian citizen a unique identity number. Because the Aadhaar number is unique, it cannot be replicated. The unique identification ensures that the government’s benefits and subsidies are only available to the people who are eligible for them. Aadhaar can prevent unethical actions and the loss of thousands of crore of rupees. Many privacy rights concerns were raised in the case as well. The arguments for privacy rights were founded on the issues of citizen dignity, informational self-determination, and consent. 

The right to privacy was a critical component of the argument. On September 26, 2018, a five-judge bench of the Supreme Court issued a decision in favour of the respondents. The Court affirmed the validity of Aadhaar after striking down certain provisions and sections of the Act that were contrary to the Constitution and violated citizens’ rights. After striking down Sections 33(2) and 57 of the Act, Justice A K Sikri, who wrote the majority opinion, deemed the Aadhaar Act to be lawful. The petitioners expressed a number of concerns, including the right of citizens to privacy, the danger of state surveillance, and the breach of information acquired by the government for citizens’ Aadhaar cards. The petitioners’ questions have weakened UIDAI’s assertion that their system is one of the best in the world and secure enough to keep citizens’ information safe. The Court ruled that the Aadhaar Act was constitutionally legitimate because it was subject to reasonable constitutional constraints.

However, the majority ruling does not protect the demand of autonomy and choice by maintaining the Aadhaar Act. The necessity of Aadhaar for access to government services and benefits, as well as the connection of Aadhaar to the Permanent Account Number (PAN) card permitted by the Supreme Court majority decision, lacks a sufficient constitutional foundation. Even minor exclusions from government initiatives owing to a lack of Aadhaar or an authentication glitch could result in a violation of the constitution’s guarantee of dignity protection. Despite the fact that the majority has struck down Sections 33 (2) and 57, the overall justification for upholding the Aadhaar Act as constitutional fails to meet the criteria of reasonable goal and reasonable means to infringe on the right to privacy.

CONCLUSION

This case gave a new perspective to the right of privacy of individuals. Although Aadhaar Act contains threat to the privacy of individuals but at the same time it has created a system where people can benefit from the schemes of the Government that aims towards a welfare state. Also every person has a right to privacy and thus any schemes or plan implemented by the government should be framed in a way that it doesn’t infringe the basic fundamental rights of the people. The Court’s expansive understanding of the right to privacy has cleared the way for a diverse set of claims. While the precise limitations of the right will continue to evolve case by case, it is obvious that privacy claims will frequently have to be evaluated against other conflicting interests. In the absence of a specified hierarchy among the many rights protected by Part III of the Constitution, each case will be decided solely on the circumstances at hand and the judicial interpretation. For example, can a law on marital rape infringe on a married woman’s dignity, which is central to her privacy and liberty, in order to protect the family’s “private affairs”? Is the efficiency of having a meta-database of information on all citizens more important than the autonomy of those who oppose its implementation? Can an individual’s “right to be forgotten” on the Internet trump many others’ open information needs? In fact, a PIL was filed before the Delhi High Court just last week alleging that the restitution of conjugal rights provision in the Hindu Marriage Act and Special Marriage Act violates the right to privacy. The true test of privacy will be how successive Courts apply the Puttaswamy ruling to these various problems.

Case Summary

CENTRAL PUBLIC INFORMATION OFFICER, SUPREME COURT OF INDIA V. SUBHASH CHANDRA AGARWAL (Civil Appeal no. 10044/2010)

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This Case Summary is written by Sushrita Mishra, a student at University Law College, Utkal University , Bhubaneswar

SYNOPSIS

The Apex Court of India passed a landmark judgment on 13 November, 2019 in a constitutional bench comprising of Ranjan Gogoi. CJ, NV Ramana. J, Dr.  DY Chandrachud. J, Deepak Gupta.J, Sanjeev Khanna. J with respect to the harmonization of Right to Information Act, 2005 and judicial independence. The Court vide its decision held that the office of Chief Justice of India (hereinafter “CJI”) comes in the public domain. The decision has given a new dimension to the “public interest test” in case of conflict between the right to privacy and right to information, both being fundamental rights of citizens. It has also interpreted various terms and phrases including “fiduciary”, “beneficiary”, “public interest”, “information”, “personal information” etc.in the light of various sound legal precedents. It has also highlighted that judicial independence and accountability are complimentary to each other.

BACKGROUND

India is a democratic country. The Constitution of India is the suprema lex of the land. It has granted its citizens as well as non-citizens a set of fundamental rights among which Freedom of Speech and Expression under Article 19(1)(a) and Right to Life and Personal Liberty under Article 21 are two vital rights. The Right to Information Act, 2005 (hereinafter “Act”) was enacted by the Parliament, making the right under Art.19 (1) (a) more prolific, with an object to empower the people of India in decision-making process by giving them access to information by public authorities. The Right to Privacy was also declared to be an important facet of Article 21. A situation of conflict between both the rights arose when Subhash Chandra Agarwal, an activist, sought for information relating to the asset declaration to the CJI by the Judges, collegium system and independence of judiciary.

FACTS OF THE CASE

The respondent, Subhash Chandra Agarwal had filed 3 applications before the Central Public Information Officer ( hereinafter “CPIO”), Supreme Court of India, wherein he sought the information relating to the collegium decision regarding the appointment of some Judges to the Supreme Court superseding the seniority of some other Judges. He had also sought for information wherein there was a report that the decisions of Mr. Justice R. Reghupathi of the High Court of Madras was impacted by a Union Minister. The third application was for declaration of assets by the Judges to the CJI, in pursuant to a resolution passed in 1997. The information in all three applications were denied on the ground that those were not dealt with or available with the Registry of the Supreme Court of India. The Central Information Commission (hereinafter ‘CIC’) directed disclosure of information when the first two applications were appealed by the respondent. Thus, the CPIO, Supreme Court of India moved the SC to appeal against it. The denial of information sought in the third application was appealed to the CIC, wherein it passed an order of remit directing the CPIO to follow the procedure under Section 6(3) of the RTI Act and to inform the Respondent about the authority holding such information. The CPIO filed a Writ Petition before the Delhi HC which ruled in the favor of the Respondent. The decision was referred to the Full Bench, wherein the decision of the Single Judge Bench was upheld and the appeal was dismissed. The CPIO, SC filed a further appeal in the SC. Then all the three appeals were heard together by a 3 Judge Bench, wherein it was of the view that the matter involved a substantial question of law as to interpretation of the Constitution. Ergo, the matter was listed to be heard by a Constitution Bench.

ISSUES

  1. Whether the disclosure of information to the public relating to the office of CJI and collegium system amounts to the interference of in the judicial independence?
  2. Whether Section 8(1) (j) exempt the information sought for the public disclosure?
  3. Whether the disclosure of information sought for relating to judges would curtail or prevent the constitutional authorities from expressing their free and frank expression?

CONTENTIONS

On behalf of the Appellant 🙁 Represented by Mr. K.K.Venugopal, Attorney General for India and Mr. Tushar Mehta, Solicitor General of India)

It was contended on behalf of the appellant that the position of the Judges is sui generis, hence, cannot  be subjugated to litigative public debate as such disclosure of information shall transgress the independence of judiciary. It was submitted that the Right to Information is not an absolute right and is subservient to the Second Schedule and Sections 8 and 11 of the Act. It contended that the information sought is personal in nature and its disclosure has no relation with public activity or public interest. The revelation shall rather pave way to unwarranted invasion of privacy. It also stated that the consultation and correspondence between the office of the CJI and other constitutional functionaries is of fiduciary nature with the CJI as the pater familias. Thus, exemption from disclosure is not only justified but also essential. The contentions relied on the precedents of in Re Coe’s Estate Ebert et al v. State et. al , Bhudan Singh and Another v. Nabi Bux and Another , Kailash Rai v. Jai Ram and Dollfus Mieg et Compagnie S.A. v. Bank of England.

On behalf of the Respondents: (Represented by Mr.Prashant Bhushan)

It was contended on behalf of the respondents that openness and transparency are the parameters to highlight the independence of the judiciary, thus, the disclosure should not be immune. Moreover, the citizens have been bestowed with the statutory as well as constitutional right to information. The information sought has a significant concern for larger public interest. They also stated that there exists a fiduciary relationship, not between the CJI and other Judges/other constitutional functionaries, but between the CJI and the public. Therefore, the disclosure is legitimate. The contentions relied on the precedents of  State of U.P. v. Raj Narain and Others and S.P. Gupta v. Union of India & Others.

FINDINGS AND REASONING

The Hon’ble SC held that the SC of India and the CJI are not to be considered as two separate public authority. ‘Public authority’ u/Sec. 2(h) includes the SC of India which includes the office of CJI and Judges of SC. The CJI is the head of  the institution and is a ‘competent authority’ u/Sec.2e(ii) who is empowered, u/Sec 28 of the Act to make rules to carry out provisions of RTI. This ratio shall be analogous to the High Courts too.

The terms ‘information’, ‘right to information’, ‘record’ in the Act were interpreted. It was held that ‘information’ u/Sec. 2(f) is a pregnant term and stressed on the part that ‘information should be accessible by Public Authority and held by or under control of any Public Authority’. Sec. 22 is a non-obstante clause which mandates furnishing of information if it is accessible by Public Authority. But if accessibility by public authority is conditional or prohibited, then it cannot be furnished. Hence, there is no conflict between Sec.22, Sec.2 (f) and other enactments. The right to information is not absolute as Sec.3 starts with “subject to provisions of RTI Act”.

The Sections from 8 to 11 of the Act highlight the exemption and rejection. Sec.8 (1) is a non-obstante clause which implies that right to information is available when information is accessible under the RTI Act and is not covered under the exceptions enumerated. Again, the exceptions are bifurcated into two parts- absolute exemption [8(1) (a), (b), (c), (f), (g), (h) and (I)] and qualified exemption [8(1) (d), (e), and (j)]. The Section 8(2) speaks about discretionary disclosure if it the public authority opines that larger public interest warrants disclosure despite the exemption u/Sec.8 (1) and provisions of Official Secrets Act. The SC has endeavored to strike a balance between transparency and accountability enumerated in Sections 3, 4 and preservation of sensitive or confidential information enumerated in Sections 8, 9, 10, 11. The present case demanded examining the Section 8 (1) (e) and (j).

