CONTENT

List of Case Laws

Constitutional Law
● Common Cause v. Union of India Miscellaneous Application 1699/2019 in
Writ Petition (C) 215/2005
● Vivek Narayan Sharma v. Union of India ( Demonitisation Case)
● Union of India v. Union Carbide Corporation, 2023 SC 264 ( Bhopal gas
Tragedy)
● In re, 2023 SC 1647 ( Article 370)
● Supriyo v. Union of India, 2023 SC 134
● Shilpa Sailesh v. Varun Sreenivasan, 2023 SC 544 ( Irrevertible breakdown
theory)
● Anoop Baranwal v. Union of India, 2023 SC 216
● Jarnail Singh v. Lachhmi Narain Gupta, 2022 SC 96
● The Chief Election Commissioner of India vs. M.R. Vijayabhaskar and Ors.
(06.05.2021 - SC): MANU/SC/0341/2021
● Laxmibai Chandaragi B. and Ors. vs. The State of Karnataka and Ors.
(08.02.2021 - SC): MANU/SC/0068/2021
● Mohammad Salimullah and Ors. vs. Union of India (UOI) and Ors.
(08.04.2021 - SC): MANU/SC/0246/2021
● Jaishri Laxmanrao Patil and Ors. vs. The Chief Minister and Ors. (05.05.2021
- SC): MANU/SC/0340/2021
● Kerala Union of Working Journalists vs. Union of India (UOI) and Ors.
(28.04.2021 - SC): MANU/SC/0332/2021
● Justice K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors.
(26.09.2018 - SC
● Supreme Court of India v. Subhash Chandra Agarwal, (2020) 5 SCC 481
 Criminal Law
● Charan Singh v. State of Uttarakhand, 2023 SC 454
● Smruti Tukaram Badade v. The State Of Maharashtra and Anr., Citation: 2024
SC 43
● Rambabu Singh Thakur, (2020) 3 SCC 733
● Paramvir Singh Saini v. Baljit Singh (2020)
● Re Exploitation Of Children In Orphanages In State Of Tamil Nadu V/S
Union Of India
● Amish Devgan v. Union of India (2020)
● Anversinh @ Kiransinh Fatesinh v. State of Gujarat
● Manik Das v. Narcotics Control Bureau, 2022 Cal 195
● Rahul Gandhi v. Purnesh Ishwarbhai Modi & Anr. Special Leave Petition
(Criminal) No. 8644 of 2023
● Mohd Naushad v. State (Govt. of NCT of Delhi) | Criminal Appeal No. 1269
of 2013
● Arup Bhuyan v. State of Assam, (2023) 8 SCC 745
● Anuradha Bhasin v. Union of India 2020
● Shilpa Mittal v. State of NCT Delhi and Ors. (2020)
● Shivaji Chintappa Patil v. State of Maharashtra (2021) 5 SCC 626
● Sudha Singh v. State of UP & Anr.
● Selvi vs. State of Karnataka AIR 2010 SC 1974, (2010) 7 SCC 263
● Shanti Bhushan vs Supreme Court Of India Through Its Registrar, 2018
(Master of roster case)
● Mohd. Akhtar v. State of Jammu & Kashmir, 2018 SC 494
 Constitution Law
Introduction to Public Interest Litigation (PIL) in India

Public Interest Litigation (PIL) signifies a chief instrument through which the
concept of judicial activism is established, facilitating the exercise of writ
jurisdiction by high courts or the Supreme Court of India to safeguard the
fundamental and legal rights of the citizens of India. The concept of PIL emerged in
the United States of America for the first time, but as far as India is concerned, it
emerged in the 1980s with pioneers such as Justice P.N. Bhagwati and Justice
Krishna Iyer. As the name suggests, PIL is meant for safeguarding public interest
affected by issues like pollution, terrorism, road safety, etc. A key requirement of
PIL is that the party filing it must do so in the public interest and must satisfy the
court on similar grounds.

