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Case Summary

Rajesh Sharma Ors. v. State of UP Anr. [2017 SCC Online SC 821]

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This Case Summary is written by Ishita Gupta, a student at Vivekananda Institute Of Professional Studies, GGSIPU

Background 

Due to cultural and religious factors, India has historically been a patriarchal society. For generations, we have adhered to the traditional convention that women are inferior to males in all aspects of life. Though the paternalistic viewpoint has weakened over time, the notion of male superiority remains intact. Women are restricted to domestic duties and the management of the home and family. The legislation that rules us, as well as associated jurisprudence, reflects this women’s subjection, based on the same belief.  One of area of concern is Dowry continues to remain a major social evil which creates life threatening consequences for women. Section 498-A was inserted in the Indian Penal Code in 1983  , and is an offence arising from marital discord in a marriage. This malicious practice degrades the status of women and reduces them to objects, value of which surges with bigger dowry. Such evil results in women being ill-treated, harassed, killed, divorced for the simple reason. Section 498-A of the Indian Penal Code (I.P.C.) defines the offence of matrimonial  cruelty. Under the Section, offenders are subject to jail as well as a fine, and the offence is not bailable. Although the two sections are not mutually exclusive, both offences and those acquitted under Section 304B are separate.

Facts of the Case

  • Rajesh Sharma and Sneha Sharma got married on November 28, 2012. 
  • Sneha Sharma’s father provided the appellant with a dowry to the best of his ability. However, the appellants were dissatisfied with the dowry amount and began assaulting the complainant, who was assaulted and abused on a regular basis by the husband. The demand was made of dowry of Rs.3,00,000/- and a car which the family could not arrange
  • Due to the harassment Sneha’s pregnancy had been terminated, the appellant then abandoned her at her home.
  • Rajesh Sharma was summoned under IPC sections 498A and 323. The wife has filed a complaint against the husband and their relative, the Appellant, in the case. 
  • The wife also claimed that her husband made dowry demands and that she was harassed by the appellant and his family members while she was pregnant, resulting in the termination of her pregnancy. After perusal of the file and the document brought on record. 
  • As a result of the prima facie case, the trial court called appellant. The appellants went to the High Court to have the summons quashed, but the court dismissed their request. Thereafter, the High Court found no ground to interfere with the order of summoning and dismissed the petition. Hence this appeal.
  • As a result, the appellants filed an appeal in the Supreme Court against the High Court’s decision

Issues before the court 

  • Is it necessary to check the tendency to rope all family members in resolving a matrimonial dispute?
  • Are there rules required to prevent the abuse of Section 498A?
  • Whether the family of the offender will be punished in the act and how to spare the honest people. 

CONTENTIONS

PETITIONERS 

 the Petitions were instituted seeking directions to the respondents to create an enabling environment for married women subjected to cruelty to make informed choices and to create a uniform system of monitoring and systematically reviewing incidents of violence against women under Section 498A of IPC. 

It was also contended the Petitioners in the case for a uniform policy of registration of FIR, arrest and bail in cases of Section 498A of IPC i.e., to immediately register FIR on complaint of cruelty and harassment by married women as per the IPC.

.The Petitioners’ main argument in the case was that the social purpose of Section 498A of the IPC was being lost because the rigour of the provision had been diluted and the offence had been effectively made bailable due to various qualifications and restrictions prescribed by various decisions of this Court.

RESPONDENTS

The Main contention raised in support of this appeal by the appellant side  is that there is a need to check the tendency to rope in all family members in a matrimonial dispute. Allegations against all relatives of the husband cannot be taken at face value when in normal course it may only be the husband or at best his parents. It was also stated that respondent No.2 herself left the matrimonial home. Appellant No.2, father of appellant No.1, is a retired government employee. Appellant No.3 is a house wife. Appellant No.4 is unmarried brother and appellant No.5 is unmarried sister who is a government employee. Appellants Vijay Sharma, Jaywati Sharma, Praveen Sharma and Priyanka Sharma  had no interest in making any demand of dowry. 

Judgement

The session court in its judgment found Rajesh Sharma guilty under section 498A. But later Sneha summoned her parents in law and the brother and sister of the husband. The said petition was accepted by session judge on 3rd July 2014. The appellant then approached the High Court against the order of summoning. Though the matter was referred to mediation center but without any avail. Then the High Court found no ground to support this petition and rejected it. Court also constituted a family welfare  committee and every case related to dowry will go to this committee which gives this committee uncheck power and it can work as a justice dispensation system.

No arrest will be done until the committee gives its report to the magistrate that shows the justice to the victim will be delayed.

This ruling was issued in order to put an end to the harassment and persecution of the husband and family members in fraudulent dowry cases  The supreme court thoroughly evaluated all of the events and issues, and issued numerous instructions on cases brought falsely in order to exact retribution.. The committee’s major goal is to separate the genuine cases from the fraudulent ones. married guy. The provisions of the IPC are being substantially misapplied, according to the court. Provide relief to those who have been the victims of malicious complaints. The accused cannot be excused from appearing in court if he or she is not in the jurisdiction, however video conferencing can be utilised to replace human appearances..

The magistrate’s decision is based solely on his or her experience, and the judgement reflects that. The majority of the cases that the precedent judges used to support their conclusion that 498A is being abused demonstrates their male-predominant viewpoint. 

ANALYSIS

The decision is crucial as its recognized  dowry-related offences, as it prevents the victimisation and harassment of an innocent husband and his relatives

In this case, the Supreme Court agreed that the dowry provision of the Indian penal code had been abused. It is interpreting the goal of the clause, which is to restore innocent people’s human rights. The purpose of this decision was to investigate a complaint made to the police and magistrates. Further, the objective of this committee was to see genuine cases and to opt-out Fraudulent cases. But the fact that the judges ignored The case of the dowry reflects patriarchy and male norms. The rule has reduced physical violence and dowry-related offences to a significant extent, but judges have refused to admit it. The fact that NCRB statistics only indicates the number of cases filed and only 14% of them are found guilty demonstrates the complexities of Indian justice.. For many women, the daily occurrence of violence and stigmatization has been so normalized that they have internalized these things and they only approach a court when the case is of extreme violence. Every case related to dowry will go to this committee which gives this committee uncheck power , which can left a lot of scope for arbitrariness o arrest will be done until the committee gives its report to the magistrate. Committee members who act as a judicial body can be influenced and bribed by accused

CONCLUSION 

Rajesh Sharma vs State of Uttar Pradesh judgment reflects how justice for women in Indian society is far from realized. The court needed to re-examine the effect and purpose of the law and then judge the case. The major problem our judicial system has, is the falling acknowledge and judicial recognition of rights of women.  As a result, the judiciary should reexamine the effect and purpose of law and take appropriate action.

Case Summary

SHATRUGHAN CHAUHAN ANR V. UNION OF INDIA

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This Case Summary is written by Nandini Arya, a student at National Law University, Jodhpur

SYNOPSIS

The Shatrughan Chauhan case is indeed a landmark judgement delivered by the honourable Supreme Court of India. It upheld death-row convicts’ rights irrespective of the nature of the crime committed. The court held that capital punishment of death-row convicts could be commuted if there is an inordinate and unreasonable delay by the executive or if the convict suffers from insanity. The court also held that the death-row convicts could not be kept in solitary confinement. Despite its merits, the judgement has raised certain apprehensions among various legal scholars and jurists. It is also pertinent to note that human-rights activists demand the abolition of capital punishment altogether. Thus, there’s a long way to go in the field of human rights.

BACKGROUND

In Devender Pal Singh Bhullar vs. State (NCT) of Delhi, the court held that mere delay cannot be the sole basis for clemency. The case also distinguished between the death-row convicts booked under TADA and other death-row convicts. 

The petitioners in the present case represent death-row convicts. These death-row convicts have been waiting for years for their mercy petition to be decided. The death-row convicts are booked under various sections. Some of them are booked under TADA. 

A three-judge bench was formed by the Supreme Court to deliver the judgement. The bench being larger, overruled the ratio laid in Devender Pal Singh Bhullar vs. State (NCT) of Delhi. Mr T.R. Andhyarujina was appointed as the amicus-curiae of the case.

FACTS OF THE CASE

Several writ petitions were filed under article 32 of the Indian Constitution in the Supreme Court of India either by the death-row convicts or by their relatives or by People’s Union for Democratic Rights and other like-minded public-spirited bodies. After the death-row convicts were awarded capital punishment by the Supreme Court of India, a mercy petition was filed before the Governor or the President.

The petitioners have alleged unreasonable delay in rejecting the mercy petitions. Some of the petitioners have further stated that the death-row convicts were suffering from mental illness. Solitary confinement, judgments declared per incuriam and procedural lapses were other grounds for filing the writ petition.

Thus, the petitioners have prayed that the death sentence rendered to the convicts be commuted to life imprisonment after the mercy petition has been rejected by the President and the Governor. The petitioners prayed that the rejection of mercy petitions by the President and the Governor in the present case be declared as ultra vires. 

It was further prayed that a set of guidelines be formed by the Supreme Court of India when a mercy petition is to be considered and the rights of death row convicts are duly protected by the Supreme Court.  

ISSUES

  1. Whether unreasonable delay in rejecting a mercy petition can be a valid ground for commuting the death sentence into life imprisonment?
  2. Whether the mental illness of a death-row convict be regarded as a valid ground for commuting the death sentence into life imprisonment?
  3. Whether solitary confinement of a death-row convict be regarded as a valid ground for commuting the death sentence into life imprisonment?
  4. Whether procedural lapses in rejecting a mercy petition be regarded as a valid ground for commuting the death sentence into life imprisonment?
  5. Whether the judgements declared per incuriam later by the Supreme Court be regarded as a valid ground for commuting the death sentence into life imprisonment?

CONTENTIONS

The petitioners have argued the following – 

  1. The decision of the death penalty is not being challenged rather the supervening events that occurred after the confirmation of the death penalty are the basis for filing the petition.
  2. The mercy petitions of the death-row convicts were rejected without taking into account the supervening circumstances such as delay, solitary confinement, insanity, procedural lapses and judgements declared per incuriam.
  3. Executing a death penalty after an inordinate and unreasonable delay would infringe the death-row convicts’ fundamental right under article 21. Hence, the convict can approach the court by filing a writ petition.
  4. Human life is sacred and inviolable. Therefore, every effort shall be made to protect it.
  5. The death-row convicts are protected under article 21 till their last breath. It includes the death-row convicts which were booked under TADA.
  6. The procedure for rejecting a mercy petition was not duly followed and hence, it led to serious injustice to both the death-row convicts and their families.