The Court has interpreted the term “fiduciary relationship and duties” in the light of precedents set and interpretation by dignified legal luminaries. It held that the relationship between the CJI and other Judges is not of fiduciary and beneficiary. Thus, the protection u/Sec. 8(1) (e) is not rendered in this case.

The Right to Privacy has been declared to be a fundamental right included in Art.21 of the Constitution.Sections 8(1)(j) and 11 pose restrictions on disclosure on the grounds of privacy and confidentiality respectively. Information has been classified as public, private and confidential. They can be disclosed only if the larger public interest overrides the protection or any possible harm or injury to the interest of the third party. In the instant case, Sec.8(1) (j) and 11 of the RTI Act cannot be obliterated on this cause.

Absolute transparency in all facets of government is not only impossible but also essential. However, the “test of public interest” is to be applied to justify a disclosure. It has to be assessed whether the right to know outweighs the possible public interest in protecting privacy or outweighs the harm and injury to third parties when the information relates to such third parties or the information is confidential in nature.

The Court held that “public interest” is incapable of a particular definition  and is distinguished from “public welfare”. The. public interest test in the context of the RTI Act will have to tested on the anvil of object and purpose behind the right to information, the right to privacy and consequences of invasion, and breach of confidentiality and possible harm and injury that would be caused to the third party, with reference to a particular information and the person. Thus, the legislative intent was to bestow the discretionary power  in the PIO to weigh the competing interests of right to access information and the ‘possible’ harm and injury to the third party and no conclusive determination can be made that one triumph over the other. 

The SC held that judicial independence is a basic feature of the constitution and includes both functional independence and decisional independence. When the public interest demands the disclosure of information, judicial independence has to be kept in mind and it is not an anathema to  accountability, but complimentary to it. It held  that there is a requirement of distinction between the final opinion or resolutions passed by the collegium with regard to appointment or elevation and transfer of judges with observations and indicative reasons and the inputs/data or details which the collegium had examined. In the latter, public interest test would have to be applied keeping in mind the fiduciary relationship, invasion of the right to privacy and breach of the duty of confidentiality resulting from the disclosure of such details and particulars.The public interest test is to applied differently in different circumstances with respect to the facts and circumstances.

DISPOSITION

The SC dismissed the appeal and upheld the order passed by the CIC directing the CPIO, SC to furnish information on the judges of the Supreme Court who had declared their assets. It passed an order of remit to the CPIO, Supreme Court of India to re-examine the matter after following the procedure under Section 11(1) of the RTI Act as the information relates to third parties, so far as the declaration of assets of Judges is concerned. Before a final order is passed, the concerned third parties are required to be issued notice and heard.

Critical Analysis

The SC has done utmost justice in re-investing public trust in its judiciousness and independence. It has reasonably harmonized two conflicting rights of information and privacy making a peaceful coexistent atmosphere. It has been rightly pointed out that absolute transparency is neither feasible nor fruitful. However, ‘how much transparent is transparent’ is a matter of fact and endeavour should be made from the respective public authorities to make themselves more accountable and transparent without much effort on the part of the general public. Again, ‘public interest’ and ‘interest of public’ are to be distinguished and the ‘right to privacy’ should be given priority only in the case of latter as confidentiality of certain information holds the public interest.

CONCLUSION

 The right to information is a human, constitutional, legal and fundamental right. Thus, it must be ensured and enforced by every public authority to enrich the essence of democracy and empower the general public. This shall promote in awareness of public, enhanced participation in decision making process and curtailment of corruption. However, it should also be noted that this right should not be used as a dangerous weapon to unnecessarily transgress the privacy of an individual or institution by camouflaging itself as a so-called-tool for transparency.

Case Summary

Swapnil Tripathi & Ors VS Supreme Court Of India & Ors

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This Case Summary is written by Pragati Singh, a student at Law College, Lucknow

SYNOPSIS 

The present case brought a very prominent but undeterred issue in disseminating the judgements which bind the whole territory. Moreover, the advent of pandemics and recent changes in the functioning of Courts makes this judgement more cardinal. Though the judgement is highly praised, it still has some inadequacy. The petitioners approached the Supreme Court of India with the request of making court proceedings available to litigants, advocates, students of law and the general public keeping in mind the Right Of Access to Justice and heavily packed courtrooms on miscellaneous days. 

FACTS

The petitioners and interventionists under Article 32 have sought a declaration that the Supreme Court case proceedings of “constitutional importance having an impact on the public at large or a large number of people” should be live-streamed in a manner that is easily accessible or public viewing. 

Further, the petitioners sought a proper and balanced regulatory framework before the concept of live streaming of the Court proceedings. Further, guidelines to enable the determination of exceptional cases that qualify for live streaming. 

Petitioners, to corroborate their claim, have relied on a nine-judge bench of the Apex Court in Naresh Shridhar Mirajkar and Ors. Vs. State of Maharashtra and Ors. which held that Article 19(1)(a) included journalists’ right to publish a report of the proceedings which they had witnessed and heard in Court. 

In the abovementioned case, the Court emphasized about the efficacy of open trials for “upholding the legitimacy and effectiveness of the Courts and for enhancement of public confidence and support”. 

ISSUES 

Whether live dissemination of proceedings should be introduced with the aid of Information and Communication Technology (ICT) and if so, under what conditions and exceptions? 

CONTENTIONS 

The petitioners submitted that the Right Of Access To Justice under Article 21 of the Constitution or be it the concept of justice at the doorstep, would be meaningful only if the public gets access to the proceedings. Live proceedings will educate public at large about the issues which come up for consideration before the Court on real time basis.

As no person can plead ignorance of law, there is corresponding obligation on the State to spread awareness about the law and the developments including the evolution of the law which may happen in the process of adjudication of cases before the Court. 

The right to know and receive information, is a facet of Article 19(1)(a) of the Constitution and the public is entitled to witness Court proceedings involving issues having an impact on the public at large or a section of the public.  

Litigants involved in large number of cases pending before the Courts throughout the country will be benefitted if access to Court proceedings is made possible by way of live streaming of Court proceedings. Hence, it will increase productivity and save time. 

Article 145(4) of the Constitution states that pronouncements of judgments by the Supreme Court shall be made in open Court. The concept of “open Court hearing” can be traced to Section 327 of the Code of Criminal Procedure, 1973 (CrPC) and Section 153-B of the Code of Civil Procedure, 1908 (CPC). 

Live streaming of Court proceedings with the use of technology is to “virtually” expand the court room area beyond the physical four walls of the court rooms. It will epitomize transparency, good governance and accountability, and will accommodate a large number of viewers to witness the live Court proceedings. 

Publication of court proceedings of the Supreme Court is a facet of the status of the Court as a Court of Record by virtue of Article 129 of the Constitution. 

JUDGEMENT 

Justice Khanwilkar delivered the majority judgement on behalf of himself and Chief Justice Dipak Misra. Justice Chandrachud delivered a concurring judgement. 

The Court admitted looking up to proposal of Advisory Council of the National Mission of Justice Delivery and Legal Reforms to initiate audio video recording on an experimental basis in the Courts. Policy and Action Plan Document for Phase II for the e-Courts Mission Mode Project proposed audio video recording of Court proceedings but was deferred as it required consultation with Hon’ble Judges of the Supreme Court and the High Courts. 

MAJORITY JUDGEMENT 

The Court agreed with the comprehensive guidelines for live streaming of Court proceedings suggested by the Attorney General Shri K.K. Venugopal. 

The project of live streaming on the “internet” and/or on radio and TV universally by an official agency, such as Doordarshan, will be implemented in phased manner, with safeguards such that it does not interfere with the administration of justice of the Court hearing the matter and/or impinge upon any rights of the litigants or witnesses. 

The project will be executed in phases, before the commencement of first phase formal rules will be framed by the Court to incorporate the recommendations made by the learned Attorney General. 

The Court laid down measures for efficient management of the project such as; (i) appointment of technical committee, (ii) specialist video operator(s), (iii) focus and direction of the camera(s), (iv) case management system, (v) copyright of the Court over broadcast material, (vi) reproduction, re-broadcasting, transmission, publication, re-publication, copying, storage and/or modification rights and its liabilities. 

The Court reiterated that the Supreme Court Rules, 2013 will be amended to provide for the regulatory framework. Therefore, accepted the PIL in larger public interest so as to uphold the constitutional rights of public and the litigants. 

CONCURRING JUDGEMENT 

The Court addressed the importance of “principle of open justice”. Drawing a link between open justice and democratic values, R (Binyam Mohamed) v. Secretary of State for Foreign and Commonwealth Affairs for Foreign and Commonwealth Affairs was cited. 

Open courts allow the public to view courtroom proceedings which is salient feature to maintaining public confidence in the administration of justice. Also, keeps a check on the process of adjudication in judicial proceedings.

Open courts foster public confidence by allowing litigants and public to view courtroom proceedings and ensure that the judges apply the law in a fair and impartial manner. To preserve the rule of law public confidence in the judiciary is crucial. 

All courts in India are open to the public except when the administration of justice requires public access to the court to be restricted. The concept of open court and access to justice was reinforced in majority decision of nine-judge bench in Naresh Shridhar Mirajkar v. State of Maharashtra. 

Again, in Olga Tellis v. Bombay Municipal Corporation value of hearing and principle that justice must also be seen to be done was reiterated. In Life Insurance Corporation of India v. Prof. Manubhai D. Shah Justice Ahmadi dwelt on the significance of disseminating information in a democracy. 

The essence of open courts is diminished as large segment of the society rarely witness court proceedings. This might be due to poverty, illiteracy, distance, cost and lack of awareness. Litigants depend on information provided by lawyers; others depend on the information provided about judicial decisions in newspapers. 

Taking technological developments into consideration the Court in Krishna Veni Nagam v. Harish Nagam put forward the use of video conferencing for certain cases. 