Significance of PIL in India

The primary reason for the introduction of PIL in India is to make justice accessible
to the poor and marginalized. It has become an essential tool for providing justice to
those who cannot file petitions on their own due to illiteracy, illegal detention,
poverty, and other barriers. PIL has made the Indian judicial system more active and
increased the interdependence of the judiciary, allowing courts to suo motu initiate
matters. PIL provides justice not just to individuals but to entire classes of aggrieved
persons. Moreover, PIL cases are given preference over other ordinary cases as they
relate to a large number of people.

Evolution of PIL through Judicial Precedents

Understanding PIL cannot be limited to subjective discussions; hence, a look at

judicial precedents is necessary to understand its origin and growth in India.

Mumbai Kamgar Sabha v. Abdulbhai Faizullabhai [1976 AIR 1455, 1976 SCR
(3) 591]

This case is considered one of the most significant cases of PIL. In the 1960s, the
Mumbai Kamgar Sabha, a union of workers in Maharashtra, filed a petition against
their employer, Abdulbhai and Faizullabhai, who had stopped the yearly bonus of
the workers since 1965. Justice K. Iyer held that as the matter affected many people
from the weaker section, the Union was eligible to file a petition on their behalf. This
case relaxed the principle of locus standi for the first time, leading to the origin of
PIL in India.

Hussainara Khatoon & Ors v. Home Secretary, Bihar [1979 AIR 1369, 1979
SCR (3) 532]

In 1979, an article about Bihar’s undertrial prisoners highlighted their prolonged

hardships and illegal detention for minor offenses. Advocate Hingorani filed a writ
petition on behalf of 17 undertrial prisoners, including Hussainara Khatoon, against
the State of Bihar. The Supreme Court, with a bench comprising Justices P.N.
Bhagwati, R.S. Pathak, and A.D. Koshal, ruled in favor of the petitioners, ordering
the release of the prisoners and including the right to a speedy trial under Article 21,
thereby broadening its scope.

Fertilizer Corporation Kamgar v. Union of India & Ors [1981 AIR 344]

Until 1981, courts had dealt with PIL but had not explicitly defined it. In Fertilizer
Corporation Kamgar v. Union of India & Ors [1981], the Supreme Court explained
the term “Public Interest Litigation.” The Court observed that law acts as a social
auditor, and PIL, as part of participatory justice, must be liberally received at the
judicial doorstep. This means the relationship between the parties in PIL is not
hostile as in traditional cases.

Pt. Parmanand Katara v. Union of India & Ors [1989 AIR 2039]

In this case, a petitioner filed a PIL based on a newspaper report about a person who
died after being refused admission by hospitals due to medico-legal constraints. The
Court ruled that it is the State's duty under Article 21 to protect lives, and medical
professionals should be allowed to perform their duties without legal hindrances.
This case exemplifies participatory justice, where entities cooperate for public
welfare.
S.P. Gupta v. Union of India & Anr [1989 AIR 149]

This landmark case established that any person acting pro bono publico and not a
meddlesome interloper can approach the high courts and the Supreme Court if
constitutional or fundamental rights of a class of people are violated. The court
admitted petitions filed by advocates on behalf of the public, thereby fully
establishing the relaxation of locus standi in PIL cases. This judgment made PIL a
crucial tool for seeking justice in cases of legal injury.

Criticism of Public Interest Litigation

Despite its importance, PIL has been exploited over time. Frivolous petitions are
filed under the guise of public interest, creating delays and hindrances in legal
proceedings. Some individuals use PIL for publicity, wasting the court’s time.
Advocates and political parties also misuse PIL for their agendas, increasing the
burden on the judicial system.

Since the 1970s, the concept of PIL has evolved significantly. Even a letter was
considered a PIL in cases like Mrs. Veena Sethi vs State of Bihar & Ors. [AIR 1983
SC 339]. The objective of PIL is to provide equal access to justice, leading to the
relaxation of the traditional view of locus standi. Any person acting pro bono publico
can file a PIL on behalf of an aggrieved class, and courts can suo motu initiate PILs,
as seen in the Gujarat Morbi Bridge Tragedy. However, to prevent the exploitation
of PIL, courts must be cautious in admitting petitions, ensuring they serve the public
interest and not personal interests.