The respondents have argued the following –

  1. For examining a mercy petition, many documents have to be procured from various authorities. Thus, it takes a lot of time.
  2. There cannot a specific time limit to decide a mercy petition. It varies on the number of mercy petitions filed, the nature of the case and the scope of inquiry to be made.
  3. The courts cannot fix any time limit on their own since no time limit is fixed for the president under article 72 for the same.
  4. The power of the president under article 72 is discretionary and it overrides all laws, rules and regulations in force.
  5. Delay by itself does not entail the person under sentence of death to request for commutation of a sentence into life imprisonment. It is against the victim’s interest.
  6. Delay in the execution of a death sentence must not be a ground for commutation because the crime committed by the accused is heinous.
  7. The judiciary should not decide if an unreasonable delay is apparent. The matter should be referred back to the executive.
  8. The death-row convicts were not kept under solitary confinement. They were statutorily segregated for safety purposes.
  9. The cases, on which various courts have prescribed the death penalty to the death-row convicts at present, were not held to be per incuriam by any court.
  10. There were no procedural lapses involved. 

FINDINGS

On the basis of the facts and the arguments advanced from both the parties, the court held the following –

  1. The power of the President and the Governor to grant pardon is distinct, absolute and unfettered in nature. This power to grant pardon is not limited to death sentence cases.
  2. The executive orders regarding the grant of pardon are under limited judicial review with only the manner of exercise of executive power being under judicial review.
  3. Long undue delay in the execution of a death sentence entitles the death-row convict to approach the court under article 32. Long undue delay causes adverse physical conditions and psychological stresses on the death-row convict.
  4. Article 21 of the Constitution extends to the stage of execution of the sentence and undue, inordinate and unreasonable delay in execution of death sentence attribute to torture which violates Article 21. 
  5. Insanity is a relevant supervening factor for consideration and the person declared insane cannot be executed under article 21.
  6. Solitary confinement is not sanctioned by Section 30 of the Prisons Act for death-row convicts. It would amount to infliction of “additional and separate” punishment not authorized by law. 
  7. The contention by the petitioners that the judgements on which the court relied have been held per incuriam does not hold any ground. These judgements were clarified and they were not applied in some special cases.

REASONING

The court gave the following reasons for its decision –

  1. The power of the President and the governor under article 72 and article 161 respectively is a constitutional duty. It is neither a matter of grace nor a matter of privilege. 
  2. The court has limited judicial review powers because there’s a presumption that the executive works with an application of mind and it is irrelevant to lay down specific guidelines.
  3. The manner of exercise of executive orders is subject to judicial review to ensure that the constitutional authorities consider all the relevant materials before concluding.
  4. The right of the convicts under article 21 should be considered along with the right of the victims.
  5. The procedure prescribed by law, which deprives a person of his life and liberty must be just, fair and reasonable.
  6. The death-row convicts in the present case have approached the court as a victim of the violation of guaranteed fundamental rights under the Constitution seeking commutation of sentence.
  7. All the cases of capital punishment fall under the rarest of rare case. Thus, there cannot be a further distinction between the convicts.
  8. No decision was held per-incuriam. Rather they were clarified and distinguished from that case.

CRITICAL ANALYSIS

This landmark case attempted to ‘humanise’ capital punishment. Before this judgement, the process related to infliction of capital punishment after it has been announced by the Supreme Court was entirely under the executive domain. This judgment held that there can be judicial intervention if the executive function is discharged arbitrarily.

This judgement was important since there was no check on the process of mercy petition before. It gives a ray of hope to human rights activist. Even though capital punishment is in itself against humanity, this judgement is a step towards recognizing convicts’ rights. This judgement refused to distinguish between death-row convicts based on the nature of the crime. Thus, it overruled Devender Pal Singh Bhullar’s case.

The executive can no longer delay the mercy petition by giving unreasonable excuses. The honourable court has struck a perfect balance between the victim’s rights and the convict’s rights. The court also did commendable work in maintaining the doctrine of “separation of powers”.

However, despite various positive effects of the judgement, the following are the apprehensions raised by various scholars, legal jurists and lawyers –

  1. There’s an apprehension that the victim’s right might be curtailed by commuting the convict’s punishment. Also, the convict may exploit the procedural lapses and lead to a delay in his mercy petition. Thus, apprehension was on the rise during the Nirbhaya case.
  2. Nick Robinson has rightly said that there are many supreme courts of India. The supreme court has not shown a consistent approach in its judgement. While it upheld the convict’s rights, it has failed to properly recognise the LGBTQ+ community’s rights as a natural human right.
  3. There are only a few countries left where capital punishment is present. India is one of them. It is high time that capital punishment is absolved altogether.
  4. The honourable court, in this case, relied on certain foreign cases as well. However, in various instances, the court has reprimanded the counsels for relying on foreign cases.
  5. We must respect the established constitutional mechanism and delay should not be the sole basis for clemency. Other supervening circumstances should also be taken into account.

CONCLUSION

This landmark judgement has assured the death-row convicts of some rights. The Supreme Court has also framed various guidelines in this judgement. It was just short of providing a time frame within which the executive should dispose of the mercy petition. The court held that insanity and inordinate delay alone can be a ground for clemency.

 However, there has been a huge cry for the abolition of capital punishment altogether. But the Supreme Court, in this case, justified death by hanging as the most humane way of killing someone. Given the circumstances, the Supreme Court and the legislature should contemplate abolishing capital punishment altogether. There is also a need to expand the horizon of human rights in the country. This judgement is the first step towards this. However, there’s a need for more steps to be taken by the court.  

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Case Summary

Rajesh Kumar vs State of UP and Anr.

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This Case Summary is written by Riyaa Jain, a student at Vivekananda Institute of Professional Studies

INTRODUCTION

Due to cultural and religious issues, India has historically been a patriarchal culture. For generations, we have adhered to the traditional convention that women are inferior to males in all aspects of life. In this recent decision, the Supreme Court’s Three-Judge Bench modified the Supreme Court’s much-discussed orders issued last year in Rajesh Sharma and ors. v. State of U.P. and Anr. The Supreme Court has now changed the orders, ruling that the creation of a third agency and the powers it was given were illegal. The central issue in the appeal was the need to curb the claimed inclination of women who file a complaint under Section 498A to enlist the help of all family members in resolving matrimonial disputes.

BACKGROUND

In the decade of 1980, dowry deaths rose at an alarming rate in India. The Indian Penal Code (I.P.C.), 1860, was amended by the Criminal Law (2nd Amendment) Act, 1983, and the new section 498A under Chapter XX-A, “Of Cruelty By Husband Or Relatives Of Husband,” was inserted on the 26th of December, 1983, to facilitate rapid intervention by the state and protect young women who were unable to meet the unlawful demands of their in-laws. The amendment centred on dowry killings and incidences of in-law brutality toward married women. To reinforce this provision, subsequent adjustments to the Code of Criminal Procedure (Cr.P.C.) of 1973 and the Indian Evidence Act of 1872 were made by the same alteration.

 

FACTS OF THE CASE

Dowry has been the real menace in Indian society. Rajesh Sharma and Sneha Sharma got married on 28th November 2012 and father of Sneha Sharma gave the appellant dowry to his fullest capacity. But appellants were not happy with the amount of dowry and they started abusing and harassing the complainant. She was daily beaten and exploited by her husband. They demanded from her dowry worth Rs 3,00,000 and a car which could not be arranged by the family. On 10th November, 2013 the plaintiff was dropped off at her matrimonial home by the appellant. Later, she got pregnant and had undergone immense pain due to which her pregnancy was terminated. The main argument advanced in favour of this appeal is that the tendency to involve all family members in resolving a matrimonial conflict must be curtailed. Allegations against all of the husband’s relatives cannot be taken at face value because, in most cases, only the husband or, at best, his parents are accused of demanding dowry or causing maltreatment.

ISSUES OF THE CASE

1. Throughout history, women have been mistreated and subjugated. At this point, they need to be more empowered in order to achieve social equality and national success.

2. The issue, in this case, was whether the family of the accused be also detained in the act and how to save the innocents.

3. The ruling has been challenged on a number of grounds, including that the Supreme Court overstepped its bounds in legislating. As a result, the central question before the Court in the case was whether the Court in Rajesh Sharma could have issued such directives based on the technique of interpretation.

CONTENTIONS FROM RESPONDENT

The respondent’s counsel argues that there is a growing trend to exploit the provision to enlist the support of everyone in the family, including ageing parents, younger siblings, and grandparents predicated on speculative and exaggerated claims, and uncles without any physical or mental ailment being documented injuries or property damage. Innocent family members, especially women and older persons, are sometimes harassed and even arrested as a result of this. This could jeopardize any chance of a relationship reconciling and reuniting. The Petitioners also asked for an unified policy of filing FIRs, arresting suspects, and issuing bail in situations involving Section 498A of the IPC, i.e., to immediately file a FIR on an allegation of cruelty and harassment by married women under the IPC. The Petitioners’ main argument in the case was that the social purpose of Section 498A of the IPC was being lost as the rigour of the provision was diluted and the offence was effectively made bailable due to various qualifications and restrictions imposed by various decisions of this Court, including its recent decision in the case of Rajesh Sharma and others.

 

FINDINGS

The factors neglected by SUPREME COURT are:

1. Low filling rate: Many cases of domestic violence and dowry do not even make it to court, according to reports. There are various causes for this, including dependent women, a lack of family support, and a low literacy rate, among others.

2. Unfruitful civil society interruption: We’ve noticed that dismantling civil society isn’t always beneficial. They may establish a parallel court system, which might be detrimental. Consider the recent case of cow vigilantes.

JUDGEMENT

The Three-Judge Bench of the Supreme Court headed by Chief Justice Dipak Mishra while holding that Supreme Court’s directions pertaining to Family Welfare Committee and its constitution by the District Legal Services Authority and the power conferred on the Committee is impermissible made the following notable observations in the case:

1. That in the instance of Rajesh Sharma, a third agency has been introduced that has nothing to do with the Code, and that aside from that, the Committees have been given the authority to propose a report without which no arrest may be undertaken. The order to settle a dispute after it has been filed is not a legal expression. When a settlement is reached, both parties may submit a petition under Section 482 CrPC, which the High Court may dismiss based on the petition’s merits.

2. In support of a fundamental right, the Court has issued instructions in the absence of law in a number of cases, according to the Court. However, because there are statutory rules and decisions in the field, the directions pertaining to the formation of a Committee and the delegation of authority to the said Committee are incorrect.

3. That though adequate conditions must be imposed when an application for bail is considered, the recovery of disputed dowry items may not be a cause for denying an application for bail under Section 498A of the IPC.

4. The Supreme Court has also ordered that each state’s Director General of Police ensure that investigating officers in charge of cases involving violations under Section 498A of the IPC receive thorough training in the principles outlined by this Court regarding arrest.

ANALYSIS

The analysis made by the Court of the National Crime Records Bureau data is quite questionable.  According to NCRB statistics, 10.56 percent of cases filed under Section 498A in 2005 were ultimately deemed false due to a factual or legal error. According to the NCRB, the rate was dropped to 9.32 percent in 2009. The Court also remarked on the low conviction rate in Section 498A cases. There is a case to be made that India’s general conviction rate is extremely low for all types of crimes, not just those under Section 498A. As a result, a low conviction rate should not be regarded as a misuse of the law. Inadequate investigation, giving the accused the benefit of the doubt, reconciliation between the spouses, and other factors could all contribute to the increased acquittal percentage. Furthermore, the judgement began by implying that the guidelines would be intended to prevent the arrest of the accused husband’s innocent, elderly, and non-Indian dwelling relatives. This was left out, and the umbrella of protection was extended to all of the defendants, including the husband. This greatly diminishes the merit of the said decision, which has been dubbed “an exercise in male bonding” by several groups. To protect the husband’s unknowing relatives from being harassed by Section 498A, the Court may have established clear instructions prohibiting the arrest of such people alone. The Family Welfare Committees may have been given the authority to look into the case only in relation to other accused people, not the main suspect. By subjecting the primary accused, the husband, to the strict provisions of Section 498A, a balance could have been struck between protecting the complainant’s rights and preventing false implication of the husband’s relatives in the case by making their arrest subject to the Family Welfare Committee’s report.

CONCLUSION

In this case, the Court gave more impetus to the rights of the accused husband and his relatives, than those of the complainant woman. The fact exists that women have been discriminated against and continue to be so. For good reason, legislation aimed at providing better legal protection to these people against gender-specific offences are in place. Despite modernisation and “woman development,” no major progress has been made in reducing crimes against women. Women have the right to life under Article 21 of the Constitution and the right to equality under Article 15 of the Constitution, thanks to laws like S. 498A. Discrimination in one of its most basic forms is denying a given sex the legal protection it requires.

The possibility of misuse is a regrettable but all-too-common side effect of enforcing a law. Many legal provisions are utilised to harass innocent persons, and S. 498A is no exception. However, the extent of its misuse does not outweigh the positive changes it has brought about in society. The instructions given in this case will only act as roadblocks to Section 498A’s appropriate execution. Women’s rights activists and legal experts across the country are anxiously awaiting the Supreme Court of India’s judicial review of this decision.

 

 

Case Summary

Abhilasha v. Parkash [2020 SCC Online SC 736]

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This Case Summary is written by Mayank rathor, a student at New Law College, Pune

Table Of Content

  • Introduction and background
  • Fact of case
  • Argument
  • Appellate argument
  • Respondent argument 
  • Issue
  • Case laws referred by the supreme court
  • Judgment
  • Critical analysis of the judgment
  • Conclusion

INTRODUCTION AND BACKGROUND

The law of maintenance has its own importance. According to general and social concept of maintenance, it is the duty of man to maintain his entire family. In legal sense maintenance is the amount which is paid by a man to his dependent wife, children or parents to maintain themselves. 

Section 3( b) of the Hindu Adoption and Maintenance act defines maintenance ,1956. The concept of maintenance is not only recognised by all the personal law but also by the code of criminal procedure, 1973. However, the applicability of the

maintenance under personal law refers to the people belonging to that particular religion while a plea for maintenance under criminal procedure code, 1973 can be filled by the person irrespective of the caste, creed and religion. 

Abhilasha v. Parkash , is a appeal decided by the 3 judge bench of supreme Court, consisting of Hon’ble justice Ashok Bhushan, R. Subhash Reddy and M. r. shah. 

In the present case, a situation is arise whether the court can exercised the jurisdiction under section 20(3) of the Hindu Adoption and Maintenance act, 1956.when a maintenance application filed under section 125 of Cr.P.C. The court give the view that an unmarried hindu daughter can claim maintenance from her father till she married relying on section 20(3) of the Hindu Adoption and Maintenance act, 1956 provided she pleads and proves that she is unable to maintain herself and nor under section 125 of Cr.P.C. .

Whether the unmarried major daughter claim maintain under section 125 of  Cr.P.C. although she is not suffering from any physical or mental abnormality or injury. 

Fact of Case

An application of maintenance filed by the mother of the appellant under section on 125 of  Cr.P.C. on behalf of herself, her two sons and the appellant ( daughter) against her husband (Parkash), claiming maintenance for herself and her three children. The learned judiciary magistrate of first class dismissed the application filed under section 125 of Cr.P.C. against appellant mother and her two brothers, but allowed the same for appellant for grant of maintenance till she attains the age of majority. Against this judgment, all the four applicants filled a criminal revision before the court of Sessions judge and the same was dismissed by the additional session judge with only modification that appellant was entitled to receive maintenance till 26 April 2005 instead of 7 February 2005,which was the date when she attain majority. Challenging the order of Sessions judge as well the judicial magistrate, an application under section 482 Cr.P.C. was filled before the high court by all the applicants, the same was dismissed by the high court. Aggrieved from the order passed by the high court, an appeal was filed by the appellant (Abhilasha) who is the daughter of respondent. 

Appellant’s Argument

The appellant in the supreme Court, argued that even though the appellant had attained majority on 26 April 2005 , but since she is unmarried, she is entitled to claim maintenance from her father. Learned senior counsel contends thar high court committed error in dismissing the application fiked under section 482 of Cr.P.C. of the appellant on wrong premise that since appellant had attained majority and is not suffering from any physical or mental abnormality, she is not entitled for any maintenance. Learned senior counsel relied on provision of section 20 of the Hindu Adoption And Maintenance act, 1956 and submits that as per section 20 obligation of a person to maintain his daughter, who is unmarried extends till she is married. Learned senior counsel relies on judgment of this Court in Jagdish Jugtawat Vs. Manju Lata and Others in support of her submission. She submits that High Court committed error in taking a contrary view to the above judgment of this Court. Ms. Learned senior counsel submits that appellant is still unemployed, hence, she is entitled to claim maintenance from her father.

Respondent’s Argument

The counsel for the respondent agree with the submission of the learned senior counsel for the appellant contends that Courts below have rightly confined the claim of the maintenance of the appellant till she attains majority on 26.04.2005. It is submitted that as per Section 125 Cr.P.C. entitlement to claim maintenance by daughter, who has attained majority is confined to case where the person by reason of any physical or mental abnormality or injury unable to maintain herself. Revisional Court has returned a finding that there is no case that appellant is by reason of any physical or mental abnormality or injury is unable to maintain herself. It is submitted that High Court has rightly dismissed the application filed under Section 482 Cr.P.C. of the appellant since no case was made out to interfere in orders passed by the Judicial Magistrate and learned Revisional Court in exercise of jurisdiction under Section 482 Cr.P.C.

Issues

  1. Whether the appellant, who although had attained majority and is still unmarried is entitled to claim maintenance from her father in proceedings under Section 125 Cr.P.C. although she is not suffering from any physical or mental abnormality/injury? 
  2. Whether the orders passed by learned Judicial Magistrate as well as learned Revisional Court limiting the claim of the appellant to claim maintenance till she attains majority on 26.04.2005 deserves to be set aside with direction to the respondent No.1 to continue to give maintenance even after 26.04.2005 till the appellant remains unmarried? 

Case laws referred by the supreme Court

  • A number of cases were referred by the supreme Court in order to deliver this judgment. Reliance was placed on precedent to understand the scope and ambit of section 488 of Cr.P.C., 1898, section 20 of Hindu Marriage And Maintenance Act, 1956 and section 125 of Cr.P.C., 1972.
  • The Court referred to the case of Nanak Chand v. Chandra kishore Aggarwal and Others, the Court held that there is no inconsistency between section 488 of Cr.P.C. and the Hindu Adoption and Maintenance act and both can stand together. This Court further held that section 488 Cr.P.C. and the Hindu Adoption and Maintenance act and both can stand together. This Court further held that section 488 of Cr.P.C. provides a summary remedy and is applicable to alll persons belonging to all religion and has no relationship with the personal law of the parties. 
  • Next case referred by the Court is Ram Singh v. State, Allahabad high court took the view that section 18 of Hindu Adoption and Minority act, 1956 cannot be substitute for section 488 of Cr.P.C. , 1898. Court observe as follows
  • “There is nothing in the Hindu Adoptions and Maintenance Act to suggest expressly or by necessary implication that the Act is intended to be a substitute for the provisions of Section 488 Cr.P.C. In fact the provisions of Section 18 of the Act cannot be a substitute for Section 488 Cr.P.C.”
  • Next case referred by the Court is Nalini Ranjan v. Kiran Rani, Patna high court held that section 488 of Cr.P.C. provided a separate remedy and section 488 of Cr.P.C. covered the civil liability of an husband under the personal law. 
  • Next case referred by the court is Mahabir Agarwalla v. Gita Roy, . Court has made the following observation. 

“An alternative but not inconsistent summary remedy was provided by section 488 of the Cr.P.C.not only to the Hindu wife but generally to wives irrespective of religion for recovery of maintenance from the  husband. The two remedies were, however, not co-extensive.”

  • Next case discussed by the Court is Jagadish Jugtawat v. Manju and other. In this case, the family Court allowed maintenance for minor girl till she married under section 20(3) of the Hindu Adoption and Maintenance act, 1956. The relevant portion of the judgment of the high court os quoted here

“ it cannot be said that the order impugned runs counter to the law laid down by the Hon’ble Supreme Court, the provisions of section 125 CrPC are applicable irrespective of the personal law and it does not make any distinction whether the daughter claiming maintenance is a Hindu or a Muslim. However, taking an overall view of the matter, I, with all respect to the Hon’ble Court, am of the candid view that the provisions require literal interpretation and a daughter would cease to have the benefit of the provisions under section 125 CrPC on attaining majority, though she would be entitled to claim the benefits further under the statute/personal law. But the Court is not inclined to interfere, as the order does not result in miscarriage of justice, rather interfering with the order would create great inconvenience to Respondent 3 as she would be forced to file another petition under sub-section (3) of section 20 of the Act of 1956 for further maintenance etc. Thus, in order to  avoid multiplicity of litigations, the order impugned does not warrant interference.”

Judgment

The Supreme Court after listening to both sides of the story and examining the witnesses came to the conclusion as to the first issue that the right of unmarried daughter under section 20 to claim maintenance from her father when she is unable to maintain herself is absolute and the right given to unmarried daughter under section 20 is right granted under personal law, which can very well be enforced by her against her father, unmarried daughter is clearly entitled from maintenance from her father till she is married even though she has become major, which is statutory right recognised by section 20(3) and can be enforced by unmarried daughter in accordance with law.

The court held in related to second issue that the judicial magistrate while deciding proceedings under section 125 Cr.P.C. could not have exercised the jurisdiction under section 20(3) of act, 1956 and the submission of the appellant cannot be accepted that the court below should have allowed the application for maintenance even though she has become major. We do not find any infirmity in the order of the judicial magistrate first class as well as learned addition magistrate in not granting maintenance to appellant who has become major. Further the court accept the submission of the learned counsel for the appellant that as preposition of law, an unmarried hindu daughter can claim maintenance from her father till  is married relying on section 20(3) of the act, 1956, provided she pleads and prove that she is unable to maintain herself . 

Critical analysis of judgment

The court decision under this case is appropriate because, the application made by appellant counsel under section 125 of Cr.P.C which provide maintenance for daughter till she attained majority and also after majority if she is mentally or physical incapable of maintain herself. Section 20(3) have no Overriding effect over section 125 . Both are exist together. The decision make it clear that under which court the person Institute a suit for maintenance according to its need and convenience.