Further, means and ends of technology and its implementation to fulfil the objectives of e-Courts Project were widely elaborated. Functions and application of National Judicial Data Grid and platforms created for service delivery like, e-Courts Portal, e-Courts Services mobile app, SMS Push/Pull, Automated E-Mails, Touch Screen Kiosks and Service Centre, E-Payment and E- Filing database were detailed. 

Reasoning as to why live-streaming will be beneficial to the judicial system were distinctly laid down and compared with countries across globe. A pilot project of live-streaming of national and constitutional importance for about three-months was suggested. 

The Court comprehensively laid down kind of matters to be live-streamed as a form of Model Guidelines for broadcasting of the proceedings. It further laid down manner of live streaming, technical specifications for live-streaming, communications that shall not be filmed, archiving rights and facilities and broadcast room. 

ANALYSIS 

The judgement starts with submission by the petitioners, recommendations by the learned Attorney General for India, comparative study of Courts of countries across the globe and elaborative guidelines by the Court. By means of live proceedings in the absence of official transcription, recordings will serve as oral transcripts. Dissemination of live proceedings flows from Principle of Open Court, Right to Know and Right to Freedom of Speech and Expression. The judgement serves the means of transparency in Judiciary, it being the most trusted body which has been ascribed with the responsibility of keeping a check on other bodies. 

Appreciation Of The Judgement 

The judgement deems fit in taking cognizance of the matter of disseminating Right of Access to Justice which includes Right to Access Live Court Proceedings. Both majority and concurring judgement distinctively laid down guidelines, procedure, application, prevention and precautions to be taken during live proceedings. 

Criticism Of The Judgement 

  • TEST OF ALL TIMES

The advent of pandemic brought even Courts to a still but technology came as a rescue apparatus and aided the process of adjudication. After being restricted to judge, courtroom stakeholders and functionaries for a prolonged period in a very first move by Calcutta High Court, immediately after lockdown, the Kerala High Court live-streamed its proceedings. In June 2020, Delhi High Court in its highly appreciated move allowed public to witness live court proceedings. When the Supreme Court started hearing matters via video conferencing, even the Supreme Court Bar Association raised a demand for live-streaming the hearing. 

To further the ends of justice and legitimize the present case and Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Ors., live streaming of video conferences shall be done at earliest. 

Though, in a recent move, Chief Justice N. V. Ramana in a virtual address launched an official Supreme Court mobile application which would aid journalists to view the Supreme Court’s witness virtual proceedings. However, currently the application is temporary and “only” devices registered with the Public Relations Office would be able to access links through it. Thus, the judgement fails to pass the test of all time. The Court, abiding by its own judgement should make the virtual proceedings available to public also. The Chairman of e-Committee of the Supreme Court delivered the concurring judgement and therefore, it becomes more pertinent to take cognizance of the ‘Principle of Open Justice’ which seems to be missing in these extraordinary times. 

  • THE MISSING ELEMENT 

To further Right of Access to Justice, transparency under the ambit of Article 129 of the Constitution which allows Supreme Court to publish court proceedings so that “acts and proceedings are enrolled for perpetual memory and testimony”, along with live proceedings and its archives, written briefs by the Counsels can be uploaded on a database. 

The Court may decide the exceptions in case of written briefs in a similar manner like broadcasting of cases as live proceedings. Written briefs shall be voluntary in nature and subject to concerns of privacy, confidentiality of witnesses and litigants to preserve and protect the sentiments of public at large. Publication of written briefs on public domain will serve the purpose of comprehensive understanding of the case. Further, the Court may make publication of briefs compulsory for the cases at are of utmost public importance and concern.  

It is suggested with the idea of educating the general public at large about the cases going on in the Courts of Law that stand as precedent and affect lives of each citizen and non-citizen. Publication of written brief will assist understanding of subsequent cases and interpretation of law as per the needs of the society. Moreover, as judgements too present arguments in a concise manner and case files are not easily accessible, written briefs will serve as an aid for the practising litigants and students of law. 

CONCLUSION 

Such a technology can revolutionize Indian courts indeed; but we should be wary about the fundamental rights of every citizen and Indian constitutional framework. Even in the remotest of areas, the Supreme Court of India has triumphed in its duty to uphold the flag of Right of Access to Justice. In both majority and concurring judgement, the Court enacted elaborative guidelines over the kinds of matter to be live-streamed, manner of live-stream, technical specification, archiving and other miscellaneous broadcasting rules. Hence it becomes apparent from the judgement that even the Highest Court of Appeals of India, which shoulders the burden to keep a check on the other organs of the state, desires transparency and scrutinization for the benefit of every citizen. 

Case Summary

SHAYARA BANO V. UNION OF INDIA AND ORS (2017) 9 SCC 1

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This Case Summary is written by Lavanya Ajaykumar Panicker, a student at DY Patil Deemed To Be University School of  Law, Nerul, Navi Mumbai

SYNOPSIS

“The Triple Talaq Bill is not about politics but empowerment and justice for women. This bill is not about any specific religion and community. The bill is about humanity and justice” – Union Law Minister Ravi Shankar Prasad

The whole case commentary of Shayara Bano v. Union of India and Ors is a landmark case examines the case in which a constitutional court overturned a 1,400-year-old tradition with a 3:2 majority. The custom of triple talaq, which allowed a Muslim husband to give his wife an instant and irreparable divorce, was declared unlawful. The current decision takes into account a slew of earlier cases in which this problem has been challenged. However, the constitutional legitimacy of Triple Talaq has never been questioned before a Constitution Bench of five Supreme Court judges. Another unique feature of the whole case was that the minority ruling, in the interest of justice, enjoined the enjoyment of Art. 25 under Art. 142 of the Constitution. Even if the Court was divided on the law, it was adamant about ending the antiquated and disgusting practice that even Islam despises, even though the degree of transformation this ruling would bring about is unknown.

BACKGROUND

“Triple Talaq is not integral to religious practice and violates constitutional morality.”

The Supreme Court’s 5 Judge Bench issued its judgement in the Triple Talaq Case on August 22, 2017, ruling the practice unconstitutional by a 3:2 majority. Shayara Bano’s was Rizwan Ahmed’s wife for 15 years. He divorced her in 2016 by an instantaneous triple talaq called ‘talaq -e biddat’ and was subsequently given a ‘Talaqnama.’ She asked the Supreme Court to uphold three practises talaq-e-biddat, polygamy, and nikah-halala unconstitutional since they contradict Articles 14, 15, 21, and 25 of the Constitution. On February 16, 2017, the Court requested reasoned responses from Shayara Bano, the Union of India, different women’s equality organization, and the All-India Muslim Personal Law Board (AIMPLB) on the issues of talaq-e-bidat, nikah-halala, and polygamy.

FACTS OF THE CASE

“In the name of empowerment, you (the government) have given nothing but a criminal case to women…the aim of the bill is not to empower Muslim women but to penalise Muslim men” -Congress MP Sushmita Dev

Triple Talaq is not accepted by all Muslim schools of thought; only the Hanafi School of Sunni Islam considers it to be “permissible even if immoral.” Sarabai v. Rabaibai, a case decided five years before the Muslim Personal Legislation Sharait Act 1937, found that “it is a good law, but terrible is philosophy.” Justice Krishna Iyer, on the other hand, was the first to express worry about this habit.

Shayara Bano filed a petition with the Supreme Court, asking for a writ pronouncing the divorce void ab initio since it infringed on her constitutional freedoms. As a result, the constitutional legitimacy of Triple Talaq was brought into doubt before a Supreme Court Constitution bench of five judges comprising of Chief Justice JS Khehar, UU Lalit, RF Nariman, Justice Kurian Joseph, and Abdul Nazeer. In two Guwahati High Court judgments, Justice Baharul Islam dismissed the claim that triple talaq was legal even if it was logically sound. Various judgements in favour and against this tradition were issued during the next two decades. One of the most major matters was Shamin Aru v. State of Uttar Pradesh in 2002, which laid forth the requirements for a legitimate talaq. Although it did not explicitly address the triple talaq, it did engage in a discussion over what constitutes a lawful talaq. This case was eventually cited as a binding precedent to establish why triple talaq is unconstitutional.

Finally, in 2015, two supreme court judges acknowledged the need for it when addressing with Hindu women’s equality to coparcenary property and filed a Suo Moto writ suit.

ISSUES RAISED

“Irrespective of faith, women inherently do not want to divorce without a cause. Be it a Christian, Hindu, and Muslim, women mostly want to save their marriage. Men, on the other hand, have been seen to divorce women over most trivial cases. Men cannot be given supreme right to summarily divorce his wife and abandon her.” -BJP MP Meenakshi Lekhi

Here on matter, there are three judgments: Minority Judgments, written by CJI Khehar and J. Nazeer; two Majority Judgments, one written by Kurian J. and the other authored by Nariman Jon on behalf of himself and Lalit J. The issues in the case are laid out in a methodical manner on, but for the purpose of brevity and clarity, we’ll combine them and simplify them to the following:

  1. Whether the practice of talaq-e-bidat (specifically – instantaneous triple talaq) an essential practice of Islam?
  2. Whether the practice of Triple Talaq violates any fundamental right and is in accordance with part III of the constitution of India?
  3. Whether the practice of ‘Triple Talaq’ is protected bb the virtue of Article 25 of the Constitution of India?

FINDINGS AND REASONING

The court said the practice is “unconstitutional”, “arbitrary” and “not part of Islam”.

  • Talaq-e-biddat is an irrevocable way of declaring Talaq or divorce, by either saying it three times in a row or by saying it once and for all, that is I Talaq you irrevocably. This type of Talaq is distinguished by the fact that it takes effect instantly and is irreversible. Furthermore, Triple Talaq can only be used by a husband towards his wife, not the other way around. The Quran condemns the practise of Talaq, but it condemns even more the irreversible and arbitrary form of divorce in which the husband is not required to offer a cause for the divorce and in which the couple is not allowed to reconcile. Furthermore, Justice Kurian J relied on these cases: Shamim Ara, Masroor Ahmed, and Jiauddin Khan v. Anwara Begum by Najarul Islam J in determining that Triple Talaq is unIslamic. The essentiality test identifies if a behaviour is a necessary element of one’s religion. CJI Khehar and Justice Nariman each took a different approach.

CJI Khehar cited the Sardar Syedna Taher Saifuddin Saheb case, which stated that whether a practise is necessary or not must be determined from the perspective of the members of that community, while Nariman J. cited Commissioner of Police v. Acharya Jagdishwarananda Avadhuta, which stated that whether a practise is essential or not must be determined from the perspective of the members of that community. According to this definition, an essential practise is one that is based on the religion’s basic ideas; it is a bedrock upon which the religion’s edifice is constructed, without which the religion’s intrinsic nature would alter. It is a permanent and necessary component of the religion that cannot be removed or added later. As a result, it would be ridiculous to claim that what is immoral in one group is equally important in another.

  • It was underlined that every citizen’s fundamental right to equality, guaranteed by Article 14 of the Constitution, must be construed to include equality among women of diverse religious groups. Gender equality, equity, and justice, it was argued, were ideals that were inherently entwined within the precedents incorporate to everyone. The conferral of socioeconomic status predicated on patriarchal structures, which places womenfolk at the vulnerability of men, cannot be supported within the ambit of Part III of the Constitution’s fundamental rights. Articles 14 and 15 of the Constitution, it was argued, ban sexual discrimination in addition to equality. Discrimination on the basis of sex was said to be specifically forbidden within Article 15. It was argued that a woman’s right to human dignity, social regard, and self-worth were essential aspects of Article 21’s right to life. Gender balance was argued to be a constitutional aim envisaged by the Constitution’s authors. In response to a question on Article 51A(e) of the Constitution, it was stressed out that one of the proclaimed fundamental tasks included in Part IV of the Constitution was to ensure that women were not exposed to disparaging behaviors that harmed their dignity. Gender parity and women’s dignity were emphasised as quasi. It had already been pointed out that women made up half of the country’s population, and that inequity against women must imply broad gender discrimination, and so the practise is in violation of Part III of the constitution.
  • In terms of religious characteristics, Justice Niraman did not agree that it would be protected by Article 25 since it only protects activities that are an important part of the religion, which many academics and commentators on Sharia have stated is not the case. Although analyzing triple talaq, particularly the religious side of the case, Justice Joseph, while agreeing with Justice Niraman, chose a different path to reach the same conclusion. It argued with Justice Niram that courts should not make religious decisions. In fact, Justice Joseph goes so far as to declare that where a private law is ambiguous on a specific subject, it is up to the court to determine what the legislation actually means. As a result, the court in this case must decide what the provided circumstance of the particular practice or custom is because no one else can. He examined the issue entirely from a cultural perspective, ignoring the constitutional component since he believed that only the legal sanity of triple talaq in Muslim personal law remained to be decided.

CONTENTIONS

After examining all of the official testimony, the Supreme Court divided them into two primary issues:

  1. Is instant Triple Talaq a significant holy practice of Islam? and Is instant Triple Talaq an essential religious practice of Islam?
  2. Is Triple Talaq infringing on the Indian Constitution’s Fundamental Rights?

The subject of whether the Triple Talaq is vital to religious practise arose because the Hon’ble Apex Court cannot dispute or modify any religious practise if it is a significant religious practise. So, if the contested activity is not a fundamental religious practise, the Supreme Court can rule on it and either repeal, amend, or construct it.

CRITICAL ANALYSIS

It is “manifestly arbitrary” to allow a man to “break down (a) marriage whimsically and capriciously”.

The Shayara Bano v. Union of India judicial decision has become a watershed moment in Indian judicial history. Therefore, with this decision, the Supreme Court of India recognised by a majority that, in the event of a disagreement, the basic rights enshrined in the Indian Constitution take precedence over the practices outlined in the Personal Laws. It is critical to understand that the practise of Instant Triple Talaq was not a traditional custom like the other forms of values that have been observed since Islam’s foundation. It was a later addition, resulting from a departure from the original procedures. As a result, the Apex Court’s Hon’ble Judges were correct in declaring this activity to be a non-essential religious practise under Shariat Law.

It is important to highlight that by ruling Talaq-e-Biddat to be illegal, the Hon’ble Apex Court has safeguarded Muslim women’s basic rights who have been subjected to the wrath of this practice. The country was able to rid itself of yet another societal problem as a result of this ruling.

However, the fact that cases of Triple Talaq have been reported even after this ruling demonstrates a lack of legal understanding among the general population. As a result, once a judgement is rendered, legal knowledge about it should be widely disseminated, and individuals should be made aware of the consequences of failing to comply with the decision. Everyone should be aware of their rights, as well as their obligations and duties.

FINAL VERDICT

Eventually, the Hon’ble Supreme Court, by a 3:2 majority, ruled the practise of Instant Triple Talaq to be unconstitutional and instructed the Parliament to adopt legislation in this respect. It cleared the path for the Muslim Women Protection of Rights on Marriage Act, 2019, to be passed in July of this year. It ruled Triple Talaq to be invalid and illegal, whether in writing or electronic form.

CONCLUSION

“Implementing the Triple Talaq Bill in its current form will be a disaster as many men, fearing criminal prosecution, may simply abandon their wives rather than divorcing them.” -BJD MP Rabindra Jena

This judgement is a watershed moment in the protection of women of minority religions in a country whose personal laws aren’t in line with core constitutional rights. The measure not only makes triple talaq illegal, but it also punishes men who seek to desert their spouses through it. The ruling is a real illustration of how democratic ideals like as equality, liberty, and endless others would not be stifled by any worldview, whether religious or not.

Case Summary

S.R. BOMMAI v. UNION OF INDIA 1994 (3) SCC 1, AIR 2017 SC 2734

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This Case Summary is written by Ankush Talwar & Kamaksshee Khajuria, students of Dr. B.R. Ambedkar National Law University,  Sonepat, Haryana

SYNOPSIS

‘S.R. Bommai v. Union of India’ is a historical landmark judgment given by the Supreme Court, which talks about the Presidential Proclamation under Article 356 of the Constitution of India. It acts as a guide for all the issues arising out of the Centre-state relations and misuse of Article 356. Under this Article, ‘the Central government can take control over a State government, in a situation wherein the State legislative machinery cannot function in accordance with the Constitutional provisions and that’s why the matters pertaining to this Article may involve controversy.’ So, to restrict such unconstitutional removal of the State governments by the Centre, the court firmly held that the General Assembly will have the authority to decide the imposition of a valid proclamation and not the Central government.

BACKGROUND 

This case mainly focuses upon Article 356 of the Indian Constitution, which deals with the emergency provision for imposing Presidential Proclamation upon a State. However, this Article was regarded as a “dead letter” of the Constitution by Dr B.R. Ambedkar due to its misuse as a political tool. Under this Article, the elected state government is dismissed and the Governor of the state, who is a functionary of the federal government, directly becomes in charge of the overall state’s administration. But this power was being repeatedly misused by the Centre to dismiss the state governments of opposite political parties, even without any genuine reasons, which violated the federal character of the Indian political system and the doctrine of popular sovereignty. Thus, to stop this unconstitutional removal of the state governments and to solve the scuffle between the Centre and the States, this judgment was passed.

FACTS OF THE CASE

S.R. Bommai was the 11th Chief Minister of Karnataka, who was representing the Janata Dal Government during the year 1989. On 21st April, his government was dissolved due to the lack of majority support and the President’s Rule was imposed under Article 356(1) of the Constitution. Bommai recommended the Governor to summon the Assembly to conduct a floor test and review the party’s majority, but his idea was rejected and after the approval of the Parliament under Article 356(3), his government was finally dismissed. A writ petition was filed by Bommai in the Karnataka High Court challenging the validity of the Presidential Proclamation, but his petition was dismissed stating that “under Article 356(1), the extent of judicial review is limited and the President’s satisfaction is a valid prerequisite for a legitimate proclamation.” Unsatisfied with the High Court’s decision, Bommai then appealed in the Supreme Court of India stating that the dismissal of his government was merely a ‘political act’ and the imposition of the President’s rule was mala fide, as there were no genuine reasons. Moreover, neither a chance was given to him to prove his party’s majority nor the facts were disclosed by the Central Government upon which the satisfaction was derived, as a part of their duty under Article 74(2). Similar kinds of proclamations were also made in the states like Meghalaya, Nagaland, etc, and thus all these cases were then collectively heard by the Supreme Court to stop the further abuse of Article 356.

PERTINENT ISSUES 

Some important issues raised in the instant case were:- 

  1. What is the Constitutional validity of Presidential Proclamation under Article 356 of the Indian Constitution?
  2. Whether the president has unfettered powers under Article 356(1)?
  3. Whether the imposition of the President’s rule is challengeable and amenable to judicial review? If yes, then to what extent?  
  4. What does the expression in Article 356(1) stating that “a situation has arisen wherein the state legislative functions cannot be in cooperation with constitutional provisions” mean?

CONTENTIONS 

Various Contentions made by both the Petitioner and Respondents are as follows:- 

PETITIONER

  1. The major contention of the petitioner was that he was not given a single chance to prove his party’s majority. Moreover, neither a floor test was conducted nor the Assembly was summoned even after the suggestions had been made to the Governor for the same.
  2. Further, it was contended that the imposition of the President’s Rule was completely mala fide and it is solely a political act since the mere fact of disturbance, torching and looting in the area is no ground for enforcing presidential proclamation, citing that the party is incompetent and must be dissolved. The true motive behind such imposition was to consolidate the power with the centre and put the representatives of the state in a socially unenforceable and inequitable position.
  3. Petitioner also contended that no material facts were presented upon which the president had derived the satisfaction to impose the emergency and dismiss the government. Under Article 74(2), it is the duty of the Union government to reveal all the material facts to both the State’s legislative members as well as the Court on behalf of which such proclamation was imposed and such a duty shouldn’t be ignored.
  4. Lastly, the petitioner made the contention that whether a president can dismiss a state legislature without the approval of both the Houses of the Parliament, and it was also contended that since Secularism is a basic feature of the Constitution, so whether a state government can be dissolved if it is found guilty for administering non-secular acts?

RESPONDENT

  1. The counsel of respondents contended that there is a distinction between the extent and nature of judicial review in constitutional law and administrative law. In administrative law, the court may expand its jurisdiction w.r.t the issues regarding the legislative powers of a governmental body but it doesn’t constitute the same authority in the field of constitutional law. The court can merely declare the actions as an abuse of discretion i.e., ultra vires. It was also contested that the courts don’t have the authority to decide the validity of the conditions for imposing a presidential proclamation. 
  2. Further, it was argued that a Presidential Proclamation would be issued by the President as per Article 356 (1) with the advice of the cabinet ministers as stated in Article 74 (1), but an inquiry into the question regarding whether or not if any advice is given to the President by the cabinet and the judicial review of the reasons on behalf of which the proclamation is made, is strictly ‘prohibited’ as per Clause 2 of the said Article.
  3. Respondents also contended that when the acts of the State Government are non-secular, then it can be dissolved under the contention of Secularism.

RATIO DECIDENDI

The Supreme Court on the basis of appropriate facts, findings and reasons gave the following judgement:- 

  • Interpretation of Article 356 and Judicial Review – It was held that under Article 356 (1), the President’s power to impose emergency is subject to judicial review, but to the extent of scrutinizing, whether the conditions relating to the issuance of the rule have been fulfilled or not. It was also reiterated that a president cannot dissolve a Legislative Assembly until his proclamation is approved by both the houses of the Parliament under Article 356 (3). However, he can adjourn the assembly under Article 356 (1)(c). It was also evaluated that the courts can reinstate the dissolved assembly (status quo) by overruling the proclamation as done in the case of “State of  Rajasthan v. Union of India, AIR 1977”. Justice Sawant and Justice Kuldip Singh interpreted that the use of Article 356 should be the last resort, and it should be imposed only when a state’s governance is unable to be carried out in conformity with the Constitutional provisions. The Jury also relied upon the reports of the Sarkaria Commission for stating different situations, where a President’s rule will be considered justifiable, like in case of failure of state machinery, political crisis, etc. It was also held that if a state government loses its majority or resigns, then the Governor cannot advise the President for imposing President’s rule until adequate measures had been taken to establish a substitute Government. 
  • Concept of Secularism and Federalism – The court observed that Secularism is an essential feature of the Indian Constitution and thus, if a state government administers any kind of unsecular policies or acts in opposition to the Constitution, then it may subject to a proclamation under Article 356. This case also talked about the concept of Federalism in contrast to the Presidential Proclamation, which had conflicting views. Justice Reddy held that “the states are not the projections of Centre and Centre doesn’t possess any power to interfere in State’s machinery unless it is critical”, while Justice Verma, Justice Ahmadi and Justice Dayal were of the view that “it is a part of basic structure of the constitution and that the politics cannot be mixed with religion by political parties.” However, despite the conflicting views, both secularism and federalism were unanimously accepted as the basic features of the Indian Constitution and nobody has the right to violate them. 

Therefore, the Court decreed in favour of the plaintiff by overruling the judgment of the Karnataka High Court and restored the dismissed state government of Janata Dal Party led by S.R. Bommai in Karnataka. Also, similar proclamations imposed in the states like Nagaland and Meghalaya were declared unconstitutional. In addition to this, the Court also gave proper directives w.r.t such proclamations being issued under Article 356 in future.

SIGNIFICANCE AND IMPACT

This landmark verdict had a huge impact on centre-state relations and thus, carries a great significance in Indian politics as it restored the federal character by stopping the arbitrary removal of State governments by the Centre to achieve political gains. It preserved the constitutional sanctity of the state government by limiting the use of Article 356. Although no question of constitutional amendment arose in this case, still the basic structure doctrine was implemented here. The judgment also ruled that a party’s majority will only be determined by a floor test and the approval by both the Houses of Parliament must be there for a valid proclamation, otherwise the dismissed government may be reinstated. The very first impact of this verdict can be seen during the year 1999 when the Vajpayee government was forced to reinstate the government it dissolved. It was also clarified that the Presidential Proclamation is subject to judicial review and even the policies of a state government which are administered against the basic structure of the Constitution, could be a valid ground for the imposition of President’s Rule under Article 356. So, it can be seen that the significance and impact of the S.R. Bommai Case have great relevance in India’s political history.

CRITICAL ANALYSIS 

This Case mainly deals with Article 356 which is an essential provision of the Indian Constitution as it functions to maintain the federal structure of the country and that is why its usage has increased over time. Since 2016, the Presidential rule has been imposed around 115 times in India and during the year 1991-1992 alone, it was imposed 9 times which was the highest till date. Thus, we can see that Article 356 was being used as a political tool, however after the passing of this judgment and formation of the ‘Sarkaria Commission’, its misuse has steadily declined. Although, there is a positive impact but the alarming concern was that even though the frequency has reduced yet the power was highly misused as only around 60 proclamations can be justified, while the remaining are controversial, which depicts that in more than a half of the cases, the power has been grossly misused. So with this alarming discovery, a very important question that arose was “whether this Article should be omitted or not?”, but keeping in view the significance of this Article in maintaining the balance of power between the Centre and the States, deleting it will not be a wise choice as it may lead to a negative impact upon the Centre-State relationship. So instead of deleting it, proper amendments should be made to avoid its misuse in future.    

Now when we look upon the interpretation of Judicial review in the instant case, we can see that even when it isn’t possible to establish a uniform law across all the cases, the judgment of this case established that the Judiciary is the ultimate interpreter and guardian of the Indian Constitution by any necessary means. It was the first time in case of “State of Rajasthan v. Union of India, AIR 1977”, where the notion of judicial review regarding the satisfaction of the President to impose president’s rule came before the Court even after the presence of bar under Article 74 (2) and Article 356 (5), which states that “the Presidential Satisfaction as mentioned in Clause 1 shall be final and conclusive and cannot be challenged in any court on any ground.” However, by omitting the said clause through the 44th Amendment Act, 1978 this exclusion was removed and after the Bommai case, it was concluded that Article 356 doesn’t enjoy transactional immunity. A similar kind of event took place in the case of “C.R. Das v. Union of India, AIR 1999”, where the Governor issued a report mentioning the breakdown of the constitutional machinery in the state, which however was refused by the president stating that ‘bad governance doesn’t amount to breakdown’.

In another case of “Rameshwar Prasad v. Union of India, AIR 2005”, the court said that “the emergency Proclamation cannot be imposed upon the will of Governor, rather it must be made on real and cogent grounds.” However, the interim stay order was not issued and the fresh elections were organised in the above case, which signifies that the principles laid down by the Bommai case were not followed. Though, there were also cases like “Union of India v. Harish Chandra Singh Rawat, AIR 2016”, where the court in order to protect the democratic and federal spirit of the constitution went a step further to execute the floor test by removing the presidential rule for 2 hours. So, preventing the misuse of Article 356 was not always as simple and had its ups and downs.

Therefore, in short, we can say that the court has taken a bold step by making an exemplary effort to restrict the misuse of Article 356 by creating a distinction between the powers of the Centre to interfere in the governance of the State legislature.

CONCLUSION 

S.R. Bommai v. Union of India is a landmark case which not only deals with the basic structure of the Constitution but also strengthens the federal structure of Indian Politics by restricting the interference of the Centre in the State’s administration. Its main objective was to restrain the misuse of Article 356 by ending the practice of arbitrary removal of state governments and it also specified the scope of Judicial review even under the Presidential Proclamation. Besides this, the judgment also highlighted the concept of secularism and federalism as an important part of the basic structure of the constitution. So, it has undoubtedly played an important role in the development of constitutional law and due to its complex nature and conflicting opinions of the judges, it has gained much significance in history and even today. Therefore, it can be concluded that Article 356 is an essential provision of the Constitution of India.

Case Summary

A.K. GOPALAN V. STATE OF MADRAS

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This Case Summary is written by Shaik Muneera, a student at Reva University, Bangalore

SYNOPSIS:

It is a very well known case, and it is said to be the very first case held by the supreme court through which different articles were included in the part of fundamental rights. The major articles included in this case are 19, 21 and 22. This case mainly concerned to the Indian judiciary to explain the fundamental rights of Indian constitution briefly. Later on when the judgement passed, the courts of law in India initiated towards the basic rights of citizens and non- citizens. called fundamental rights in a very broader and extensive manner, and not to fabricate the fundamental rights in a very repressing way as to assemble all the rights of citizens under fundamental rights. For-instance right to privacy, right to health, right against custodial death etc.

BACKGROUND:

In this particular case, the court included Article 21 in the very extreme manner, precisely and stated that expression method confirmed by law only meant any manner which was included in that particular statute by the effective parliament to divest an individual of his/her life or personal liberty, and it was not acceptable to study in the article any alike concept as natural justice. And the court of law governed that each fundamental life is liberated of everyone and article 19 doesn’t appeal where article 21 concerned. The indicated case was much lambasted and it clutched the justification for 25 (Twenty five years), in this time period the right to life and they are not allotted with the proper security. Basically article 21 frolics a very unimportant role in providing any preserving to an individual in reference to life and liberty. The judicial perspective go through exchange after agonizing below the interior emergency urged in 1975 which came into force in1977.  The personal liberty which is included below article 21 of Indian constitution in manner is not a thing other than ones freedom of the physical body , that is liberty from arrest and detention despite the right to control or authority of law. Basically, article 21 is a pledge at odds with deprivation of personal liberty in which article 19 gives protection despite undoubtful limitations. Freedom is guaranteed to every citizen under article 19 of constitution of India. 

FACTS OF THE CASE:

The solicitor AK. Gopalan, is a very well known pleader and socialist, is hampered under “the preventive detention act 1950”. The solicitor took the issue with the rationality of the act on the basis that it is against and infringing the freedom of movement under article 19(1)(d) and personal liberty under article 21 by way of writ petition under article 32 of Indian constitution, a writ of habeas corpus suited against his detention. AK. Gopalan is a very well known communist as said and he was under detention and he is suited for imprisonment. In this appeal, he has specified no. of dates representing the situations how he has been under detention since the day he arrested December 1947. Any way these pleads were retracted by the hon’ble court. On the date of march 1 1950, was apportioned under the decree by madras state government, constructed under section 3(1) of the act (the preventive detention act) which negotiated upon central government and state government of madras. After that he confronts in the court of law, the iniquity of the decree under the act on the basis that the act breaches human’s fundamental rights as the services given under such articles like 13, 19 and 21 and the benefits of this act 4 of 1950 of madras state are not in accordance with article 22 of constitution of India. Mr. Gopalan as well appeased that the order delivered was Mala fide. 

REASONING DISPOSITION:

Detention is worn to enclose the various kind of situation when other person is deprived of their freedom by the state, extended from the revealing period when someone is declared by the police officials for the reason for the observation to a period of imprisonment. Preventive detention is a method of imprison to the person in advance trail on the expectations that delivered would not be the perfect scrutiny of society. “There is however no authoritative opinion available to support the view that this freedom is anything different from what is otherwise called personal liberty. The problem of construction in regard to this particular right in the construction of Danzig is the same as in our constitution. Such being a general position, I am confirmed in my view that the juristic conception that personal liberty and freedom of movement cannot the same thing is the correct and true conception and the words used in article 19(1)(d) must be constructed according to this universally accepted legal conception”.

CRITICAL ANALYSIS:

My analysis  on A.K Gopalan vs State of madras is the article 21 awning method created by judiciary occur is directly the law confirmed by the state. It really means in itself cogitated upon, and it is stated that studying it withing that norms of traditional justice or natural justice would give too indistinct an conception as the implications of natural justice quitting them as not defined. the judgement advances from the value of that the law and natural morals are confusable. When we look into the deep analysis of professor hart’s reasoning he said that there is a connection between the morality and law but there is no similarity. In this particular case the court held that shield this reasoning along with the inclusion that there is a special law i.e., formulation through legislation, which permits it. It can be said that im not totally satisfied with this kind of intervention of law followed in this in the judgement of this particular case, and I contrary cognizances that it doesn’t include natural justice and gradual morals too. The idea of legitimacy of a law starts from the concept of understanding law which has a formal set of rules and regulations. so it should be read and understand personally and peacefully. As commentator I totally support this statement as law is not an easy task to do as the person should have individual interest and personal satisfaction while doing this. and I agree to AK Gopalan’s view that law was mean to realized as “jus” and it means law in abstract sense of principles of natural justice. And not as “rex” as it means enacted law.

CONCLUSION:

In this particular case, the hon’ble court held that, the court included article 21 vastly precisely and went on to attest that the declaration manner confirmed by law means any way which was in the law or included in the particular statute by the able parliament that could deprive a indivisual og his/her life or personal liberty.

Case Summary

INDIAN YOUNG LAWYERS ASSOCIATION ORS. V. THE STATE OF KERALA ORS

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This Case Summary is written by Lavanya Ajaykumar Panicker, a student at DY Patil Deemed To Be University School of Law, Nerul, Navi Mumbai

SYNOPSIS

“A woman with a voice is by definition a strong woman. But the search to find that voice can be remarkably difficult.”

  • Melinda Gates

The Indian Young Lawyers Association brought the case to the Hon’ble Supreme Court of India in 2006 as a public interest lawsuit (PIL). The case focuses on a crucial issue: women’s entry into the Sabarimala Temple. There were several concerns presented, with petitioners arguing that laws restricting women’s access to temples are illegal because they violate Article 14, Article 15, Article 17, Article 25, and Article 26 of the Indian Constitution. The divine Sabarimala Temple is positioned in the Periyar Tiger Reserve in Kerala’s Pathanamthitta District, in the western ghat mountain ranges. Lord Ayyappa is well-known in this temple. It states that it is a place of worship and prohibits women of menstruating age who are between the ages of 10 and 50 from entering. The constitutional bench, which included former Chief Justice J. Dipak Mishra, J. A. M. Khanwilkar, J. Chandrachud, J. R. F. Nariman, and J. Indu Malhotra, delivered the verdict on September 26, 2018, with a 4:1 plurality, with the solitary dissenting opinion coming from J. Indu Malhotra, the bench’s only lady judge.

BACKGROUND

For Hindus, the holy Sabrimala Temple is one of the most well-known pilgrimages and worship sites. Women were prohibited from entering the temple because it was thought that Lord Ayyappa was a Naishtika Brahmachari” and because women of menstruating age are not innocent in that section and would encroach on the idol’s celibacy. S Mahendra filed a petition in 1990, charging that young people were flocking to Sabarimala Temple. Justice K. Paripoornan and K. Srinivasan delivered the same judgement in 1991. The Kerala High Court’s Balanarayana Marar ruled that women between the ages of 10 and 50 are prohibited from offering worship at Sabarimala Temple, adding that the prohibition is not new, but has been in place for a long time. The Sabarimala Temple would be one of Hinduism’s most well-known pilgrimage sites. Women of menstruating age were barred from entering the Sabarimala shrine, which is one of Kerala’s most prominent temples. Several women attempted to join the temple but were denied due to threats of sexual attack.

FACTS OF THE CASE

Women have long fought for equal status and inclusion in public places in our society. However, the situation is improving, and numerous changes have been enacted as a result of court decisions. The Supreme Court has secured Muslim women’s rights from triple talaq, as it did in the Mohd. Ahmed Khan vs Shah Bano Begum And Ors. The Supreme Court has allowed women to enter Haji Ali Dargah in the case of Dr. Noorjehan Safia Niaz And 1 Anr vs State Of Maharashtra And Ors. For a long time, the question of prohibitions on women between the ages of 10 and 50 entering Sabarimala temple has been a source of national discussion. With the Supreme Court’s decision, this topic has regained national prominence. Some scholars say Ayyappa is the Buddhist Purana’s Nilakantha Avalokiteswara. M brought up this point. In her chapter on ‘Introduction to Kerala Studies,’ Sreekala Nair. The appearance of Vavar (a Muslim deity) in the temple grounds is another special feature. The Sabarimala pilgrims visit Arthunkal church, where they retrieve their’ malas,’ indicating some Christian presence. The Sabarimala space witnesses a transformation into the Brahmanic fold of Hinduism, particularly in the twentieth century, from this heterogeneous identity. Sabarimala is said to depict “Naishtika Brahamcharya,” a perpetual brahamcharya and a celibate student who gains great powers from his ascetic endeavours, especially abstention from sexual activities, which he practised before and after becoming a brahamcharya. going to Sabarimala for a pilgrimage as a result, according to a notice sent by the temple’s management board, women of menstruating age are not allowed to join the temple.

ISSUES RAISED

Below stated are the issues stated in Indian Young Lawyers Association & Ors. V. The State of Kerala & Ors are mentioned in brief: 

  1. Whether the exclusionary practice against the female gender amounts to “discrimination”? Whether the same leads to violation of Articles 14, 15, and 17?
  2. Reinterpretation of “essential religious practice” under Article 25. Whether a religious institution assert a claim on the right to manage its own affairs in the matters of religion?
  3. Whether Ayyappa Temple has a denominational character? Whether it is hit by Article 290-A of the Constitution of India or not?
  4. Whether Rule 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits ‘religious denomination’ to ban entry of women between the age of 10 to 50 years?
  5. Whether Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and, if treated to be intra vires, whether it will be violative of the provisions of Part III of the Constitution?

CONTENTIONS

The Sabarimala decision exemplifies the issue of how often customs should circumvent rules. In the case of S., the Kerala High Court made the decision in 1991. Similar arguments were made in Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthpuram, and Ors. In 2017, a three-judge panel was formed to investigate the Sabarimala case. This bench looked into the reasons given by the Kerela government to explain the ban. They have looked at why the Kerala High Court approved the government’s opposing position in 1991. The Kerala High Court explained its decision by stating that it was clearly respecting religious and historical values

FINDINGS AND REASONING

After the High Court barred women aged 10 to 50 from entering the country in 1991, a later petition submitted in 2006 sparked heated debate. Menstruation is not impure, and women should have free access to temples, it was argued in their favour. It is gender inequality to consider women impure when they menstruate. Pinarayi Vijayan, the Chief Minister of Kerala, stated that his party has always advocated gender equality and that women are provided with facilities and security. This activity also violates Article 14 of the Indian Constitution (Equality before Law), as discrimination based on a certain age demographic of women is not permissible.

The case was decided on a 4:1 basis, which found that the exclusion of women from the Sabarimala shrine is illegal, as is section 3(b) of the Kerala Hindu Places of Worship (Authorization of Entry) Act 1965.

This limitation is in violation of the Indian Constitution’s Articles 15, 25, and 26:

  1. Article 15 prohibits discrimination based on religion, ethnicity, caste, sex, or place of birth. This activity is in violation of Article 15 because segregation based on “sex” was used to gain access to the temple.
  2. “Freedom of faith and free profession, promotion, and traditions of religion” are the topics of Article 25. This activity is a violation of Article 25 since it denies women the right to practise their faith freely.
  3. The “freedom to control religious affairs” is addressed in Article 26. This activity is obviously in violation of Article 26 in this case.

The devotees’ prediction is false, since the Ayyappans cannot be classified as a religious denomination because they do not meet the criteria. Article 26’s universal right is given to religious denominations or parts of them, not to people. This religion can be defined by people who have a similar religion, have a common organisation, and are identified as a section by a distinct name. It is important to differentiate between religious believers and denominational worshippers.

  1. The clauses of the Kerala Hindu Place of Public Worship Act, 1965, restricting women’s access to temples, are unconstitutional because they violate Indian Constitution Articles 14, 15, 25, and 26.

The applicant/intervenor in Deepak Sibal & Ors vs Punjab University And Another and others 12 argued that the exclusionary procedure contradicts the enshrined in the constitution principle of dignity of women and equality before the law, and that the burden of demonstrating that it does not violate is on respondent no. 2, the Devaswom Board, which the aforementioned respondent has failed to discharge.

The applicant/intervenor further claims that the exclusionary activity in and of itself violates Article 15(1) of the Constitution, since it amounts to sex discrimination because menstruation is a bodily function that is exclusive to women. The applicant/intervenor has relied on this Court’s decisions in Anuj Garg & Ors vs Hotel Association Of India & Ors to support his/her position. To emphasise that gender inequality in some manner is contrary to constitutional norms, see India and others14 and Charu Khurana and others v. Union of India and others.

DISPOSITION

On September 28, 2018, the Court handed down its decision in this case, ruling by a 4:1 consensus that the women’s ban in Sabarimala Temple is discriminatory. It ruled that the practise infringed on Articles 14, 15, 19(1), 21, and 25 of the Constitution, which guarantee dignity, liberty, and religious freedom (1). The Kerala Hindu Places of Public Worship Act’s Rule 3(b) was declared unconstitutional. If the exclusion was based on “law,” Rule 3(b) permitted Hindu denominations to keep women out of public houses of worship.

CRITICAL ANALYSIS

The Supreme Court’s five-judge panel that heard the case and handed down its decision argued differently and held differing viewpoints. A dissenting opinion was written by Justice Indu Malhotra on the subject. The petitioners and respondents each made some cases before the Supreme Court. The petitioners argued that the temple authorities’ restriction of women’s access to the temple is plainly unconstitutional and in violation of their constitutional rights guaranteed by the Indian Constitution. Exclusion based on biological, morphological properties such as menstruation is arbitrary and unfair, according to Chief Justice Dipak Mishra and Justice Khanwilkar. Both men and women have the freedom to worship, and the temple administrators’ custom was patriarchal and in violation of the Indian Constitution. Any religious belief or tradition that offended women’s integrity by refusing them admission simply because they menstruate was unconstitutional, according to Justice Chandrachud. “The taboo of menstruation has been built up around cultural values in the impurity of menstruating women,” the judge said. They have no room in the legal system. A woman’s menstrual status cannot be seen as a legal statutory justification for depriving her of her dignity and autonomy as a person.

CONCLUSION

“We do not need magic to transform our world. We carry all the power we need inside ourselves already. We have the power to imagine better” — J. K. Rowling

Women have been discriminated against not only because of biological causes, but also because of the Hindu religion’s orthodox ill practises. All people of India have non-discriminatory rights under the Indian constitution, regardless of their rank, age, sex, caste, religion, gender, or other factors. On the basis of the fair assignment interpretation theory, only affirmative discrimination is permitted. In this situation, judicial activism has played a significant part. The Indian judiciary has once again shown its open judicial mind, demonstrating that the mechanical and blind enforcement of archaic legislation leads to unjust acts and prohibitions. The legislature must now ensure that religious traditions and civil rights do not conflict in an unfair way. Any such debate must be resolved by theological amendments. The presence of other bramacharya deities and their temples all over India is another counter-argument to this issue. Lord Hanuman, for example, was a Brahamchari, but women are allowed to enter Hanuman’s temples. Hence, In the road to understanding divinity, it is often observed that women are viewed unequally.

Case Summary

NAVTEJ SINGH JOHAR V. UNION OF INDIA [WP (CRIMINAL) NO. 76 OF 2016]- [SEC. 377 VERDICT]

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This Case Summary is written by YAZHINI B, a student at School of Excellence in Law

SYNOPSIS:

  • The rights of homosexual persons were dealt with in this historic case, which sought to decriminalize private homosexual relations and to declare Section 377 of the Indian Penal Code to be unconstitutional as it was in violation of Articles 14, 15, 19, and 21 of the Constitution.
  • Section 377 of the IPC was struck down on September 2018 by a Five judge bench to the extent of criminalising homosexual relations between consenting adults, but the provisions of Section 377 will continue to govern  non-consensual sexual acts against adults and all acts of carnal intercourse against minors and the acts of bestiality

BACKGROUND:

  • Section 377 of the Indian penal code punishes those who voluntarily has carnal intercourse against the “order of nature”.  This rule was introduced in the British-India era and modelled on the Buggery Act of 1533.
  • Even before this famous case that dealt with the rights of homosexuals, some cases dealt with the constitutional validity of Section 377 of IPC and recognizing the identity of transgender.
  • Naz Foundation Vs Government Of Nct Of Delhi, July 2009:

A public interest litigation was filed before the Delhi High Court by Naz Foundation India Trust challenging the constitutionality of Section 377 under Articles 14,15,19, and 21. The court held that targeting homosexuals contravenes the equal protection guaranteed under Article 14. Since the term ‘Sex’ in Article 15 includes ‘Sexual orientation’ also, discrimination based on sexual orientation is in Violation of Article 15 and hence Section 377 of the Indian Penal Code cannot be used to punish consensual adults having sexual relationships since it is in violation with the right to privacy and liberty guaranteed under Article 21 of the constitution.

  • After the decision made in this aforementioned case, numerous organizations and individuals challenged the judgement. In the case of Suresh Kumar Koushal & Anr vs Naz Foundation, the supreme court reversed the judgement made by the Delhi high court. It held Section 377 of the Indian Penal Code to be constitutionally valid since the section punishes only certain acts and not any particular class of people; hence, there was no discrimination.
  • Many curative petitions were filed against the Supreme Court judgement made in the Suresh Kumar Koshal case. 

FACTS OF THE CASE:

  • A Writ Petition was filed by Navtej Singh Johar and 4 other members of the LGBTQ community for scrapping Section 377 IPC in so far as it criminalised consensual sex between homosexual individuals.
  • The petitioner highlighted that criminalizing the consensual relationship between same-sex adults creates an inferior perception of them by society, thereby affecting their everyday lives and chances of employment.
  • The petitioners invoked Equality, right to privacy, right to sexuality and sexual anatomy and discrimination against a particular class of people against Section 377 of the Indian Penal Code 
  • After hearing the plea, the Supreme Court held that using Section 377 of the Indian Penal Code to victimize homosexuals was unconstitutional, stating that the relationship between consenting adults cannot be a crime, and the court partially struck down the section in its decision.

ISSUES:

1. Whether Section 377 of the Indian penal code violates the right to autonomy and dignity under Article 21 by penalizing personal consensual acts between same-sex individuals?

2. Whether Section 377 of the Indian penal code violates Articles 14 and 15 by allowing discrimination based on sexual orientation?

3. Whether Section 377 of the Indian penal code violates Article 19(1)(a) by criminalizing the gender and sexual expression of persons belonging to the LGBTQ community?

4. Whether Section 377 of the Indian penal code contradicts to the judgement given in the case of Suresh Kumar Kaushal & Anr. Vs. Naz Foundation & Ors?

PETITIONERS CONTENTIONS:

The key arguments placed by the petitioners are,

  • Penalizing same-sex relations under Section 377 of the Indian penal code affects the rights of the LGBTQ community in various aspects of their life and also creates an inferior perception of them in society.
  • Having a consensual relationship with same-sex adults is not “against the order of nature” but a natural feeling that is innate.
  • Section 377 of the Indian Penal Code discriminates against a particular class of people, and hence it is in violation of Article 14 of the Indian Constitution
  • They highlighted the recognition of sexual orientation and gender identity in the “NALSA” judgment.
  • Sexual autonomy and the right to choose a partner of one’s choice is inherent under Article 21 of the Indian Constitution
  • They contended that Section 377 of the Indian Penal Code is arbitrary and should be struck down by quoting the “Shayara Bano vs Union of India ” case.
  • They made submissions to the fact that Article 15 provides protection against discrimination on the ground of sex which includes sexual orientation.
  • They argued that Section 377 violates the ability of the LGBTQ community to express themselves openly under Article 19(1)(a)of the Indian Constitution.

RESPONDENTS CONTENTIONS:

The key arguments placed by the respondents are,

  • Individuals indulging in homosexual activities are more likely to contract HIV, increasing the percentage of AIDS victims in the country.
  • Only the sexual acts which result in reproduction would constitute the order of nature, and the homosexual relationship is against the order of nature.
  • Section 377 of the IPC is not violating Article 15 since it prohibits discrimination based on sex but not on sexual orientation.
  • Section 377 of IPC does not violate Article 14 since the section targets and punishes only a certain act, not a certain class.

DISPOSITION:

  • The Court delivered its verdict on 6th September 2018. The five-judge Bench partially struck down Section 377 of the Indian Penal Code to the extent of criminalising homosexual relations between consenting adults, and the provisions of Section 377 will continue to govern non-consensual sexual acts against adults and all acts of carnal intercourse against minors and the acts of bestiality

ANALYSIS:

  • The five-judge bench overruled the decision made in the Suresh Kumar Koshal case. It held that choice of whom to partner and the ability to find fulfilment in sexual intimacies. The right not to be subjected to discriminatory behaviour is intrinsic to the constitutional protection of sexual orientation.
  • Justice Indu Malhotra emphasised that gender identity and sexual orientation is integral to one’s personality and are a basic aspect of self-determination, dignity and freedom quoting K.S. Puttaswamy & Anr. v. Union of India. She stressed that Section 377 criminalizing “carnal intercourse against the order of nature” compels LGBT persons to lead closeted lives. She emphasised that Sexual orientation is an innate part of the identity of LGBTQ individuals. The sexual orientation of a person is an essential attribute of privacy. Its protection lies at the core of Fundamental Rights guaranteed by Articles 14, 15, and 21.
  • Justice DY Chandrachud emphasised that members of the LGBT community are entitled, like all citizens, to the full range of constitutional rights, including the liberties protected by the Constitution and members of the LGBT community are entitled to the benefit of equal citizenship without discrimination, and to the equal protection of the law. 

CONCLUSION:

Every person in this world deserves to choose their sexual partners and sexual preferences. Even though the LGBTQ community comprises only a small fraction of the population, discrimination against them must be monitored and curbed.  The judgement made in the Navtej Singh Johar case upheld the rights of the LGBTQ community people and made a big step towards a positive perception of the community in the eyes of society. The struggle of the LGBTQ community for recognition of their rights has been happening for a long period of time;. However, although Section 377 has decriminalized same-sex relations, they are still fighting to legally recognise their marriage. It is time for society to accept the LGBTQ community and to let them live with dignity since, for a society to get uplifted, every section of society has to be uplifted. 

Case Summary

INDEPENDENT THOUGHT V. UNION OF INDIA: CASE COMMENT AND ANALYSIS

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This Case Summary is written by Ruchita Yadav, a student at Dr. Ram Manohar Lohiya National Law University, Lucknow

INTRODUCTION

On October 11 2017, the Supreme Court for the first time addressed the government’s obligation towards the Constitutional and Human rights to address child marriages and related aspects of intersectionality. Among several issues, the critical issue was of marital rape with girl children. The article is a case comment on the case, brief and informative account of findings of the court, government’s negligence and absurd defenses. The article aptly covers each aspect related to the case with blend of critical analysis of the delivered judgment.

BACKGROUND/ FACTS OF CASE

An amendment under the Criminal Law (Amendment) Act, 2013 was in sixthly clause of S. 375 of Indian Penal Code, 1860 increasing the age for consent to sexual intercourse from 16 to 18. That means, whether consensual or non-consensual sexual intercourse with a girl child i.e., less than 18 years of age, is rape. But, Exception 2 to aforesaid section permits husband to have non-consensual sexual intercourse with his wife when she’s between 15 to 18 years of age isn’t amounting to rape. 

Independent Thought, a National Human Rights Organization filed a writ petition under Article 32A with view to draw attention towards gross violation of human rights of married girl child between 15 to 18 years of age, therefore, challenging Constitutionality and legality of Exception 2 of S. 375, IPC. Child Rights Trust, a non-governmental organization which works on Child Marriage prevention, joined as an intervenor was also heard extensively. The Home Ministry under the United Progressive Alliance (UPA) government filed counter-affidavit in support of the Exception.

ISSUES INVOLVED

  1. Whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape?
  2. Whether Exception 2 to S. 375, IPC is discriminatory between a married and unmarried girl child?
  3. Is the Court creating a new offence?

CONTENTIONS

  • Petitioner/ Independent Thought

S. 375 of IPC prescribes the age of consent for sexual intercourse as 18 years meaning thereby consensual or non-consensual, any person having intercourse with a girl below 18 years would be statutorily guilty of rape. Exception 2 of S. 375 allows husband of girl child to have non-consensual sexual intercourse with her, thus, taking away their right to bodily integrity.

  • Respondent/ Union of India

The Union of India contended that 15 years age of girl child has been retained in Exception 2 of S. 375 of IPC considering the social realities of nation, providing protection to husband and wife against criminalizing sexual activity between them because child marriages still take place due to uneven economic and educational development in country and it wouldn’t be appropriate viewing socio-economic conditions of nations and due to traditional practices.  Indian tradition evident child marriages and such traditions must be respected and not completely destroyed. Also, criminalizing consummation of a marriage union with a serious offence wouldn’t be appropriate and practical as per of estimation by National Family Health Survey – III which says that there are 23 million child brides in nation.

Through entering into marital relationship, the girl child consents to sexual intercourse with her husband either express or implied. Whatever be the objective petitioner sought to achieve, the marital status of girl child between 15 to 18 years of age has no rational nexus with the objective. Declaring sexual intercourse between girl child and her husband as rape would be a too much intervention in their marital affairs, thus, harming the institution of marriage.

SUPREME COURT’S FINDINGS & JUDGMENT

Division bench of Court refrained itself from giving any opinion on “marital rape” and said that it restricts itself to the issue at hand i.e., whether sexual intercourse by husband with her wife who is a girl child (15-18 years of age) constitutes rape and related issues. The Apex Court found and reacted on following aspects:

Antithetical statutes and Government’s negligence

As per S. 2(d) of the Protection of Children from Sexual Offences Act, 2012, Child is a person below 18 years of age. S. 2(12) of the Juvenile Justice (Care and Protection of Children) Act, 2015 and S. 2(a) of the Protection of Child Marriage Act, 2006 defines Child to be “a person who hasn’t completed 18 years of age”. 

The preamble of the POCSO act recognizes the best interests and well being of children to be of paramount importance to ensure healthy, physical, social and mental well-being. Enacted with consonance of Art. 15(3) of the Constitution, it pinpoints sexual harassment/ violence as heinous crimes. As per POCSO’s provisions, sexual intercourse with a child is a heinous crime and thus, unlawful criminal activity. Exception 2 of S. 375, IPC is clearly contradictory to provisions of the act and its preamble. The duality is that, husband having sexual intercourse with his wife who is a girl child is not rape but is ‘aggravated penetrative sexual assault under S.5(n) of the POCSO Act and thus, punishable.

The JJ act relatable to Art. 13 of the Constitution says that when a girl is married before attaining the age of marriage, the family members, parents and guardian or whoever is taking care of child should be held responsible for marriage. Art. 34 of Convention on the rights of Child, which India is signatory to, binds the nation to forge measures ensuring best interests and health of children. But the Central Government seems to have divided opinions for safeguarding interests of a married and unmarried girl child. Through these conflicting and contradictory provisions, it’s clear that Parliament is ambivalent and ambiguous over issue of criminalizing child marriages and solving the problem pertaining to contradictory statutes.

Violation of Constitutional and Human Rights

Child marriages lead to pernicious physiological and psychological health of girl children. The apex Court also took help of several reports establishing economic costs of child marriages and implications and adverse challenges faced by girl children leaving heavy toll on girls’ mental health. Exception 2 of S. 375, IPC besides providing blanket protection, freedom to husbands for rape but not for lesser sexual act as per S. 354A of IPC constitutes an anomalous and astounding situation. This leads to violation of right to bodily integrity recognized in privacy context, productive choices which is part of Article 21, sexual and reproductive health, decision-making power, basic freedoms and exposes them to violence of abuse ranging from controlling and inequitable behavior, negative physical and psychological consequences such as traumatic experience after sexual violence. 

Depriving them of freedom, opportunity for personal development have serious consequences on girl children such as early pregnancy, maternal and neonatal mortality destroys entire psychology and pushes them into deep emotional crisis. This is how exception leads to gross violation of Art. 15(3), 14 and 21. The court emphasizes upon the fundamental rights of girls which must be upheld regardless of their marital status and denial of constitutional and would dilute the implementation of law against child marriage.

S. 2(d) of the Protection of Human Rights Act, 1993 defines human rights as “rights relating to liberty, equality and dignity”. Undoubtedly, sexual intercourse with a girl child without her will or consent would amount to violation of human right. This stance is supported in the Convention on the Rights of Child (the CRC) and the Convention on the Elimination of All Forms of Discrimination Against the Women (the CEDAW).

Violation of rights can’t be justified in name of tradition

The bench aptly pointed out that the Parliament must act rationally and put reasonable thoughts before making a custom as law. In Satyawati Sharma, it was noted that the legislation which might be in compliance with needs during that time might relapse with change in times, needs and dynamics of society and thus, such legislation need to be changed. Also, with change in time the legislation might become arbitrary.

 The bench further pontified that “constitutional morality” requires preventing endangerment of girls and safeguarding their rights. This can be ensured through proper implementation of existing provisions, clearing out all ambiguities in statutes, forging measures to improve educational status of girl children. An absurd tradition can’t be defended to be followed or declared legal just because it’s a tradition. The government’s defense of protecting a tradition was strongly criticized.

JUDGMENT

Justice Lokur found the only pragmatic and viable solution as to have harmonious and purposive construction of Exception 2 of S.375 of IPC to be in consonance with the spirit of POCSO Act and other pro-child legislations, treaties and conventions that India is signatory of. On the other hand, Justice Gupta held that Exception is liable to struck down as it’s whimsical, arbitrary and capricious. Both judges agreed that, now onwards Exception 2 of S. 375, IPC is to be read as, “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”

The Exception 2 is discriminatory in nature as it distinguishes between a married and unmarried girl child without any reasonable nexus which also violates their constitutional rights. Justice Lokur uttered that by partially or fully striking down the exception, there’s no cavil of doubt that the Court can’t create an offence. Justice Gupta said that the court isn’t creating new offence, but removing what was unconstitutional and offensive.

DISPOSITION & CRITICAL ANALYSIS 

The judgment called for harmonization of the legal framework and addressed several issues of obscurity and uncertainty through clear discussion. For instance, Gupta J. specified that the PCMA has primacy over religion-based personal laws. Both judges had concurring opinion and uttered that married girls should be considered “children in need of care and protection”. The bench pointed out factors that were detrimental to girl children’s overall development, physical and psychological health and concerning with their basic rights. Also, the bench adopted transparent approach in dealing and strike right to the conflicting status of statutes and non-compliance of the Central government with Conventions.

But, somehow, the Apex Court deliberately left out the opportunity to deliver an inclusive verdict targeting the whole issue of “marital rape”. It didn’t take suo moto cognizance of the matter since long time, because the PCMA act with its enactment in 2006 and criminal law amendment act of 2013 focused upon this point, though obliquely and directly respectively. The Court could have put the record straight over the issue of marital rape and utilize the opportunity in more effective manner.

India is one of those several nations who haven’t criminalized marital rape. Arbitrariness of provision which provide punishment for domestic violence, or being hit, injured, physically or mentally by her husband or in-laws would be punishable but the sexual intercourse without her will or consent won’t be designated as rape. This paradoxical situation postulated in statutes reflect the true intentions of makers to not to be called “left-behind” by not substantiating issues such as domestic violence and child marriage and to protect age old traditions and ill-mentality without no reasonable nexus.

CONCLUSION

Consent is an essential element in all important things, that too free consent. Subsequently, minor is not considered fit to consent over matters, for instance in Contracts. When it’s evident that an individual’s mental and physical development isn’t complete by the age of 18 years, how come the government found sexual intercourse with a minor individual fine and give blanket protection to such heinous offence on the name of “importance of tradition”. This is probably because of neglected aspect of gender insensitivity, which perpetuates in an individual’s brain irrespective of the positions they hold and impact of absurd traditions over vulnerable section of society. Instances of gender insensitivity, absence of inclusivity are still visible in Administrative and Judiciary’s actions. Long term developmental steps such as holding webinars and short-term courses regularly are important.