Additional Cases and Developments in PIL

Vishaka & Ors v. State of Rajasthan & Ors [1997 (6) SCC 241]

In this landmark case, the Supreme Court of India laid down guidelines for
preventing sexual harassment at the workplace, known as the Vishaka Guidelines.
This case demonstrated how PIL could be used to address broader social issues and
establish legal frameworks in the absence of specific legislation.

M.C. Mehta v. Union of India & Ors [1987 SCR (1) 819]
This series of cases filed by environmental activist M.C. Mehta led to significant
judgments on environmental protection. The Supreme Court directed the closure and
relocation of hazardous industries, ordered measures for pollution control, and
established the principle of absolute liability for environmental harm.

People’s Union for Democratic Rights v. Union of India [1982 AIR 1473]

This PIL focused on the exploitation of laborers, particularly regarding the non-
payment of minimum wages. The Supreme Court recognized the right to minimum
wages as a fundamental right under Article 21, emphasizing the state's duty to ensure
fair labor practices.

Olga Tellis & Ors v. Bombay Municipal Corporation & Ors [1985 AIR 180]

In this case, pavement dwellers challenged their eviction by the Bombay Municipal
Corporation. The Supreme Court held that the right to livelihood is an integral part
of the right to life under Article 21. This judgment underscored the importance of
balancing developmental activities with the protection of fundamental rights.

Right to Education (RTE) Case: Unni Krishnan, J.P. & Ors v. State of Andhra
Pradesh & Ors [1993 (1) SCC 645]

This case led to the recognition of the right to education as a fundamental right under
Article 21. The Supreme Court directed the state to ensure free and compulsory
education for children up to 14 years of age, paving the way for the Right to
Education Act.

The Role of Media in PIL

The media has played a crucial role in highlighting issues that lead to PILs.
Investigative journalism and public awareness campaigns often bring social
injustices and government inaction to light, prompting legal action. For instance, the
Bihar undertrial prisoners' case gained attention due to a newspaper article,
showcasing the power of media in facilitating judicial intervention.

Suo Motu PILs by Courts

Courts in India have the power to initiate PILs suo motu, based on media reports or
public grievances. This proactive approach ensures timely intervention in matters of
public interest without waiting for an individual to file a petition. Examples include
environmental issues, human rights violations, and disaster management cases.

Future of PIL in India

The future of PIL in India hinges on balancing its benefits with preventing misuse.
To maintain the integrity of PIL, courts must:

1. Scrutinize Petitions: Ensure that petitions serve genuine public interests and
are not filed for personal gains or publicity.
2. Impose Costs on Frivolous Petitions: Deterrent measures, such as imposing
costs on those filing frivolous PILs, can reduce misuse.
3. Promote Legal Awareness: Educating the public about the purpose and
proper use of PIL can foster responsible filing of petitions.
4. Strengthen Judicial Mechanisms: Enhancing the capacity of courts to
handle PILs efficiently will prevent backlogs and ensure timely justice.

The Role of Justice P.N. Bhagwati in Public Interest Litigation (PIL) in India

Justice P.N. Bhagwati is a towering figure in the Indian judiciary and is often
credited with pioneering the concept of Public Interest Litigation (PIL) in India. His
judicial philosophy and landmark rulings have significantly contributed to the
evolution of PIL as a tool for social justice and judicial activism. Below is a detailed
examination of Justice Bhagwati's role and contributions to the development of PIL
in India.

Early Life and Career

Born on December 21, 1921, in Gujarat, Justice Prafullachandra Natwarlal Bhagwati

was an illustrious scholar and jurist. He completed his education at Elphinstone
College, Bombay, and later studied law at Government Law College, Bombay. After
a successful career as an advocate, he was appointed as a judge of the Gujarat High
Court in 1960 and subsequently became the Chief Justice of Gujarat High Court. In
1973, he was elevated to the Supreme Court of India, where he served until his
retirement in 1986, including a term as the Chief Justice of India from 1985 to 1986.
Contributions to Public Interest Litigation

Justice Bhagwati's tenure in the Supreme Court was marked by a series of

groundbreaking decisions that expanded the scope and reach of PIL. His judicial
activism and innovative use of PIL transformed the Indian judiciary's role in
addressing social injustices and protecting fundamental rights. Here are some key
contributions and landmark cases associated with Justice Bhagwati:

Broadening Access to Justice

Justice Bhagwati played a pivotal role in broadening the concept of locus standi,
which traditionally restricted the right to file petitions to those directly affected by
an issue. Under his leadership, the court allowed any public-spirited individual or
organization to file a PIL on behalf of those who were unable to approach the court
themselves. This relaxation of locus standi was crucial in making justice accessible
to marginalized and disadvantaged groups.

Landmark Judgments

1. Hussainara Khatoon v. State of Bihar (1979): This case highlighted the

plight of undertrial prisoners in Bihar, many of whom had been detained for
years without trial. Justice Bhagwati's judgment emphasized the right to a
speedy trial as a fundamental right under Article 21 of the Constitution. This
case not only led to the release of numerous undertrial prisoners but also
underscored the judiciary's proactive role in safeguarding human rights.
2. S.P. Gupta v. Union of India (1981): Also known as the Judges' Transfer
Case, this judgment is notable for its expansive interpretation of PIL. Justice
Bhagwati asserted that any member of the public could approach the court for
redressal of public wrongs or enforcement of public duties. This case
reinforced the notion that the judiciary must act as a guardian of public
interest.
3. People's Union for Democratic Rights v. Union of India (1982): In this
case, also known as the Asiad Workers' Case, Justice Bhagwati's judgment
focused on the exploitation of laborers and their right to a dignified life. The
court held that non-payment of minimum wages violated the fundamental
 rights of workers under Article 21. This case further established the judiciary's
role in addressing social and economic injustices through PIL.
4. Bandhua Mukti Morcha v. Union of India (1984): This case dealt with the
issue of bonded labor. Justice Bhagwati's judgment mandated the
identification, release, and rehabilitation of bonded laborers, emphasizing the
need for effective enforcement of laws prohibiting bonded labor. The case
illustrated how PIL could be used to tackle systemic social issues and uphold
human dignity.

Human Rights and Social Justice

Justice Bhagwati's approach to PIL was deeply rooted in his commitment to human
rights and social justice. He believed that the judiciary must actively intervene to
protect the rights of the poor and marginalized. His judgments often reflected a
compassionate and empathetic understanding of the challenges faced by
disadvantaged groups.

Judicial Activism

Justice Bhagwati is widely regarded as a proponent of judicial activism. He viewed

the judiciary as an instrument of social change and believed that judges must
interpret the law in a manner that promotes justice, equality, and fairness. His
activism was instrumental in transforming the Indian judiciary into a more dynamic
and responsive institution capable of addressing contemporary social issues.

Justice Bhagwati's contributions to PIL have left a lasting legacy on the Indian legal
system. His innovative use of PIL has empowered countless individuals and
organizations to seek judicial redress for a wide range of issues, from environmental
protection to labor rights and consumer rights. The principles he established continue
to guide the judiciary in its efforts to ensure justice for all.

Justice P.N. Bhagwati's role in the development of Public Interest Litigation in India
cannot be overstated. His visionary leadership and pioneering judgments have
fundamentally altered the landscape of Indian jurisprudence, making the judiciary
more accessible and responsive to the needs of the common people. Through his
efforts, PIL has become a powerful tool for social justice and a testament to the
judiciary's role as a guardian of constitutional rights and public interest. Justice
Bhagwati's legacy continues to inspire judges, lawyers, and activists in their quest
for a more just and equitable society.

Conclusion

Public Interest Litigation has profoundly impacted the Indian legal landscape,
providing a voice to the marginalized and holding the state accountable. By evolving
with judicial precedents and balancing the need to prevent misuse, PIL continues to
be a vital tool for ensuring justice and protecting public interest in India. The
judiciary, media, and civil society must work collaboratively to uphold the true spirit
of PIL, ensuring it remains a beacon of hope for the underprivileged and a
mechanism for societal change.

Can Right to Die be a Fundamental Right under Article 21?

The right to life and personal liberty is one of the most significant fundamental rights
that helps in the exercise of other fundamental rights. It also acts as a facilitator of
other fundamental rights, including the right not to be killed by another person.
However, the question arises whether a person’s right to life includes the right to
die. This question was answered in the case of Common Cause v. Union of India
(2018). In this case, the petition was filed by a registered society named Common
Cause.

The society demanded that the ambit of Article 21 of the Constitution of India be
extended to include the right to die with dignity as a component of the right to live
with dignity. It also requested guidelines for the State to create suitable policies that
would allow people with declining health or terminal illnesses to execute living wills
or advance medical directives.

The Supreme Court of India, after carefully examining Indian and international laws
and precedents, notably the ruling in K.S. Puttaswamy and Anr. v. Union of India
and others (2017), determined that the right to die with dignity is a fundamental
right under Article 21 of the Indian Constitution. Additionally, the Court approved
the application of advanced medical directives, emphasizing that through this
process, it can be ensured that the individual had a dignified death as his or her
individual autonomy is protected.
The Court went into great length about the evolution of the right to privacy, pointing
out that it is necessary for maintaining human dignity, without which freedom cannot
be realized. The right to privacy was also seen as essential to maintaining one’s
physical integrity, freedom of choice, and individuality. Additionally, the decision
of a court in the United States of America in Re Quinlan (1976) was taken into
consideration by the Supreme Court of India in evaluating government interest and
privacy protection. The case showed that as physical integrity was increasingly
damaged and possibilities of recovery decreased, the right to privacy expanded and
state interest diminished.

The Supreme Court of India further observed that along with violating the principle
of informed consent, it also violates the patient’s right to individual autonomy and
integrity, which the Apex Court has recognized as a component of their right to
privacy. Treatment should never be continued against the patient’s desires.

The term “euthanasia” is derived from two Greek words “eu,” which means “good,”
and “Thanatos,” which means death. Euthanasia is the practice of ending a patient’s
life to relieve their suffering. Normally, the patient in concern would have a serious
illness or be in excruciating pain.

Euthanasia would allow the individual to have a comparatively ‘good death,’ as

opposed to sentencing them to a slow, excruciating, or undignified demise. There
are different types of euthanasia, namely:

Active and Passive Euthanasia: Active euthanasia refers to the act of killing an
individual by employing any active means of death. Some instances of active
euthanasia involve injecting an individual with a fatal drug dose, leading to death.
Due to the means employed under active euthanasia, it is sometimes also referred to
as “aggressive euthanasia.” Passive euthanasia refers to a process where an
individual is intentionally obstructed from living life. Whenever any artificial life
support is withdrawn, such as a ventilator or feeding tube, leading to the death of an
individual, it comes under the ambit of passive euthanasia.

Voluntary and Involuntary Euthanasia: Voluntary euthanasia refers to ending the

life of the individual in question with their consent. On the other hand, involuntary
euthanasia refers to ending the life of the individual in question without his or her
consent. Cases of involuntary euthanasia are quite popular among nations with low
per capita income. When they cannot afford to pay for the treatment of their relatives,
they opt for involuntary euthanasia to avoid hefty payments.

Euthanasia on the Basis of Administration

On the basis of administration, euthanasia can be divided into two different types,
namely – self-administered euthanasia and euthanasia administered by others. In
self-administered euthanasia, the individual in pain himself or herself administers
the means of ending his or her life. On the other hand, in euthanasia administered by
others, an individual other than the patient is appointed to administer the means of
ending the life of the sufferer. Assisted euthanasia refers to ending the life of an
individual with the assistance of a medical professional.

The aforementioned methods of euthanasia can be combined in a wide variety of

ways, and many of them are morally debatable. Various nations permit some forms
of assisted suicide, such as voluntary or passive forms of euthanasia.

Mercy Killing: The phrase “mercy killing” typically refers to an active, involuntary,
or non-voluntary form of euthanasia that is delivered by a third party. To put it
another way, someone intentionally ends the life of a patient to put an end to the
misery of the individual suffering.

Physician-Assisted Suicide: “Physician-assisted suicide” refers to active,

voluntarily performed assisted suicide in which a doctor supports the patient in
ending his or her life. The patient is given the means necessary to commit suicide by
the doctor, such as ample medication.

In addition to being acrimonious, the euthanasia debate also raises several legal,
psychological, sociological, and economic issues. Since the dawn of time, it has been
a problem for humanity and has taken center stage at the nexus of bioethics and
jurisprudence. While euthanasia supporters cite the freedom of self-determination
and the absurdity of extending a life devoid of purpose and dignity, opponents
contend that palliative care should take priority and that the legalization of
euthanasia would violate the idea of the sanctity of life.
Therefore, the majority of countries have made an effort to strike a balance between
these different perspectives and have only allowed passive euthanasia, or the
removal of life support, with sufficient safeguards for people who are critically ill or
in a persistent vegetative condition. Many nations, including the United Kingdom of
Britain, Colombia, Canada, Luxembourg, the Netherlands, Switzerland, Belgium,
and Singapore, also permit the implementation of advance directives with the
necessary protections.

P. Rathinam v. Union of India (1994): In this case, Section 309 of the Indian Penal
Code, 1860, was challenged on the ground of being in violation of Article 21 of the
Constitution of India. Concerning the then prevalent situation, the court bench led
by Justice Banwari Lal Hansaria held that Section 309 of the Indian Penal Code,
1860 was in violation of Article 21 and hence was declared unconstitutional. Also,
the Court decriminalized assisted suicide.

Gian Kaur v. State of Punjab (1996): In this case, the decision in the case of P.
Rathinam v. Union of India (1994) was challenged before the Supreme Court. The
five-judge Bench led by Justice Jagdish Sharan Verma held that the decision in the
previous case was wrong. The Court upheld the constitutionality of Section 309 of
the Indian Penal Code, 1860. The Court stated that, considering Article 21 of the
Indian Constitution, the right to life is included in it. However, when a question
arises regarding the right to die, the ambit of Article 21 is not wide enough to include
the right to die. Moreover, the Court also quashed the legitimacy of passive
euthanasia as well as assisted suicide.

Aruna Ramachandra Shanbaug v. Union of India (2011): This case was the most
significant instance that marked a breakthrough in the legislation regarding
euthanasia. Passive euthanasia was legalized, and the Smt. Gian Kaur’s case rulings
were entirely overruled. The fundamental distinction between this case and the
common cause case, which might be seen as a complement, is that in the former,
passive euthanasia was made legal, whereas, in the latter, the right to die with dignity
was essentially incorporated into the right to live with dignity.

Airedale National Health Service Trust v. Bland (1993): This decision, which
was determined in the House of Lords of the United Kingdom, is widely regarded as
setting the standard for passive euthanasia as well as euthanasia globally.
Analysis of the Procedure and Guidelines Laid Down by the Court Regarding
the Authorization of an Attorney and the Issuing of Advance Medical Directives
in 2018 Case:

The right to die with dignity, which is found in Article 21, has been rooted by Justice
Misra in light of the aforementioned international jurisprudence. He has established
various protections and processes with regard to the advance medical directives and
attorney authorizations, which have been approved and reinforced by other judges
on the bench. He views this as a question of interpretation of the Constitution which
the Court is obligated to do. The regulations provide that only an individual above
the age of 18 years, of sound mind, who is capable of communicating, reacting, and
comprehending the repercussions of signing the document, and who has full
information and understanding, may freely sign it.

The declaration must indicate informed permission and clearly and indisputably
specify when medical care may be discontinued, or additional treatment may not be
administered in an effort to extend life. It must also include a clause that allows the
executor to revoke it, as well as the name of a caretaker who will give permission to
refuse or discontinue medical care in compliance with the advance medical directive.
The most recent advanced medical directive will take effect if there are multiple
ones. However, the rules do not cover circumstances when the directive is unclear.
The paper must be officially approved by a Judicial Magistrate of First Class, who
is expected to document approval as to the informed consent and voluntary
participation of the executor, and two attesting witnesses, who should ideally be
unbiased, must be present. A tangible copy of the document and a digital copy must
be stored with the JMFC in order to prevent tampering in the future, and another real
and virtual copy must be stored with the Registrar of the relevant District Court.
Additionally, the municipality or panchayat, if applicable, is required to keep a copy.

If family members are uninformed, they must be informed, and if there is a family
doctor, he must also be notified. Only after the person is terminally sick and the
doctor has verified the document’s validity with the JMFC, only then can the
document be put into action. Officials at the hospital are compelled to take action if
the practitioner has a philosophical or religious disagreement. The doctor is required
to notify the hospital administration of the members of the Medical Board, which
will be composed of the head of the concerned department and three specialists from
different fields (such as pharmaceuticals, urology, haematology, etc.) who have
expertise in emergency departments and have been practicing for at least 20 years
overall.

The Board will then examine the patient while the designated guardian is present,
and it will make a determination regarding whether or not the directives in the
document can be followed. If this preliminary opinion is positive, it will be
forwarded to the jurisdictional collector, who will then establish a new medical
board with the Chief District Medical Officer serving as chairman and three
experienced practitioners from diverse specialties with at least 20 years of
experience, excluding the doctors who were on the preceding Board. If, after
examining the individual, this Board agrees with the hospital’s board; the decision
will be reported to the JMFC. Next, the JMFC will pay a visit to the patient as soon
as possible to approve the implementation of the document. The document may be
revoked by the executor at any time before it is put into effect by putting it in writing.
It is possible for the executor, family, or even the practitioner to file a writ petition
under Article 226 before the High Court in situations when the medical board denies
authorization. In these situations, the Chief Justice of the stated court will need to
appoint a division bench to make a decision. The High Court would be authorized
to establish an impartial medical board with the same credentials as those listed
above, and it would have a duty to make a decision quickly and in the patient’s best
interests.

Furthermore, there is no requirement to follow unclear instructions. As a result, the

Court has established thorough guidelines that are applicable until Parliament passes
relevant legislation. It is necessary to ensure that there are no gaps in the application
of these rules in light of the precedents in nations like the Netherlands, where
advance directives have been legal for a very long time.

Simplification of Procedure for Withholding Life Support for Terminally ill

Patients

Overview:

● The Supreme Court of India has simplified the procedure for passive
euthanasia, modifying the guidelines established in the 2018 judgment.
 ● A detailed order with specific directions is awaited.

2018 Euthanasia Judgment:

● A 5-Judge Constitution Bench (Dipak Misra, C.J., A.K. Sikri, D.Y.

Chandrachud, Ashok Bhushan, and A.M. Khanwilkar, JJ.) unanimously held
that the right to die with dignity is a fundamental right.
● Separate but concurring opinions were provided by the judges.
● The judgment allowed passive euthanasia with a procedure for execution of
advance directives and provided guidelines for cases with and without
advance directives.

Petition and Applications:

● In 2019, the Indian Society for Critical Care filed a miscellaneous application
requesting modifications to the 2018 guidelines, citing the inconvenience and
complexity of the procedures.
● In 2023, another 5-Judge Constitution Bench (K.M. