This Case Summary is written by Mariyah Saifuddin Sariya, a student at MMM’s Shankarrao Chavan Law College, Pune

Decriminalizing All Consensual Sex Among Adults, Including Homosexual Sex.

SYNOPSIS

Section 377 of the Indian Penal Code (IPC) imposes criminal liability on the one who ‘voluntarily has carnal intercourse against the order of nature’. When the said Section 377 was questioned before the Supreme Court of India with ‘consent’ as the crux of the arguments, the Court decided to de- criminalize certain acts as described in the following case analysis.

Thus, The Supreme Court of India, through this judgement, reiterated its pace with changing times and mindset of the people of the developing society.

BACKGROUND

‘The Navtej Johar’ case is not the first case in India to be dealing and revolting for the rights the homosexuals. A similar case example can be taken that too spoke up for the same issue and that is- ‘National Legal Services Authority. Vs. Union of India & Ors.’ also popularly known as NALSA Case, wherein the Court was dwelling upon the status of identity of the transgenders. There are number of similar people like Navtej Johar who have upfronted regarding this issue but their voices weren’t given an opportunity to be heard publicly. Below are the two important precedents mentioned in this case that has dealt with the issue-

• Naz Foundation. Vs. Govt. of NCT, Delhi

The aforementioned foundation is an NGO that filed a lawsuit in Delhi High Court seeking legislation of homosexuality as criminalization of homosexuality led to hindrances in its initiative. The High Court dismissed the petition on the grounds of no locus standi (appearance in the court) of the petitioner. The Apex Court said in a statement that Section 377 of the Indian Penal Code, creates unreasoned classification and target the homosexuals. 

The word ‘SEX’ under Article 15 of the Indian Constitution, includes the term ‘sexual orientation’ as well, and since Article 15 prevents discrimination based on Sex, Section 377 is found to be violating Article 15. Also, because the homosexuals often hide their identity due to the criminalization of homosexuality, adequate treatment is not provided. Thus, Section 377 was declared as ‘unconstitutional’ so far as it criminalizes consensual sexual acts of adults in private.

Suresh Kumar Kaushal. Vs. Naz Foundation

The petitioner of the aforementioned case, Suresh Kaushal, challenged the decision of the Apex Court that was delivered in the Naz Foundation case wherein the Apex Court legalized homosexuality. The petitioner contended that the documentary evidence provided by the Naz Foundation was unreliable and also further stated that if homosexuality is legalized, the broad Institution of Marriage and the Social Structure would fractionate and demolish. 

Further, the respondent, Naz Foundation, re- stated the arguments and after the courtroom trial for the same, the Apex Court held Section 377 to be constitutionally valid. 

FACTS

Navtej Singh Johar (petitioner) filed a Writ Petition before a three- judge bench of the Supreme Court of India seeking inclusion of right to ‘right to sexuality’, ‘right to sexual anatomy’, and ‘right to choose of a sexual partner’, within the ambit of right to life guaranteed under Article 21 of the Constitution of India. It was also sought by the petitioner to declare Section 377 of the Indian Penal Code as unconstitutional. Whereas, Union of India (respondent) left the question of the constitutional validity of Section 377 to the wisdom of the court.

This made the Apex Court, that was earlier led by a bench of three-judge, decide to get the matter transferred in the hands of the larger bench, that is led by five-judge, to address the matter. Thus, when the petition was transferred to the larger bench, Section 377 came to be stroked down as the acts of homosexuality allegedly appeared to be against the concept of constitutional dignity.

ISSUE BEFORE THE COURT

1. Whether Section 377 was contrary to the judgement given in the case of ‘Suresh Kumar Kaushal & Anr. Vs. Naz Foundation & Ors.’?
2. Whether Section 377 of IPC is violates Articles 14 and 15 of the Indian Constitution?
3. Whether Section 377 violates the right to privacy under Article 21 of the Indian Constitution?

CONTENTONS/ ARGUMENTS

 [A] The arguments put forth by the Petitioners are as follows:

1. Bisexuality, Homosexuality and other sexual orientations are equally natural to all persons as a expression of choice and are founded on consent of legally qualified persons.

2. Making sexual orientations a criminal offence is against the well- established principles of an individual’s dignity and autonomy. Cases that are put forward for the reference base by the petitioners are-

 [Shakti Vahini. Vs. UOI & Ors.], [S. Puttaswasmy and Anr. Vs. UOI & Ors.], [Common Cause – A Registered Society Vs. UOI & Anr.], etc.

3. The LGBT (lesbian, gay, bisexual, transgender) community needs to be recognized and be provided equal legal protection in the society as similar to as those extended to partners in live-in-relationships, irrespective of they being minority.

4. Section 377 violates Article 14 as it is vague when it comes to the term “carnal intercourse against the order of nature” to which added, no intelligible differentia or reasonable classification exist as long as sex is consensual between the partners.

     Ref. [Anuj Garg & Ors. Vs. Hotel Association of India & Ors.]

5. Sexual autonomy and right to choose a partner of one’s choice is inherent under Article 21 of the Indian Constitution. But on the other side it is seen, a person’s right to reputation is also taken away under Section 377, which is a facet of Article 21 of the Indian Constitution.

6. Section 377 hampers the ability of the LGBT’s community to realize their constitutional rights to shelter; People belonging to LGBT community seek assistance of private sources and face consequences of the social morality. It is also arbitrary and is against the concept of fraternity as enshrined in the Preamble of our Constitution.

     Ref- [Shayara Bano. Vs. UOI & Ors.]

The arguments put forth by the Respondents are as follows:

1. Acts like abusing one’s organs as prescribed under Section 377, are undignified and derogatory and would amount to constitutional wrong and constitutional immorality.

2. Therein, the acts mentioned in Section 377 rightly makes it punishable and now in 2018, the said Section is more relevant legally, medically, constitutionally and morally.

3. Declaring Section 377 as unconstitutional, would hamper the family system and the marriage institution of the society.

4. Despite the fact that various consensual acts are de- criminalized in various parts of the world, India cannot afford to de- criminalize the same due to its different political, economic and cultural mechanisms.

5. Similar issues pertaining to the constitutional recognition and the rights of the LGBTQ community has been exhaustively considered in the NALSA judgment along with the fact that they will be granted with no further reliefs.

6. Section 377 implementing irrespective of one’s gender or sexual orientation, doctrine of manifest arbitrariness is of no application as the law is not clearly arbitrary. Also, the said Section does not violate Article 14 as it defines a particular offence along with its punishment which makes this argument a reasonable classification.

SUMMARY OF THE JUDGEMENT

When the Writ Petition was submitted before the three-judge bench, the overviewed the Suresh Koushal case wherein the larger-judge bench overturned the Naz Foundation judgement. It was this time when the three-judge bench felt the need to transfer the petition into the hands of the larger-judge bench since it required intensive scrutinization regarding Section 377.

After considering the petitions and scrutinizing through various aspects, the learned five-judge bench stated that hindering an individual from practicing public and personal sources, violates the equality principle enshrined in the Article 14 of the Indian Constitution. Stating this, the judgement has been delivered in the favor of the petitioner, Navtej Singh Johar, and unanimously held that Section 377 was unconstitutional as far as it criminalized consensual sex between the two adult partners of either same/different gender.

Any judgment given by ta five-judge bench, is a binding precedent on all courts in India. Thus, the judgement can be considered as the ultimate verdict. 

ANALYSIS

Chronologically, the case ‘Naz Foundation. Vs. Govt. of NCT, Delhi’, observed that Article 15 prohibits discrimination on several crucial grounds. Thus, Section 377 was declared as unconstitutional by the Court considering Article 14, 15 and 21 of the Indian Constitution. As mentioned earlier, this case was father overturned in ‘Suresh Kumar Kaushal Vs. Naz Foundation’, by another Delhi High Court bench.

It has been established by the Judiciary that the rights guaranteed as Fundamental rights under Article 14 and 21, are timeless rights of ‘liberty’ and ‘equality’. Here comes the concept ‘Transformative Constitutionalism’ which made it a requirement to recognize the right of LGBT community under Article 14, 19 and 21 of the Indian Constitution.

Section 377 has created a chilling effect on the acceptance and judicial judgement. If such treatment is continued to persist in the society, the judiciary system would fail in the discharge of their duty and would curtail the citizens belief in the Indian Judiciary. Keeping in mind the constitutional morality, Section 377 should not smother nonsexual sex between two adults.

Furthermore, the Petitioner contended Section 377 as violator to article 14 guaranteeing the right to equality because there existed ‘no intelligible differentia’.

To summaries, the five-judge bench unanimously struck down Section 377 of the IPC. LGBT individuals are now legally allowed to engage in consensual intercourse. The four judgments unanimously cited violations in reading down Section 377. They found that Section 377 discriminates against individuals on the basis of their sexual orientation and/or gender identity, violating Articles 14 and 15 of the Constitution. They ruled that Section 377 violates the rights to life, dignity and autonomy of personal choice under Article 21. 

Finally, they found that it inhibits an LGBT individual’s ability to fully realize their identity, by violating the right to freedom of expression under Article 19(1)(a).

CONCLUSION

After all the court hearings, it can be said that the judgment has taken a very reformative stand by declaring that the members of the LGBT community are entitled like all other citizens to an extent where they get all the liberties protected by the Indian Constitution. We can imagine what a momentous moment they all might be experiencing after years of their struggle. 

They are no more going to get denied to enjoy their services since they have now constitutionally joined the clan of equal citizenship, no discrimination and equal protection of law. Moreover, this judgment has definitely taken forth the concept of Transformative Constitutionalism to a whole new level, which may now pave the way for a number of amendments and reformation in the legal realm of the country.

The judgement will boost their confidence and motivation to face the world that a LGBT person ever needed. They have received a confirmation that no matter what, the judiciary of this country will stand for them and protect their rights.

Speaking about the overall analysis, the judgment would have been more impressive and pleasing if it also attempted to make suggestions or provisions for the social and economical inclusion and development of the community.

In my opinion, having suffered at the hands of not only the society but also family and being termed ‘untouchables’, it was high time that our Honorable Supreme Court adopted a bold and a progressive and accepted LGBT community as a ‘normal’ part of the Indian society.

To conclude, I would quote Marsha. P. Johnson, “No pride for some of us without liberation for all of us”.

This Case Summary is written by Nupur Misra, a student at Army Law College, Pune

SYNOPSIS

The Sabarimala Temple, the dwelling of Lord Ayyappan, is located in the Periyar Tiger Reserve in the Perinad Village of Pathanamthitta District, Kerala. It prohibits the entry of women in their ‘menstruating years’ (between the ages of 10 to 50), out of respect to the celibate nature of the deity. 

In 2006, Indian Young Lawyers Association filed a public interest litigation petition before the Supreme Court challenging the Sabarimala Temple’s custom of excluding menstruating women. The Association argued that the custom violates the women’s rights against discrimination under Article 15(1) and freedom of religion under Article 25(1) of female worshippers. The author, through this research work, tried to comprehend the Court’s decision regarding the same.

BACKGROUND

Sabarimala is a temple of great antiquity devoted to Lord Ayyappan, an avatar of Lord Vishnu, born out of the union of Lord Shiva and Mohini, where Mohini is the female form of Vishnu. Sabarimala is supposed to delineate “Naishtika Brahmacharya” which means undertaking a vow to remain a celibate till one’s death or a student celibate; therefore women belonging to menstruating age are not permitted to enter the temple. This temple is managed by Travancore Devasvom Board (an affiliate authority of the Government of Kerala) and the main stakeholders of the temple are Travancore Devasvom Board, Tantri (head priest), Pandalam royal family, Ayyappan Seva Sangram etc. The issue of restriction on the entry of menstruating women in the Sabarimala temple has been a topic of national argumentation for quite a while now. This issue of restriction on women from entering the shrine was first challenged before the Kerala High Court in 1991 in the case of S. Mahendran v. The Secretary, Travancore Devasvom Board, Thiruvananthapuram and others. The division bench of the Kerala High Court had upheld the ban on women of a particular age group offering worship at the shrine and gave an edict asserting that the restrictions have been existing since time immemorial and the restriction by the Travancore Board does not infringe the Constitution of India or the pertinent 1965 Kerala Law. In 2006 a subsequent petition was filed by Indian Young Lawyers Association before the Supreme Court challenging the Sabarimala temple’s age-old custom of excluding women. The association argued that the custom violates the right guaranteed under Article 15 and 25 of the Indian Constitution. In which the state contended that the Temple’s priests have the final authority in this matter. The Travancore Devasvom Board has the legal authority to manage the Sabarimala Temple’s administration. Article 26 of the Constitution, guarantees a religious denomination the right to handle its internal religious affairs. Furthermore, the Sabarimala ritual was protected by Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 (“Public Worship Rules”). The rule legitimized the exclusion of women from public places of worship if the exclusion was based on ‘custom’. The Supreme Court later determined and drew a parallel between Right to Religion and Right to Equality as the basic fundamental rights given by the Constitution of India and through its judgment uplifted the ban which prohibited women from entering the shrine.

FACTS OF THE CASE

In 2006, a group of five women lawyers challenged the constitutional legitimacy of Rule 3(b) of the Kerala Hindu Places of Public Worship Rules, 1965 (that restrict the entry of women into the Temple). This legislation was ratified by the state government to regulate the entry of different sections of Hindus into places of public worship. The petition stated that the ban enforced (restricting entry of women) be removed as it was ultra vires the Constitution. On 28th September 2018, a Constitution Bench allowed the entry of women irrespective of their age into the Shrine on the grounds that the ban violated the fundamental right of freedom of religion as per Article 25 of the Constitution. The provision restricting the entry of women in the state legislation was struck down and adjudged unconstitutional.  

Senior Advocate Indira Jaising, who represented the petitioner’s side, said that the restrictions violated Articles 14, 15, 17 and 51A (e) of the Constitution. She reasoned that the custom is discriminatory in nature and stigmatised women and that women should be allowed to pray at the place of their choice.

ISSUES

The issues that were raised by the petitioner are as follows

1. Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules allows a ‘religious denomination’ to ban the entry of women between the ages of 10 and 50 years. Does this practice violate Articles 14 and 15(3) of the Constitution by restricting entry on the grounds of sex?

2. Whether the custom constitutes an ‘essential religious practice’ under Article 25? Whether a religious institution can assert its claim to do so under the right to manage its affairs in the matters of religion?

3. Whether the exclusionary practice based on a biological factor exclusive to the female gender amounts to ‘discrimination? Whether this practice violates the core of Articles 14, 15 and 17?

4. Whether the Sabarimala Temple has a denominational character and, if so, is it allowed on the part of a ‘religious denomination managed by a statutory board and financed under Article 290-A of the Constitution of India out of the Consolidated Fund of Kerala and Tamil Nadu to indulge in such practices violating constitutional principles/morality rooted in Articles 14, 15(3), 39(a) and 51A (e)?

JUDGEMENT 

In September 2018, the Court delivered its verdict on Sabarimala Temple Entry. A 4:1 majority held that the temple’s practise of excluding women is unlawful. It held that the ritual violated the fundamental right to freedom of religion – Article 25(1) – of female worshippers. It struck down Rule 3(b) of the Kerala Hindu Places of Public Worship Act as unconstitutional. Rule 3(b) allowed for Hindu denominations to exclude women from public places of worship, if it was based on ‘custom’.

The Court delivered four separate opinions: Chief Justice Misra, Justice Nariman, Justice Chandrachud, and Justice Malhotra. Justice Nariman & Justice Chandrachud concurred with the opinion of Chief Justice Misra. The dissenting verdict in the case was delivered by Justice Indu Malhotra.

CRITICAL ANALYSIS

The Sabarimala judgment is a tussle between Fundamental Rights and Tradition. Like any other case, the Sabarimala Case has two sides to it. On one hand, the women are happy that they are being allowed to enter the temple. On the other hand, the women of that religion, for whom this temple was constructed and who worship the deity are the ones who oppose the upliftment of the ban as it goes against their religious ideals and refuses to accept the order of the Supreme Court. They argued that this verdict was a violation of their right to religious freedom.

Practice started in the ancient past and continued since time immemorial without any interruption, becomes a usage and custom. Reliance, in this regard, can be placed on the judgments of Ewanlangki-E-Rymbai v. Jaintia Hills District Council & Ors., Bhimashya & Ors. v. Janabi (Smt) Alia Janawwa, and Salekh Chand (Dead) by LRs v. Satya Gupta & Ors. Moreover the judgement also violates Article 21, of the people who worship Lord Ayyappan, which also includes the right to protection of one’s tradition, culture and heritage. A religion can lay down moral codes, and also prescribe rituals, ceremonies etc. which are also regarded as an essential part of religion and hence are to be protected as a religious belief. Therefore, the ban laid down by the temple on menstruating women was justified as it was in pursuance of an ‘essential religious practice’. The temple was just following an age-old tradition. 

‘Equality should be made available to all persons irrespective of their caste, sex and other discriminatory grounds’- a familiar line uttered frequently by many self-proclaimed modern era intellectuals. But what do they mean by ‘gender equality’; fascinatingly everybody has a different narrative, each with a somewhat ambivalent logic. ‘Women should be treated at par with men’, appears to be the popular notion, even though there are several cases where men are not treated at par with women. A few examples of such instances are, women’s reservation- which makes the female section of the society a privileged class, as per section 375 of the Indian Penal Code rape is something that only a man can do to a woman there is no room for adult male victims, much less female perpetrators. When the temple was constructed there was a reason why the Travancore Devasvom Board was formed i.e. to regulate the entire authority which was concerned with the temple, now it’s not just this temple that said that there is a restriction on women there various temples like Kumari Amman Temple in the Kanyakumari region that strictly ensures that men are not allowed within its premises at any point of time and then there are certain temples like Kapaleeswarar Temple where any foreigner and/or non-Hindu person are not allowed inside the temple simply because they follow the mythology of that particular state that is what the Sabarimala Temple was also doing, hence it violates Article 25 and 26 together of the people of that religion. As far as the women’s right to offer their worship is concerned, it is safeguarded as there are at least a thousand temples of Lord Ayyappan where he has not manifested himself in the form of a ‘Naishtika Brahamachari’ allowing women of all ages to visit the temple. In order to preserve the character of the deity and the sanctity of the idol at the Sabarimala Temple, the limited restriction is imposed on the entry of women only during the period specified by the Travancore Devasvom Board; there is no absolute restriction on women per se.

CONCLUSION

Even though the social exclusion of women from entering the Sabarimala shrine is a violation of several dimensions, the deep religious sentiment of the people should not be interfered with by the courts, unless there is truly a distressed party pleading attention to the same (social evil like Sati). Courts should not impose their personal views on morality or rationality concerning the form of worship of a deity. People should be given the freedom to practise their faith following the beliefs of their religion, irrelevant of the fact that whether the practise is rational or irrational. Asserting the court’s morality and rationality on religion would repudiate the freedom to practise one’s religion according to one’s faith and belief which would lead to rationalising religion, faith and beliefs, which is outside the ken of Courts. The doctrine of equality can’t supersede the fundamental right to worship under Article 25 of the Constitution. Sabarimala has its own unique mythology, tradition and rituals and it is not about discrimination at all. It is all about the belief of both women and men who worship Lord Ayyappa. While the debate about discrimination and inequality is welcome, we must not forget that most Hindu traditions practised in most Hindu temples are not documented, unlike Islam and Christianity, which are more recent religions and therefore more codified. Traditions that have been held close for so many years cannot be discarded by one judicial ruling. They simply cannot be kept aside in the name of ‘female empowerment’. For our secular society to thrive, it is of utmost importance that all religions thrive side by side. While one might argue “what about women’s empowerment”, we have seen that obsolete practices like Sati and child marriage are no longer in practice and that is what counts.

FACTS:

The petitioner, in this case, was the family of Henry and William Golaknath, who had 500 acres of farmland in Jalandhar, Punjab. According to the 1953 Punjab Security and Land Tenures Act, the state government of Punjab held that both the brothers could distribute thirty acres of land to each. In contrast, a few acres were given to the tenants, and all the remaining acres of land was termed as ‘surplus’. This was challenged by the Golaknath family before the Hon’ble Court and filed the petition under Article 32.

QUESTION OF LAW:

Whether the Punjab Security of Land Tenures Act, 1953 violates the fundamental rights guaranteed under:

19(1)(f) – Constitutional right to acquire and hold property

19(1)(g) – Practice any profession

14 – Equality before the law and Equal protection of the laws

HELD: 

• Parliament has no power to curtail the Fundamental Rights. Fundamental rights are equivalent to Natural Rights.
• The validity of the Constitution (Seventeenth Amendment) Act 1964 would not be affected by this decision.
• In the future, Parliament has no power to amend Part III of the Constitution of India, which deals with the Fundamental Rights to take away or abridge the Fundamental Right.
• A doctrine of Prospective Overruling was introduced in this decision. The concept behind this was to apply the “effect of law” on the future dates only aiming at the decisions that took place in the past will not be affected.
• All the previous Amendments made in this Part III will be Unconstitutional and Invalid.
• This decision observed the concept of “rule of law” that even the lawmakers are not above the law. It is about the faith of citizens, which itself is a supreme law. 

Submitted By: Manshi Joshi

FACTS

• The political party which was in power had carried out specific agrarian reforms in states like Bihar, Uttar Pradesh, Madhya Pradesh by enacting legislation which may be compendiously known as Zamindari Abolition Act.
• Certain Zamindars who were feeling aggrieved had challenged the enactments mentioned above in the court of law on the grounds that it contravened the Fundamental Rights conferred on them by Part III of the Indian Constitution. 
• The Patna High Court held that the Acts which have passed in Bihar were unconstitutional, whereas, the Allahabad High Court, as well as Nagpur High Court, upheld the validity of the acts in U.P and M.P, respectively. 
• Appeals from those decisions were made and the Union Government, in order to put an end to these types of litigations and also as a remedy to certain defects has brought forward the bill of the amendment.
• The abovementioned bill, after receiving the requisite majority came to be known as the Constitution (First) Amendment Act, 1951.
• As a response to this move of the Government, the Zamindars brought their petitions under Article 32 of the Indian Constitution, impugning the Amendment Act itself to be void and unconstitutional. 

QUESTION OF LAW

• Article 368.
• Article 13(2); Laws inconsistent with or in derogation of the fundamental rights.
• Article 392; Power of President to remove difficulties.
• Article 226; Power of High Court to issue writs.

HELD

It was held that the authority of the Parliament to amend the Constitution, including the fundamental rights is entailed in Article 368 and is not violative of the provisions of the Constitution. The court upheld the validity of the land reforms; as they do not restrain the powers of the High Court under Article 226 to issue writs for enforcement of any of the rights that are conferred by Part III or of the Supreme Court under Articles 132 and 136 to consider appeals from orders are issuing or refusing such writs. Article 31A and 31B are were held not invalid on the ground of ultra virus; hence the Court held that though the subject of Land came under the State list, therefore, to enact amendments of the Constitution lay exclusively with the Parliament.

Submitted By: Shramana Sengupta

FACTS

In this case, Public Interest Litigation has been filed under Article 32 of the Constitution in the Supreme Court of India for challenging the validity of Section 497 of the IPC along with Section 198(2) of the Criminal Procedure Code. This petition has been filled by Joseph Shine, who is a non-residence of Kerala. 

Section 497 of the IPC deals with adultery, means sexual intercourse between two people who are not married to each other or between a married and unmarried person. Adultery can be punishable for five years of imprisonment or fine, or both and wife is not punishable under this section.

Section 198(2) of the Criminal Procedure Code specifies the offences against marriage. This section specifies that only husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 and 498 of the IPC.

She contended that language of this section is very vague and it violates Article 14 and 21 of the Constitution, as this section didn’t punish the woman and also didn’t cover unmarried woman. This was not the first time that validity of section 497 has been challenged, it is challenged earlier even in case of Yusuf Abdul Aziz v/s State of Bombay (1954 AIR 321), Sowmithri Vishnu v/s Union of India (1985 AIR 1618), and in Revathi v/s Union of India and ors. (1988 AIR 835), but in all these case courts held that Section 497 is constitutional and valid. In this case, the court allowed the petition and five-judge bench started hearing the matter.

QUESTION OF LAW

Whether Section 497 of the IPC and Section 198(2) of the Criminal Procedure Code violate the fundamental right?

• Section 497 of IPC violates Article 14 (Right to Equality) and Article 21 (Right to Life) of the Constitution.
• This section treated wife as husband’s property, if the husband gave his consent for adultery, then it will not consider as adultery.
• This section only punishes the husband, not the wife, so there is a distinction between man and woman.

HELD

The five-judge bench held that Section 497 of the IPC is unconstitutional and adultery didn’t consider as a criminal offence and Section 198(2) which defines the procedure for filing a complaint about adultery is also unconstitutional. The court held that it is not a criminal offence but adultery can be a ground for divorce in family law. Section 497 of IPC only punished husband and didn’t cover an unmarried woman who violates the Article 14 of the Constitution, i.e., right to equality although under Article 15(3) provides special provision for a woman, this section didn’t fall in this provision. It also violates the right to privacy under the ambit of Article 21 of the Constitution as it violates the sexual autonomy of spouses. Because of this adultery was decriminalised and only ground for divorce. 

Submitted By: Nidhi Garg

FACTS

Two Judge Bench of the Supreme Court of India upheld the validity of Haryana Panchayati Raj (Amendment) Act, 2015 (Act 8 of 2015), which introduced the minimum educational qualification for candidates to contest the panchayat elections. The Bench consisting of Justice Chelameswar and A.M.Sapre held that both the rights, namely “Right to Vote” and “Right to Contest” aren’t fundamental Rights but only constitutional rights of the citizen.

QUESTION OF LAW

• Prescription of academic qualification isn’t irrelevant for better administration of the PANCHAYATS

• The classification can’t be said either unreasonable or without an inexpensive nexus with the thing sought to be achieved

• every one who is entitled to vote isn’t automatically entitled to contest for each office under the Constitution

• Constitution itself imposes limitations on the proper to contest depending upon the office

• It also authorises the prescription of further disqualifications/qualification with reference to the proper to contest.

HELD

Supreme Court also upheld the clauses of the Act which disqualify persons who are behind of amounts to cooperative bodies and thus the electricity bills and even if a private has no functional toilet at his place of residence.

Submitted By: Prachi Aggarwal

Date of Judgment: February 10, 2020

Judges: Justice Arun Mishra, Justice Vineet Saran and Justice S. Ravindra Bhat

Facts –

Here the petitioners have questioned the provisions inserted by carving out section 18A of the scheduled caste and scheduled tribes (prevention and atrocities) Act.

Question of Law-

Whether Section 18A of the Scheduled caste and Scheduled Tribes (atrocities and prevention act) is Constitutional?

Judgement-

After the Supreme Court’s landmark decision in Lalita Kumari Vs state of Uttar Pradesh (2013), registration of an FIR under, Section 154 CrPC for Cognisable offences are mandatory.
As for the bar on anticipatory bail, the Supreme Court in the latest Prithvi Raj Chauhan case concurred with the ruling in Vilas Pandurang Pawar Vs state of Maharashtra (2012) that “when an offence is registered against a person under the provisions of the SC-ST Act, no court shall entertain an application for anticipatory bail unless it prima facie finds that such an offence is not made out. Moreover, while considering the bail application, the scope for an appreciation of evidence and other material on record is limited. The court is not expected to indulge in critical analysis of the evidence on record. The provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence.” The Supreme Court upheld the constitutionality of the SC/ST amendment Act.

Submitted By: Dhritisha Saikia

B.K. Pavitra V Union Of India(B.K.Pavitra II) (10 May 2019) 

FACTS

In B.K.Pavitra I, the court struck down Sec 3 & Sec 4 of the Reservation Act 2002 as they were ultra vires to Article 14 & 16 of the Indian Constitution on the ground that they were not in consonance to the parameters held in Nagaraj. Following the decision in B.K.Pavitra I, Reservation Act, 2002 was held invalid.

The State of Karnataka established Ratna Prabha Committee to submit a quantitative report which could demonstrate the parameters laid down in  M Nagaraj V Union of India which are as follows:-

1. Cadre wise representation of SCs/STs
2. Current backwardness of SCs/STs
3. Effect on administrative efficiency due to reservation in promotion to SCs/STs

The committee submitted the report on 5 May 2017 and the basis of this report Reservation Act,2018 was passed which was preceded by Karnataka Determination of Seniority of Govt. Servants Promoted based on reservation (to the posts in civil services of the State) Act 2002.

Regarding the Reservation Act 2018, petitioners’ grievances were that the State govt. had re-enacted the earlier legislation(as of 2002 Act) without curing its defects. Also, the Reservation Act 2018 was not in compliance with the Nagaraj & Jarnail. To this, the state govt.asserted that the collection of data has been done in consonance to the parameters laid down by Nagaraj. 

QUESTIONS OF LAW

• Whether Reservation Act 2018 a legislative overruling if B.K. Pavitra I or not
• Whether Reservation Act 2018 in conformity with Constitutional Bench judgements in Nagaraj & Jarnail or not.

HELD

• Reference of both Nagaraj & Jarnail was given :

In M Nagaraj V Union Of India, it required the state to produce compelling evidence in order to introduce a reservation in promotion policy, and it required the state to follow three parameters that are further backwardness, inadequate representation and maintenance of administrative efficiency.

In Jarnail Singh V Lacchmi Narain Gupta, the first criteria given in Nagaraj was removed, but the introduction of creamy layer exclusion principle was introduced, according to which high-income group of SCs/STs can’t avail reservation in promotion.

To the first issue, the court held that the Reservation Act 2018 was not a legislative overruling of B.K.Pavitra I as this Act changed the basis of B.K.Pavitra I  by providing data. The court held that corrective legislation is constitutionally possible.

To the second issue, the court analyzed the data provided by the state which demonstrated backwardness, inadequate representation and administrative efficiency, which are as follow:

Backwardness/Creamy Layer: The court did not look into the data related to backwardness as this criteria was removed in Jarnail, but the creamy layer exclusion principle was added regarding which the committee had not collected any data as the judgement of Jarnail came after making the report, and hence the court upheld the Reservation Act 2018.

Inadequate Representation: The report concluded that there was an inadequate representation of SCs/STs in Grade A, B, C of State Govt.services, but in Grade D, their representation was adequate. Also, the under Reservation Act 2018 the reservation in promotion would be allowed until the SCs/STs representation reaches 15% & 3% respectively.

Efficiency: Justice Chandrachud criticized the predominant merit-based approach to maintaining administrative efficiency. He opined that the representative notion of efficiency is congruent with the policy of consequential seniority.

The court opined that court’s power of Judicial Review was limited as the area of the reservation lies within the domain of executive and legislature. The court could only strike down the legislation if Ratna Prabha Committee had relied on extraneous or arbitrary considerations. 

Submitted By: Prabhjot Kaur

Prostitution rackets were being held in hotels and restaurants in which women were putting up horrid and obscene dance shows. It was also found that the girls working for these dance bars in Maharashtra didn’t actually belong to Maharashtra. Having such practices and sheltering these criminals in hotels adversely impacted society.
The Bombay Police Act, 1951 was amended in 2005 to protect morality, the dignity of women and reducing their exploitation which also included trafficking of minor girls. Section 33A was inserted, that prohibited all types of dances in bars or eating houses.

The Indian Hotel and Restaurant Association filed a writ petition before the Bombay High Court challenging Section 33A of The Bombay Police Act, 1951 on the grounds that such prohibition:
a) It discriminates against women working in such eateries and bars and those employed to dance in three-star hotels and government establishments.
b) Interferes with the right to work and right to earn a livelihood. Thus, it is violative of the Indian Constitution.

The Court held that Section 33A violated Article14 (Equality) and Article19 (1) (g) (Right to Work) of the Indian Constitution.

The Maharashtra government filed an appeal before The Supreme Court which stated a request on the ban of all dances which are obscene and derogatory to the dignity of women to ensure that the right to working for women is not interfered with and there is no adverse impact on society.

The Supreme Court upheld the judgment of Bombay High Court. It stated in its the judgment that the elite has higher standards of decency, morality or strength of character than the others who have to content themselves with inferior quality in the dance bars. It declared that Section 33A violates Article 19(1) (g) on the ground that it interferes with the right of women to work and that it further resulted in forcing some women into prostitution. The Court also urged the government to take affirmative action to ensure the safety of the women working as bar dancers.

Submitted By: Khushi Maheshwari