The case made it clear in the suit of maintenance that 

  • If the parties to suit belong to city or town whose population exceeds one million then they must filed case in family court who has  jurisdiction to decide a case under Section 125 Cr.P.C. as well as the suit under Section 20 of Hindu Adoption amd Maintenance Act, 1956, in such case , Family Court can exercise jurisdiction under both the Acts and in an appropriate case can grant maintenance to unmarried daughter even though she has attained the age of majority. 
  • If there is no family court, proceedings under section 125 of Cr.P.C. shall have to be before the magistrate of the first class
  •  If Family Court is not established, a suit or proceedings for maintenance including the proceedings under Section 20 of the Act, 1956 shall only be before the District Court or any subordinate Civil Court.

Conclusion

 A Hindu is under a legal obligation to maintain his parents, his wife, his unmarried daughters, and his minor child whether he possesses any property or not. If a person is healthy and able – bodies ,he must be held you have means to support his wife, children and parents The obligation to maintain these relations is personal in character and arises from the  Very existence of the relation between the parties. The purpose of Section 125 Cr.P.C.  is to provide immediate relief through summary proceedings, whereas under Section 20 read with Section 3(b) of Act, 1956 contains larger right, which need to be decided by a Civil Court. Decision of judiciary magistrate of first class for not providing maintenance to appellant under section 20 of Hindu adoption and maintenance act was rightly decided. Every Court have to decide the case with in their sphere of power, so that power of different Court not overlapped and not cause miscarriage to justice system. However in the present case  justice be served by giving liberty to the appellant to  file the suit for maintenance under Section 20(3) of the Hindu Adoption and Maintenance Act, 1956, if so advised, for claiming any maintenance against her father.

https://lawmentor.in/2022/03/14/abhilasha-v-parkash-2020-scc-online-sc-736/

Case Summary

Indian Young Lawyers Association v. State of Kerala

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This Case Summary is written by Pratyaksha Roy, a student at Army Institute of Law, Mohali

INTRODUCTION

The “Sabarimala Case” i.e., Indian Young Lawyers Association v. State of Kerala, is a landmark judgement pronouncing the exclusion of women in the age group of 10 to 50 years from worshipping in the Sabarimala temple as unconstitutional. The Constitutional bench struck down the age-old discriminatory practice by lifting the legal ban prohibiting women of menstruating age from worshipping in the famous Hindu temple.

BACKGROUND OF THE CASE

The Writ Petition in the present case was filed before the Supreme Court under Article 32 of the Constitution of India on behalf of six women, members of the Indian Young Lawyers’ Association, who sought the Court’s intervention to dismantle a ban on the entry of women aged 10 to 50 years into the Sabarimala temple on the ground that it violated their fundamental rights, particularly Articles 14, 15, 19, 21 and 25.

The case was taken up by a 5-judge bench compromising of the CJI Dipak Misra, Justices A.M. Khanwilkar, R.F. Nariman, D.Y. Chandrachud and Indu Malhotra.

This legal ban was initially in force by way of subordinate legislation in the form of successive notifications issued in 1955 and 1956, but was eventually given judicial recognition and protection as a “usage” by the Kerala High Court in the case of S. Mahendran v. Secretary, Travancore Devaswom Board. 

JUDGEMENT

In the landmark judgement, the Bench unanimously (J. Indu Malhotra dissenting) decided in separate but concurring judgements to strike down the archaic exclusionary practice debarring women of procreative age from worshipping in the Sabarimala temple and declared it unconstitutional in nature and thereby, allowed the entry of women, irrespective of their age, into the temple on the grounds that the ban violated their fundamental right of Freedom of Religion guaranteed under Article 25 of the Constitution. 

Also, the provision restricting entry of women in the state legislation i.e., Rule 3(b) of the Kerala Hindu Places of Public Worship Act, 1965 was declared ultra vires to Sections 3 and 4 of its parent Act, and was therefore, struck down and deemed unconstitutional. 

REASONING

The Respondents in the present case had submitted three major reasons in order to justify the continued exclusion of women from worshipping in the temple:

  • On the basis of menstruation-related pollution-

The exclusion of women in the present case was based upon a religious custom known as Vratham, which is a 41-day period of penance, involving the observance of purity of thought, word and deed by the devotee.

According to the respondents, women could not observe Vratham on the account of their monthly bleeding, which, according to them, is a period of bodily uncleanliness, and since no devotee was allowed to worship without having observed this ritual, therefore, menstruating women were not allowed to enter the temple and offer their prayers to the deity.

It is was held by the court that women too, could observe Vratham.

Menstruation did not mean that there was existence of sexual thoughts or presence of sexual activity; in fact, menstruation can be referred as the sole source of procreation.

  • On the basis of the celibate nature of the deity-

The deity residing in the Temple, i.e., Lord Ayyappa is in the form of Naishtika Brahmacharya, that means, he has taken the vow of celibacy.

Shri Swami Sivananda defines the true meaning of being a celibate or brahmacharya, which is, self-restraint, particularly, mastery or perfect control over the sexual organ or freedom from lust in thought, word and deed.

Therefore, merely being in the presence of women does not mean that the vow of celibacy will be broken, it would rather be said to be broken if the individual even so much as indulges himself in profane ideations, either in the presence or absence of women. The emphasis is on the restraint by the Brahmachari, rather than on the removal of all the temptations.

  • On the basis of the trek on the holy hills of Sabarimala-

It was argued that women cannot partake on the trek as it was strenuous in nature. To which, the Court rightfully enunciated that such a belief was “deeply rooted in a stereotypical (and constitutionally flawed) notion that women are the “weaker” sex.” Such an approach was therefore contrary to the constitutional guarantee of equality and dignity to women.

Regardless of the rationale that had been used for long to justify the interminable subjugation, oppression and exclusion of women devotees of Sabarimala from being able to freely practice their religious autonomy, it can inviolably be extrapolated that the practice was founded on beliefs surrounding misogyny, patriarchy and an overall perception of females being the weaker sex. 

ANALYSIS 

The following judgement shall be assessed thoroughly on three major parameters:

  1. Religious Denomination-

Article 26 of the Indian Constitution deals with the rights guaranteed to the religious denominations in our country. In order for a group or set of individuals to be called a ‘religious denomination’, it must satisfy three requirements

  • It must be collection of individuals who have a system of belief or doctrine which they regard as conducive to their spiritual well-being-

In order to constitute a religious denomination, there must be new methodology provided for a religion. It was held that the mere observance of certain distinctive practices, even though they might have been in usage from a long time, did not make it a distinct religion on that account. Since there was nothing on record to show that the devotees of Lord Ayyappa had any common religious tenets peculiar to themselves, which they regarded as conducive to their spiritual well-being, other than those which are common to the Hindu religion. Therefore, the devotees of Lord Ayyappa were pronounced to be Hindus and not a separate religious denomination.

  • It must be a common organisation-

The temple was dedicated to the public at large and represented truly, the plural character of society. Everyone, irrespective of religious belief, was allowed to worship the deity. The absence of a common spiritual organisation, which is a necessary element to constitute a religious denomination, was absent in the present case.

  • Designation of a distinctive name-

Although the respondents had tried to establish that the pilgrims coming to visit the Sabarimala temple, being devotees of Lord Ayyappa, were addressed as ‘Ayyappans’ and, thereby, the third condition in order to constitute a religious denomination was satisfied. However, this argument was outrightly rejected by the Court on the grounds that there was no officially recognized group called ‘Ayyappans’.

Since the collective of individuals were unable to satisfy the judicially-enunciated requirements to be declared as a religious denomination, therefore the devotees of Lord Ayyappa were held, as per majority, not to be a separate religious denomination and were thereby divested of their right to legally exclude women between the ages of 10 to 50 years from worshipping in the temple. Further, it was held that the temple’s denominational right to manage its own internal affairs, under Article 26(b), was now subject to the State’s social reform mandate under Article 25(2)(b). 

  1. Essential Practice-

Over the years, the Supreme Court has developed multiple criteria against which it decides what practices are ‘essential’ to various religions. In the Sabarimala temple case, the Court went on to declare that the exclusion of women was a non-essential practice based on the following grounds: 

  • For the want of textual and scriptural evidence in support of such a contention-

The unavailability of any texts, scriptures and doctrines acknowledging the exclusionary practice of prohibiting women from entering the temple certainly acted as an impediment to the court in the evaluation of the veracity of the exclusionary practice against such texts, scriptures, and doctrines. The Court thereby proceeded to examine whether the regulation or abolition of the practice in question would alter the ‘fundamental character’ of the religion itself.

Justices Dipak Misra and A.M. Khanwilkar very profoundly deduced that the exclusion of women from sacred spaces was not a fundamental part of Hinduism and held:

“In no scenario, it can be said that exclusion of women of any age group could be regarded as an essential practice of Hindu religion and on the contrary, it is an essential part of the Hindu religion to allow Hindu women to enter into a temple as devotees and followers of Hindu religion and offer their prayers to the deity.”

  • Such exclusion of women was an altered practice that had changed with time-

Another indispensable criterion involved in discerning the essentiality of the practice was ascertaining whether the practice was homogenous i.e., whether it was practiced by the entire religious community with perpetuity. However, in the present case it was admitted by the Respondents that “prior to the passing of the Notification in 1950, women of all age groups used to visit the Sabarimala Temple for the first rice feeding ceremony of their children.”

For any practice to be conceived as central to the pursuit of a religion, it must first be established that the said practice is unalterable as well as popular in nature; it is essential that both criteria are fulfilled. With respect to the restriction on the entry of women into places of worship, even though the practice was widespread and popular, it was dismissed as unessential since it had been altered. 

  • The practice violated the fundamental right of all women to practice religion-

Since menstruation was a process strictly exclusive to the female gender, thus discriminating on the basis of menstruation amounted to discrimination against all women thereby violating their fundamental right to practice religion. Women of any age group had as much right as men to visit and enter a temple in order to freely practice a religion, as guaranteed under Article 25(1).

It was against the basic constitutional values of dignity, liberty and equality-

While determining the essentiality of a practice, the courts examined whether by granting constitutional protection to the practice in question and by affixing it with the label of an ‘essential’ practice to the concerned religion, the Indian state’s vision of a society based on principles of equality, liberty and fraternity would be compromised. This further led to a debate on ‘Constitutional Morality’, which shall be discussed in the next point.

  1. Constitutional Morality-

The term ‘morality’ occurring in Article 25(1) of the Constitution in the present case was taken to mean ‘Constitutional Morality’.

Restricting the entry of women into a temple either on the ground that they menstruate or that their entry would inevitably cause deviation to the celibacy of the temple’s deity, violates the “internal morality” of the Constitution as it is a threat to the notion of equality and dignity underscored by the Constitution. Such a restriction can only be valid in a society where women are seen as innately lesser beings, who should not enjoy dignified lives. The Constitution lifts us away from such a society and pushes toward an equality that is both formal and substantive.

Moreover, one of the laudable findings made by Justice Chandrachud in the present case, is on ‘untouchability’. Adhering to usage in Article 17, untouchability of ‘all forms’, the judge deviated from the previous Supreme Court judgments that confined the concept of untouchability to caste-based exclusions and rather identified it with the notions of “purity and pollution” as the sustaining force of untouchability and found it to be against the tenets of dignity and constitutional morality. He held that Article 17 is a powerful guarantee against exclusion and cannot be read to exclude women against whom social exclusion of the worst kind had been practiced and legitimized on notions of “purity and pollution”.

CONCLUSION

The Sabarimala judgment was a watershed moment in the history of affirmative action as it greased the wheels of social integration and breathed life into feminist jurisprudence. The Supreme Court adopted a reformist and interventionist approach by upholding human dignity and equal entitlement to worship for all individuals.

Case Summary

INDIAN YOUNG LAWYEWR ASSOCIATION ORS. V. THE STATE OF KERALA ORS [W. P (CIVIL) 373 OF 2006]

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This Case Summary is written by Anisha Ghosh, a student at Adamas University, Kolkata

“Worshiping goddess is necessary but giving equal treatment to women is mandatory”

SYNOPSIS

Although we live in 21st century but unfortunately our society’s thinking stands in 19th century. As a modern generation of this country we know that thinking has become more scientific and logical so we should not believing in myth. Society need to accept custom in a logical way. Through this case we can see that how court stands for reasonableness instead of myth and enlightened about to identifying which custom is morally right. We do have a constitution which ensures certain rights and duties so we cannot violets them because of some certain illogical customs. In ancient time India has always been a male dominating society now also in some rural area of India we witness a male dominating society. It is not about who dominate the society but it is all about for getting equal rights and equal treatment. 

BACK GROUND

 Constitution of India believes in gender equality, secularism and freedom but the harsh reality is women are always the victim of such customs and traditions. In India there is a temple, which is known as Sabrimala temple and it is situated at Kerala’s Pathanamthitta district. This temple is devoted to Lord Ayyappa where south Indian people worship him as a god of growth. They believed that prince of Pandalam dynasty was an avatar of Sastha who known as Manikandan and he medicated in the Sabrimala temple after that he known an avatar of lord Ayyappa. Section 4 of the Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965 (for brevity, “the 1965 Act”) ensures that in the age of 10-50 years of age woman are not allow to entry in the temple. This kind of law arose many questions then a case was filed before the court for adjudication.

FACTS OF THE CASE

Lord Ayyappa is a celibacy god. In Sabrimala temple women cannot enter into the temple between the 10-50 years of age. Since ages this prohibitions had been practiced as a custom and usage.  A case was filed in the session court claiming that this custom and usage is unconstitutional and violets article 14 and article 25 of the Indian Constitution. Session court gave verdict that there is no valid reason which can justify this custom and usage and this customs is unconstitutional. In 1990, S Mahendran filed a plea in Kerala High Court seeking a ban on women prohibition of entry to the temple. But, Kerala High Court imposed the age-old restriction on women of a certain age-group entering the temple. On August 4, 2006, the Indian Young Lawyers Association filed a plea in the Supreme Court seeking to confirm entry of female devotees between the age group of 10 to 50 at the Lord Ayyappa Temple at Sabarimala.  

ISSUES

  1. Whether the practice of excluding women is an “essential religious practice” under Article 25 and Whether Ayyappa temple has a denomination character?

2. Whether Rule 3 of the Kerala Hindu Places of Public Worship(Authorizing of Entry) based on biological factor women are not allow in the temple violets Articles 14&15(3) of the constitution?

3. Whether Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules,1965 is ultra vires to the provision of part III of the constitution?

CONTENTIONS

 The Petitioner contended, Hindu women are more idealizing than men so if there is any ban on entering into any temple then it would be anti-Hinduism. Puja ceremonies of Sabrimala temple signifies that it does not belong to any separate religion. It does not have any separate administration but this administration is administered under Cochin Hindu Religion Institution Act, 1950. Section (3b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Act 1965 has uses an expression that is ‘ at any time’. This expression does not properly expressing about prohibition on women’s entry but if any time specifically mentioned then that myth will continuing as a custom and usage so this Section (3b) is violated towards article 25(2) (b) of the constitution. In now days there are several customs exist which might not be right so court should take cognizance against that customs. If the rituals of Sabrimala does not come under ambit of religious denomination then it would come under ambit of article 12. If state would be prohibited from denying equal protection of law and state cannot discriminate on the basis of sex then it would be come under article 14 and 15. Article 51A(e) ensures ‘ dignity of women and it is an essential part of constitutional morality. Sabrimala is a denomination because rituals and customs of Sabrimala only protect under article 26(b).Women cannot practices Vrutham for 41 days because women would not abstinence from sexual activities and imposing restriction on women cannot be an essential aspect of Hindu religion. This kind of stereotype thinking stigmatizing women as a weaker character than men. 

In responses, the respondent contended that Lora Ayyappa is known as ‘hyper masculine God’ because according to our mythological book lord Ayyapppa born out from the two male divine gods, those are lord Shiva and Mohini but Mohini is a female form of god Vishnu. For doing worship of lord Ayyappa devotees need to follow ‘Vrutham’. This ritual is for spiritual purification. For practicing Vrutham, devotees need to be follow certain rules those are; wearing black cloths and not allow to cutting nails, cutting hair, shaving off facial hair. They must not to touch any woman including their wives and daughters for 41 days.  In the case of woman in between of 41 days they will have menstruation cycle then they will not follow it and it will be disrespectful for lord Ayyappa. This rule is not only applicable to woman, it is also applicable to men and this rule is not gender biased. This rule is not discriminatory in nature because it’s allows to entry every section of society including women but there are 2 criteria firstly, those who have not attain their puberty and secondly, those who are in menopause .According to the hindu customs when women are during their menstruation cycle they are not allowed to worship and also they cannot go to the temple. Under section 3(b) of Kerala Hindu Places of Worship (Authorization of Entry) Rules, 1965 have some restrictions and if those restrictions are allowed to operate only for 60 days then this section will not violets article 14,15 and 17 of the constitution and also will not fall under the purview of article 25 and 26 of constitution. 

FINDINGS

 The notions of public order, morality and health cannot be used as a device to limit the freedom to freely practice religion and by denying women religious rights to enter into the Sabrimala temple, it discriminatory under Article 25.Thinking that women are impure and this kind of mentality build a barrier of untouchability so it also violets Article 17.  Section 3 and Section 4(1) of the 1965 Act clearly specify that custom and usage must make space to the rights of all sections and classes of Hindus who wants to offer prayers at places of public worship and any interpretation would contrary to the purpose of 1965 act. Rule 3(b) of the 1965 Rules is ultra vires to the Article 15(1). According to former J. Indu Malhotra Sabrimala temple is a religious denomination so it is not violates Article 25.

REASONING

In a 4:1 majority the court held that not to allow women in the temple is violated under Article 25(1) because our constitution gave equal right to everyone to practices their religion. Article 14  violated because a certain age group of women are ban to entry into the temple and rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965 was ultra-virus to constitutional being violated of Article 25(1) and Article 12(1) of the Constitution of India.

DISPOSITION

In this case the Supreme Court of India allowed the writ petition and removed the ban on women entering into temple and also declared rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965 unconstitutional.

CRITICALANALYSIS

According to Quran it is clearly mentioned that women are always impure because they have their menstruation cycle and they should not enter into the mosque. According to Bible menstruation cycle is a disease and also according to Gita, women have their menstruation cycle because this is curse given by lord Indro so during menstruation cycle women should not be allow to worship. This codified holy books are from ancient period but now we live in 21st century and we know that everything has some reason. Science has told us that without reasoning we should not believe in anything and according to Medical science menstruation cycle is a normal body process it is as normal as having food or water. Without this process a women cannot have a child, it is so important for every women in the world. In the landmark case of Sabrimala, five bench of judges was set up for giving judgement in this case. The judgement was delivered with the 4:1 majority. Unfortunately there was a judge who gave a dissenting opinion and that judge told that we should not interfere in the matter of customs and usage. If we would not interfere in the matter of old customs and usage then how we would remove ill-practice customs. In the previous times judiciary removed unnecessary customs such as triple talaq, dowry and sati. A review petition was filed in the year of 2019 on the basis of that Sabrimala temple is a separate religious denomination but that review petition was rejected. Court only have a power to remove the cruel customs but it is a duty to a every individual to stop this kinds of customs and this is a only path of saving the modern India. It is just a start for removing old customs which is not morally correct and there is a long path to go. 

CONCLUSION

In ancient times,  some rules were set by the society or any other person who was powerful like Brahmans, king at that time. We know very well about Chanakya, one of the best jurist in India. He told about women that ‘‘when women attain their puberty they should be control under her father, when she would be adult then she should be control under her husband and when she would be getting old then she should be control under her son’’. He also told that women should never be set free throughout their lifetime they should always be under the control of a man. After so many decades our society has remain patriarchy society and now also women did not get their equal right as man but for this we cannot only blame the men solely because to some extent there is also fault of women. This discriminatory rituals are still followed by women and then they carry forward to their next generation. After the Sabrimala judgement many women are against this judgement because they also think women are impure at the time of menstruation cycle but according to Medical science menstruation cycle is a natural process and it makes every women complete. We Indians feel proud about our customs and culture and we worship goddess yet we think during menstruation cycle women are not clean and they are impure. According to National Statistical office survey, Kerala has 96.2% literacy rate and if literate peoples in India is believing in such kind of baseless customs then it would be very hard to change people’s mindset in India. Indian judiciary take steps for our society so that we will not blindly believe in any unnecessary customs that will violets our constitutional rights, Customs are only valid till when it will not hurt others rights.

Case Summary

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

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This Case Summary is written by Reetambhar Kumar Das, a student at Adamas University, Barasat, Kolkata

SYNOPSIS 

 “Equality means more than passing laws. The struggle is really won in the hearts and minds of the community where it really counts”- Barbara Gittings. 

Section 377 of Indian Penal Code, 1860 was inserted in order to punish the offence of sodomy, buggery and bestiality. The offence basically consists of carnal intercourse beyond the nature, i.e. any intercourse which is not a penile-vagina intercourse. To punish someone under this Section two ingredients are necessary- 

1. Carnal intercourse 

2. against the order of nature. 

This section also includes any unnatural intercourse with any man, woman or animal. 

The provisions have been challenged before various courts in order to get the section decriminalized as well as the rights of the LGBTQ are recognized.

It is the duty of the State to protect the right and dignity of every person of our society. As we claim our country to be a developing country the society cannot remain unmindful to the theory of homosexuality which is researched by many scholars, biological and psychological science.  

BACKGROUND 

The case originated in the year 2009 when the Delhi High Court, in the case of Naz Foundation v. Govt. of N.C.T of Delhi held Sec 377 to be unconstitutional, in so far as it pertains to consensual sexual conduct between two adults of the same sex. Later in 2014, a two judge bench of the Supreme Court overturned the Delhi High Court decision. When the petition of 2014 was challenged before the three- judge bench in the year 2016 the Supreme Court held that a larger bench must answer the issues raised and thus the case was referred to five bench judges. 

In the year 2016, Navtej Singh Johar who is a renowned dancer filed a writ petition before the Honourable Supreme Court in 2016 seeking recognition of the right to choose sexual partner to be a right under Article 21 of the Indian constitution. Furthermore claiming Sec 377 of Indian Penal Code should be declared unconstitutional as it was violative of Article 14 of the Indian Constitution. 

On 6th September 2018, the judgment was given by a five bench judge bench comprising of CJI (now former) Dipak Misra, Justice R.F. Nariman, Justice D.Y. Chandrachud, Justice A.M Khanwilkar and Justice Indu Malhotra.    

FACT OF THE CASE

A writ petition was filed by a dancer Navtej Singh Johar, who belonged to LGBTQ community. The Bench overruled Suresh kumar Koushal v. Naz Foundation and others (2013) judgment. In this particular case constitutional validity of Sec 377 of IPC was upheld. The Court not only did find that Suresh Koushal failed to recognize how Sec 377 violates fundamental rights, but further stated that it relied on a constitutionally impermissible rationale. 

The issue regarding decriminalizing Sec 377 was first raised by an NGO named Naaz Foundation, which had in 2001 approached the Delhi High Court for decriminalizing sexual act between two consenting adults of the same gender. This 2009 judgment was overturned in 2013 by the Supreme Court. 

The status of identity of the transgender was first luculent in the case of National Legal Services Authority v. Union of India and others. 

ISSUES OF THE CASE

The main issue before the Court was to decriminalizing sec 377 IPC and to recognize the rights of LGBTQ community. 

The issues are categorized as follows- 

1. Whether judgment given in Suresh Kumar Koushal v. Naaz Foundation was proper or not. 

2. Whether sec 377 of IPC violates Art 14 and Art 15 of Indian Constitution or not 

3. Whether Sec 377 is against Right to privacy which is a fundamental right or not. 

CONTENTIONS

The petitioner of the case contented that homosexuality, bisexuality and other sexual orientations are equally natural and reflective of expression of choice and inclination founded on consent of two persons who are eligible in law to express such consent and it is neither a physical nor a mental illness, rather they are natural variations of expression and free thinking process of a person’s autonomy. Hence as a person’s dignity and decisional autonomy is hampered it is a clear violation of Art 21 of Indian Constitution. It is further argued that their growth of personality, relation building endeavour to enter into a live-in relationship or to form an association with a sense of commodity have become a mirage and the essential desires are crippled with violates Art 19 (1) (a) of Indian Constitution. Art 15 of the Indian Constitution is also violated because as the provision forbid discrimination on ground of “Sex” it would also include Sexual orientation of an individual. 

On the other side Union of India submitted that as far as consensual acts of adults in private is left before the Court to decide. The Respondent of the present case has focused on the problem of contracting HIV/AIDS and the percentage of HIV/AIDS is more in homosexual persons than heterosexual persons. The Counsel for the defendant further focused on the shambles of the very institution of marriage and regarding the breakdown of social culture. The counsel further said that the main focus of a State is to protect its citizen from any harm or injuries and since carnal intercourse between two person is offensive and injurious it’s state’s responsibility to put reasonable restrictions to forbid such aberrant human behaviour by means of legislation. 

Hence concluded by saying that Sec 377 is constitutionally valid and it’s not a violation of any individual’s right. 

FINDINGS

The findings in the case is as follows that the Honourable Court has focused more on individual’s right than on the upcoming consequences of decriminalizing homosexuality. As presently there lies no provision or remedy under any law to protect the rights of the homosexuals, we can say the judgment has turned out to be a dead one. 

Article 14 and Article 15 talks of  equality yet we find that even the Court tried to bring the community on equal footing yet they have stood as minority in the society. 

REASONING

The Court held that the Judgment passed in the case of Suresh Koushal case was not proper as the interpretation of the word “against the order of the nature” was misinterpreted. 

The Honourable Court in the case of Navtej Singh Johar held that although the LGBTQ community holds only a minority position in our Indian society yet they too are entitled to enforce their fundamental rights guaranteed under Art 14, 19, 15, 21 of the Indian Constitution. The Court clarified that the act should be consensual between two adults i.e. who is above the age of 18 years and are competent enough to give consent. 

The consent must be free consent, which must be voluntarily and without any coercion. Furthermore the provision of Sec 377 IPC will continue to govern non- consensual sexual acts against adults, all acts of carnal intercourse against minors and acts of bestiality. 

CRITICAL ANALYSIS

 Every coin has 2 sides, likewise the judgment suffers from no defects and gives a legal recognition to the LGBTQ community, yet we cannot overlook the consequences of decriminalizing Sec 377 IPC. This consequence left open the door for bad consequences which would follow in future. 

Firstly the LGBTQ community people wanted not only legal recognition to their rights but also a legislation which would be beneficial to them. The general concept of intimacy was always there within four walls of the room, the only benefit that this judgment gave is to allow the community to speak freely about their rights in the society. But this has not much benefited the community at large as Indian society is far away in accepting such judgment with a happy face. 

Secondly the judgment gave legal permission to have sexual intercourse and to choose sexual partner on its own, but the question lies do we find anywhere in the judgment the concept of socialization. The judgment is silent regarding marriage laws, divorce laws, maintaince laws, and the main thing i.e. custody law. 

Special Marriage Act, 1954, Hindu Marriage Act, 1955, Parsi Marriage and divorce Act, 1936, Indian Divorce Act, 1869 talks about marriage between two heterogeneous persons. The Hindu Adoption and maintaince Act 1956 talks about adoption by a father or a mother. The maintaince under Hindu law talks about maintaince of Husband or wife, Sec 125 Criminal Procedure Code, 1973 talks about maintaince of wife. In India we donot have any law for protecting male from getting sexually harassed in workplace likewise we can least expect homosexuals getting any particular laws for themselves. 

None of the legislation talks about Homosexual person’s right to marry, have children in adoption, maintaince if neglected by either partner, no legislation to protect against illegal demand for dowry, no statue for protecting them from domestic violence or the right to divorce if any dispute arises. 

Thirdly the judgment is silent regarding any kind of reservation for LGBTQ community. Although The Transgender Persons (protection of rights) Bill, 2019 was passed to give right to Transgender person yet there lies no provisions for homosexual persons. It is common scenario that when any organization gets to know about the sexual orientation of a person with same sex he/she will be shown doors at very first instance in order to save the reputation of the organization hence we can get least expectation in getting reservation for homosexual persons. 

Fourthly Sec 377 IPC was enacted to safe children from child abuse and from preventing sexual acts on children. But the Decriminalization of Sec 377 IPC would show path for more child abuse cases. 

Fifthly legalizing anything would mean the State is encouraging that particular act. Legalizing Sec 377 would give a path for selling of one’s body for money and the state would do nothing as this Sec is decriminalized. This act of selling body would increase the chance of having more HIV/STD cases in future. 

Lastly the question of “consent” still remained a grey area as it is very difficult to prove such consent between two adults and hence giving a pathway for more exploitation.  

CONCLUSION 

India has finally taken the step to decriminalize the old British era laws by stating that a person’s right is more important than what society thinks. It is true Indian society would never accept this judgment, yet we would hope for some day when our mentality regarding homosexuals would ultimately change and that day we can say that decriminalizing homosexuality has been worth and homosexuals have actually got their rights. 

Case Summary

RAJESH SHARMA VS STATE OF UP [ 2017 SCC Online SC 821 ]

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This Case Summary is written by Shriya Jain, a student at Vivekananda institute of professional studies, Delhi

INTRODUCTION

Even as we near the end of the twenty-first century, neither the sophisticated Western world nor traditional Asian and African countries can claim to have a gender-just society. Women, the most vulnerable members of the human species, are the architects of civilization, the nucleus of the family, the guardian of the home, the source of inspiration and power for men on all fronts, and it is women who determine the destiny of the human race as the creator of the Universe. The holy bond of marriage has now devolved into a means of accumulating riches, taking on the darkest shape of a societal evil. Dowry is a tradition related with marriage. Dowry has emerged as a social evil , a true plague that has vitiated and harmed family peace, harmony, and progress. It has impacted people from all walks of life, including the wealthy and the destitute. The dowry issue has devastated a lot of families and produced a slew of unhappy households.

BACKGROUND

Section 498-A was enacted in 1983 to safeguard married women from cruelty perpetrated by their husbands or relatives. A three-year sentence as well as a fine has been imposed. The word “cruelty” has been interpreted broadly to encompass inflicting physical or mental injury on a woman’s body or health, as well as harassing her or her relatives in order to persuade them to satisfy any unlawful demand for property or valued security. The Supreme Court decision in Rajesh Sharma vs State of Uttar Pradesh comes out with the judges suggesting various steps to prevent the abuse of Sec 498A. Various feminist NGOs and women social activists have criticised the decision once it was issued.

FACTS OF THE CASE 

In this instant case, the proceedings were initiated when the respondent 2, Sneha Sharma, filed a complaint. On November 28, 2012, she and her husband, Rajesh sharma, here appellant 1, married. Her father provided dowry to the best of his ability, but her husband and his family were dissatisfied with the amount they received. They began assaulting and tormenting her as a result, as alleged by the complainant. They also demanded a dowry of Rs.3,00,000/- and a car, both of which were beyond her family’s means. The complainant was dropped off at her matrimonial residence by appellant No. 1 on November 10, 2013. She was pregnant at the time and had discomfort as a result of her pregnancy, which was terminated. Furthermore, as she indicated, her stridhan was preserved. He requested 50,000 and a gold necklace after retaining stridhan. He  tortured his wife as a result of his displeasure with not obtaining the specified demand. The court summoned him under Sections 498A and 323 IPC based on this memo.

He was declared accountable and found guilty under section 498A, according to the session court. The court admitted sneha’s plea to summon  rest of the accused Vijay Sharma, Jaywati Sharma, Praveen Sharma and Priyanka Sharma i.e her parents in law and the brother and sister of the husband. The appellant then appealed the summons order to the High Court under Section 482 CrPC. Despite the fact that it was sent to mediation, no conclusions were reached. The high court found no cause to intervene with his family’s summons, and the appellants’ plea was dismissed and the issue was now in the hands of the Supreme Court.

ISSUES

The main issue in this case was:

  • Whether the family of rajesh sharma should be held  liable along with him under section 498A?
  • Is there a practice of including all family members in resolving a marriage dispute?
  • How were the provisions of Section 498a mismanaged and misinterpreted in order to incriminate innocent people?
  • And lastly, What are some feasible solutions to the potential of misconception of this section?

CONTENTION

The counsel asserted that there is a rising trend to utilise the provision to ensnare all family, including elderly parents, small children, siblings, grandparents, and uncles, based on imprecise and exaggerated charges without any verifiable proof of bodily or mental harm or impairment. The following data from the Crime Records Bureau (CRB)was cited: According to National Crime Reports, this is the case.In 2005, the Record Bureau handled 58,319 cases.A total of 1,27,560 people were reported under Section 498A of the IPC.There were 6,141 arrests and charges filed.Because of a factual or legal error, it has been deemed false.by refering to various case laws it was argued that the clause was being abused.judicially recognised, and there is a need to take steps to address it.This type of abuse should be avoided. A learned ASG proposed that a preliminary investigation be conducted along the lines of the findings in Lalita Kumari vs. Government of Uttar PradeshOnly with the authorization of the concerned Magistrate might a relative other than the spouse be arrested. Relatives beyond the age of 70 should not be detained. The police’s ability to make immediate arrests must be limited. The court must determine that there is prima facie evidence that the accused has committed an overt and covert conduct before giving authorization. Shri V. Giri, distinguished senior counsel, argued that an arrest for a Section 498A offence should only be made when the Superintendent of Police has given his unequivocal assent. In the case of relatives who live outside India, the matter should only be pursued if the IO is confident that arrest is required for a fair inquiry. The impounding of a passport or the issue of a red corner notice should be avoided in such instances. Counseling should be made a required procedure under Section 14 of the Protection of Women from Domestic Violence Act, 2005, before a case under Section 498A is filed.

JUDGEMENT 

after analysing the history of the problem and taking into consideration the Law Commission’s 243rd Report as well as previous decisions of this Court The court declared that violations of innocent people’s human rights cannot be overlooked. This Court has addressed several safeguards against unjustified arrests or insensitive investigations. Even yet, the issue persists to a large extent. Apart from sensitising the investigative officials and the concerned trial courts, they were of the opinion that involving civil society in the administration of justice may be one of the approaches. It is also vital to make it easier to conclude proceedings where a true settlement has been reached, rather than requiring parties to go to the High Court only for that purpose.

The court established a committee called the family welfare committee in every district  that would hear all dowry cases, giving this body unchecked authority and the ability to act as a justice dispensation system. Every complaint received by the police or the Magistrate under Section 498A must be referred to and investigated by this committee. No arrests will be made unless the committee submits a report to the magistrate indicating that the victim’s justice would be delayed.Members of a committee that acts as a judicial body can be bought and swayed by the accused.

The court also stated that Only an authorised Investigating Officer of the region may examine complaints under Section 498A and any related offences. If a bail application is submitted with at least one clear reason, it will be granted.the Public Prosecutor/complainant is given a day’s notice,As far as feasible, the same can be decided on the same day.further elaborating they emphasized that It may not be necessary for all family members, especially those who live far away, to appear themselves before the court. After observing the aforementioned arrangement for six months, but no later than March 31, 2018, the National Legal Services Authority may provide a report on the necessity for any changes or further directives.

ANALYSIS

The declining acknowledgement and judicial acknowledgment of women’s rights is a fundamental concern in our legal system. The case of Rajesh Sharma vs. State of Uttar Pradesh demonstrates how women’s rights in Indian society are far from being achieved. The decision itself exemplifies the male-dominated Indian court, which forces women to battle for their rights. The Indian court has to be feminised, and men and women’s rights must be protected equally. Rather than addressing the threat of dowry, the court has exacerbated the problem. Women who speak out against such abuse and protest will be afraid to do so for fear of being kicked out of their homes or being labelled as a “disgruntled” wife by the courts. As a result, the courts should reexamine the effect and purpose of legislation and take appropriate action. The judge, instead of looking at the ground truth of the law, has relied on data to reach his determination, which is a really dismal truth in this case that everyone is talking about. The judges refused to admit even once that the law has decreased physical violence and dowry-related offences to a significant level. The judges did not consider the implications of a diluted dowry regimen.

CONCLUSION 

This was a historic case because it not only acknowledged but also tried to establish a system of checks and balances when it came to criminal laws that were being abused by women. A recent case of social action forum for manav adhikar v. union of india, however, overturned the guidelines for the Family Welfare Committee. Despite the fact that the verdict in Rajesh Sharma’s case had no effect, it was nonetheless a paradigm change in the courts’ attitude and discussion. The verdict has prompted the creation of a blueprint for preventative measures that may be debated and investigated by parliament in order to curb dowry law abuse.

Case Summary

Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors. [W.P. (Civil) 373 of 2006]

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

SYNOPSIS

  • The temple of Lord Ayyappa situated in Kerala restricts the entry of women within their menstruating age that are between the age of 10 to 50 years stating that the god is in the form of ” Naishtika Brahmachari’, celibate always.  
  • This restriction of the category of women was justified on the basis of traditional custom which was sanctioned by Rule 3(b), framed by the Government under the authority of the 1965 Kerala Hindu Places of Worship.
  • In the case of “Indian Young Lawyers Association & Ors v. State of Kerala & Ors” the constitutional validity of Rule was challenged for being violative of fundamental rights under Articles 14, 15, 17 and 25(1) of the Constitution. 
  • The constitutional bench consisting J. Dipak Mishra, J. A. M. Khanwilkar, J. Chandrachud, J. R. F. Nariman and J. Indu Malhotra had delivered the judgment on 26th September 2018 with 4:1 majority  lifted the ban of entry of women into Sabarimala temple.
  • While the court favoured the gender equality, it created chaos among the believers of the custom.

BACKGROUND

  • The Sabarimala temple in Kerala is devoted to the worship of Lord Ayyappa, as a ‘Naishtika Bramhachari’. Women of menstruating age is restricted from entering temple. The temple is under the control of the Travancore Devaswom Board .
  • This restriction was challenged and, in the year of 1991, and the Kerala High Court upheld the tradition and decreed that the prohibition by the Travancore Devaswom Board that administers the hill shrine does not violate the Constitution.
  • Indian Young Lawyers Association filed a public interest litigation petition under Article 32, in the year 2006 before the Supreme Court challenging the Sabrimala Temple’s custom of excluding women into the entry of the temple.

FACTS OF THE CASE

  • In the case of “Indian Young Lawyers Association & Ors v. State of Kerala & Ors” the validity of Rule 3(b) of the Kerala Hindu Places of Public Worship, 1965 was challenged in the Supreme Court for the reason of violation of fundamental rights under Articles 14, 15, 17 and 25(1) of the Constitution.
  • The rule prohibited entry of women of age group 10-50 from entering the Sabarimala temple.
  • The Petitioners contended that the Right to equality-Article 14and right to religion-Articles 25 and 26 being violated while the Respondents argued that their right to religion and right to manage religious affairs will be violated if women’s entry is allowed in the temple as their faith requires exclusion of such women from the temple on account of the celibate nature of the deity and the core beliefs of the Ayyappan faith. 
  • Based on these submissions, in order to determine whether Rule 3(b) of the Kerala Hindu Places of Public Worship should be declared unconstitutional or not, three main issues were framed and addressed by the court.

ISSUES

  1. Whether or not the exclusionary practice that is relied upon a biological factor that is exclusive to the feminine gender amounts to “discrimination” and thereby violates Articles 14,15 and 17?
  2. Whether or not the practice of excluding such women constitutes an “essential religious practice” under Article 25 and whether a religious institution can assert a claim in that regard under the purview of right to manage its own affairs in the matters of religion?
  3. Whether Ayyappa Temple in Sabarimala holds a denominational character?
  4. Whether Rule 3(b) 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? If so, does it violate Articles 14 and 15(3) of the Indian Constitution by restricting entry on the grounds of sex?

PETITIONERS CONTENTIONS

The key arguments placed by the petitioners are,

  • The religious custom which prohibited entry of women into Sabarimala temple violated the right against untouchability under Article 17 of the Indian Constitution
  • The right of a religious denomination to manage its internal affairs under Article 26(b) has to be harmonized with 25(1) of the Indian Constitution ,the women’s right to practice religion.
  • Devaswom Board is a part of the Hindu religion. Women has always been treated with dignity in Hindu religion, any custom which prohibits women entry is against the religion.

RESPONDENTS CONTENTIONS

The key arguments placed by the respondents,

  • The exclusionary practice is not a cruel one and only acts of cruelty should be declared unconstitutional and the discrimination is not against an entire class of women but only against a certain age group between 10 and 50 therefore it is not primarily gender based .
  • There is no violation of Article 15, 25 and 26 of the Indian Constitution as the exclusion is not on women as a class
  • Lord Ayyappa is a living entity and has the right to privacy under Article 21

FINDINGS & REASONING

There are two rights that are combating here, the right to manage their own religious affairs and the right of equality for women to enter the temple. In the 4:1 bench , majority concluded that such women’s fundamental a right to equality and religion is violated by the impugned Rule 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry)  and is therefore, unconstitutional and liable to be struck down. 

Violation of Article 14,15,17:

  • Justice D Y Chandrachud held that “the exclusion of women between the ages of 10-50 years by the Sabarimala Temple was contrary to constitutional morality and that it subverted the construct of autonomy, liberty, and dignity”
  • Justice Indu Malhotra in her judgement expressed a dissenting opinion that” In matters of religion and religious practises, Article 14 can be invoked solely by persons who are similarly situated, that is, persons belonging to the identical faith, creed, or section. But in this case the Petitioners do not state that they are devotees of Lord Ayyappa, who are aggrieved by the practises followed in the Sabarimala Temple” instead they promote them as activists.

DENOMINATIONAL CHARACTER OF THE TEMPLE

  • Justice Rohinton Nariman held that “the Sabarimala Temple’s denominational freedom under Article 26 is subject to the State’s social reform mandate under Article 25(2)(b)”, which was upheld by CJI Dipak Misra.
  • Justice Indu Malhotra in her judgement expressed a dissenting opinion that the Sabarimala Temple satisfies the neccesities for being considered a separate religious denomination. She therefore held that the temple in Sabarimala is protected under Article 26(b) to manage its internal affairs and is not subject to the social reform mandate .

DISPOSITION

  • The Court delivered its verdict in relation to women entering Sabarimala temple on September 2018, A 4:1 majority held that the practice followed by the temple of excluding women is unconstitutional. The court held that the practice violated the Articles 14, 15, 19(1), 21 and 25(1).  The Rule 3(b) of the Kerala Hindu Places of Public Worship Act was held unconstitutional and was struck down.
  • Justice Nariman and Justice Chandrachud, J. A. M. Khanwilkar concurred with the opinion of Chief Justice Misra. The dissenting opinion in the case was expressed by Justice Indu Malhotra.

CRITICAL ANALYSIS

  • Justice Indu Malhotra stated that the Sabarimala Temple satisfies the requirements for being considered a separate religious denomination.
  • She expressed that the Court must respect a religious denomination’s right to manage their internal affairs, regardless of whether their practices are rational or logical.  
  • Quoting the case “Subramaniam Swamy v. Union of India, Ministry of Law & Ors” she emphasized on the constitutional necessity of balancing various rights.
  • She pointed out the importance of harmonizing the combating rights.
  • She emphasized on the very fact that the religious practises being followed in this Temple are based on the belief that the Lord has expressed himself in the form of a ‘Naishtika Brahmachari’.
  • Quoting the case “Bijoe Emmanuel & Ors. v. State of Kerala & Ors” she asserted

that the Constitutional nature of our country permits religious beliefs and practises to exist and it does not need to concentrate whether or not they appeal to the rational sensibilities of this Court.

  • Chief Justice Dipak Misra, Justice R F Nariman, Justice D Y Chandrachud constituted the majority and held the practice to be unconstitutional while Justice Indu Malhotra was the lone person who contradicted the opinion and dissented.

CONCLUSION

The prohibition of entry of menstruating women into the Sabarimala temple should been viewed from the context of Lord Ayyappa himself, who does not want to be visited by women of certain age.

 Those who believe in the core ethos of the temple will not protest to enter into the temple against the wish of the god himself.

 Lord Ayyappa sits in various spiritual forms in different temples and he is in the form of celibate god in the Sabarimala temple. Women are allowed to enter into other Ayyappa temples where he is not in the form of celibate god, it explains that there is not discrimination, rather a spiritual belief. 

The courts should not interfere into the core belief system of the religion, then there will be numerous similar litigations and the court will have to deal with customs and practices of individual temples and deities and the secularism of the nation will be questioned.

Case Summary

Anuradha Bhasin v. Union of India [2020 3 SCC 637]

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This Case Summary is written by Medha Rudra, a student at KIIT School of Law, Odisha

ABSTRACT

The case of Anuradha Bhasin v. Union of India is a ray of hope as it stated that the Freedom of Speech and Expression over the Internet is a fundamental right. It recognized that freedom of press should not be curtailed until it harms the public order of a country. It also stated that internet shutdown for an indefinite period is not a solution for preventing apprehension of harm to law and order. This case comment explains in details the facts of the case and its background which led to the declaration of such a restriction by the government. The author will also discuss the contentions and arguments put forward by both the parties and the issues raised. The author will provide a detailed analysis of the judgement given by the Court and will also present the views and opinions the author feels and will also highlight the gap at which the case may be challenged and the decision could be improved in future. This case will in future give way to the demands raised for Internet as a fundamental right and will nudge the governments to think twice before putting complete restrictions on people’s freedom of speech and expression. 

Keywords – Freedom of Speech and Expression, Internet, Supreme Court, Restrictions, Freedom of Press

INTRODUCTION

This recent judgement was decided by a three judge bench of the Hon’ble Supreme Court of India in which question arose as to the essentiality of internet for the smooth functioning of media. This case arose in the midst of the abrogation of Article 370 which resulted in the revocation of the special status of Jammu and Kashmir. The case argued on the internet shutdown and movement restrictions imposed over the territory of Jammu and Kashmir on 4th August, 2019. The restrictions were imposed under the name of maintaining the public order. The Court ordered the Government to assess the impositions by conducting the test of necessity and proportionality and should act accordingly to that. The decision of the Court was questioned on the basis of curtailing the freedom of speech of the press and media and also on the basis of Court’s ignorance on the indefinite restriction of internet services and movement of press personnel.

The issues of the case arise with the Security Advisory issued by the Civil Secretariat, Home Department, Government of Jammu and Kashmir on 2nd August, 2019 advised the tourists and the Amarnath Yatris to shorten their stays and to make arrangements for return so as to maintain their safety and security. Further, an order was released stating that all educational institutions and offices were to remain closed until any further orders are received. On 4th August, 2019, the internet services, mobile networks and landline connectivity was discontinued. The President, on 5th August, 2019, issued Constitutional Order 272 which led to revocation of Article 370 and resulted in the applicability of all Constitutional Provisions of India to the state of Jammu and Kashmir. The District Magistrate further imposed restrictions on movement and public assembly under the authority of Section 144 of Code of Criminal Procedure, 1973. So this case was brought under Writ Petitions by Ms. Anuradha Bhasin who was the editor of the Kashmir Times Srinagar Edition and Mr. Ghulam Nabi Azad who is the former Leader of Opposition in Rajya Sabha.

CONTENTIONS AND ARGUMENTS OF THE PARTIES

The Petitioner contented that print media came to a stop as internet services were not available and curtailing the internet is a breach of freedom of speech and expression and should be tested on the basis of necessity and proportionately. It was observed by the petitioners that the Suspension Rules under the Telegraph Act was of a temporary nature and this internet shutdown has become of an indefinite nature. It was also submitted that restrictions imposed are also in contravention of Indian National Telecom Policy, 2012. It was contented that restrictions imposed should have been temporary in nature but have been imposed for more than 100 days. It was argued that the Government imposed these restrictions on the basis of apprehension of likelihood of danger to law and order is unreasonable. The Petitioners mentioned that the official orders must not be kept secret by the State and the State must prove the necessity of the restrictions. The Counsel for Mr. Ghulam Nabi Azad emphasized that internet shutdown did not only violated freedom of speech but also snatched the right of political representatives to communicate with the people of their constituencies. It was contented that the validity of the act of the State should be tested as according to Article 19 and 21.

Mr. K.K. Venugopal who is the Attorney General for the Union of India argued that terrorism activities in the region of Jammu and Kashmir should be taken into account and these steps were taken as a preventive measure to avoid violence. This made the imposition of Section 144 of Cr.P.C. necessary. He made a note of the case of National Investigation Agency v. Zahoor Ahmad Shah Watali where the Supreme Court had addressed the problem of terrorism in Jammu and Kashmir. Tushar Mehta, Solicitor General of Jammu and Kashmir stated that the facts presented by the petitioners were incorrect because they were unknown to the actual facts of the situation. He also emphasized that cross border terrorism is very common in the region of Jammu and Kashmir so Section 144 of Cr.P.C. was necessary and gradually the impositions are being relaxed. He also stated that there was never a restriction on an individual’s movement and he presented figures on the working newspapers, radios and televisions from the area of Ms. Anuradha Bhasin.

The Solicitor General also mentioned that the internet services were limited and restricted because of the quick transmission of fake and provoking news through social media. He differentiated between newspaper and internet being two different kinds of media. He stated that internet gives a two-way communication and hence can prove to be a danger to the law and public order of the State. He also stated that the Suspension Rules are being reviewed strictly and were used reasonably.

ISSUES RAISED

Keeping in view the facts and arguments of the case, the following issues were raised:

  1. Whether exemption be claimed by the Government regarding the production of all orders passed under Section 144 Cr.P.C. and other orders under the Suspension Rules? 
  2. Whether Fundamental rights under Part II of the Constitution of India includes the freedom of speech and expression and freedom to practise any profession, or to carry on any occupation, trade or business over Internet?
  3. Whether the act of prohibition of internet access by the Government is valid? 
  4. Whether the imposition of restrictions under Section 144, Cr.P.C. were valid?
  5. Whether the restrictions violated the freedom of press of the Petitioner in W.P. (C)No. 1031 of 2019?

ANALYSIS OF THE JUDGEMENT 

The Supreme Court stated that its objective is to maintain a balance between the liberty and security so as to secure and enjoy the right to life in the best possible manner rather than looking at the political propriety of the decision. The petitioners claimed that the required orders were not available to them and thus could not be produced before the Court. The Respondents also accepted the fact of non-availability of orders. The Court noted that the non-availability of orders made it difficult to decide the validity of the decision. The Court cited the precedent of Ram Jethmalani v. Union of India where it was stated that the petitioners cannot be denied the necessary information they seek and the State is obliged to disclose information in order to avail the right to remedy given under Article 32 of the Constitution. The Court also clarified that right to freedom of expression guaranteed under Article 19 of the Indian Constitution can be extended to include right to freedom of print media. Court emphasized that online expression is an essential element of freedom of speech and expression under Article 19(1)(a) and the business and trade in which internet and online services are essential for functioning comes under authority of Article(1)(g). These freedoms can be restricted under Article 19(2) and 19(6) respectively. Looking upon Article 19(2), the Court decided that complete restrictions can be put on freedom of speech and expression but it has to be proved that other lesser alternatives cannot suffice the needs. The Court ensured that the restriction must not be beyond what is necessary. The petitioners also put forward that ‘law and order’ has a narrow ambit than ‘public order’ the invocation of Section 144 can justify the issue of ‘public order’ also. In Ram Manohar Lohia v. State of Bihar, it was held that mere disturbance in law and order does not necessarily leads to disturbance in public order. 

The Court highlighted that it is important to look both substantive and procedural mechanism to determine the constitutional validity of the internet shutdown imposed in the region of Jammu and Kashmir. Suspension Rules under Section 7 of the Telegraph Act passed in 2017 gave permission to the Government to restrict telecom and internet services keeping in view certain safeguards. Section 5(2) of the Telegraph Act states that the restrictions can be imposed only in case of public emergency or in the interest of public safety and proper evidence has to be shown regarding the necessity of the restriction. The Court stated that “complete broad suspension of telecom services, be it the Internet or otherwise, being a drastic measure, must be considered by the State only if ‘necessary’ and ‘unavoidable’. In furtherance of the same, the State must assess the existence of an alternate less intrusive remedy.”

Addressing the issues regarding the application of Section 144 of Cr.P.C., the Court observed that Section 144 can be imposed not only in the cases of present danger but also in cases of apprehension of danger. It is a preventive action against possible future violence and disturbances to public order and safety. But, indefinite restrictions under Section 144 is unconstitutional. It should be imposed only for a necessary period and cannot be used in a repetitive manner. The Court noted that the petitioners failed to prove the restrictions and difficulties in publishing newspapers. The Apex Court referred to the case of Channing Arnold v. The Emperor, where it was stated that “the freedom of the journalist is an ordinary part of the freedom of the subject and to whatever length, the subject in general may go, so also may the journalist, but apart from the statute law his privilege is no other and no higher. The range of his assertions, his criticisms or his comments is as wide as, and no wider than that of any other subject.”

CONCLUSION

The Hon’ble Supreme Court in this judgement found that freedom of online expression and freedom to practice any profession through online means is protected by the Indian Constitution. The Court denied to lift the restrictions and left it into the discretion of the State to review it and remove the unnecessary impositions. The Court also ordered the restrictions to be of a temporary nature. This case widened the scope of Section 144 of Cr.P.C. by applying its use even in the cases where there is apprehension of danger. This case also made observations regarding the illegitimate use of Section 144 and its prohibition as it will lead to abuse of power of the State. But, the Court also stated that a responsible government should always take care of all the rights and needs of press and media and provide them protection in their freedom of speech. This case will always act as a precedent in cases where rights of media and freedom of press will be the issue for arguments. The judgements also faced criticisms. The Court could have put strict orders on the State to immediately review their restrictions imposed rather than again giving the discretion to the State. Press and Media is considered as the fourth pillar of democracy. It should be free from restrictions which curtail its power to work effectively and efficiently. The State should keep in view that media is the source of information for the public and curtailing its expression and communication can lead to stoppage of information to the public. The media should also work in a view not to harm the dignity of the State, refrain from spreading biased views and it should maintain and respect the ideals, values and sentiments of the society. Media should not be driven by the profit-earning concept rather than it should stick towards working for society’s welfare through providing people the accurate and adequate news without taking sides. This case may be challenged in future for the recognition of the freedom of expression, movement and communication of press and media and then all will look forward to more clear recognition of press rights. The Hon’ble Supreme Court may then give strict rules to the government so that the government is not at a dominating position and unreasonable restrictions should not degrade the quality of press and media in sharing vital information with the public.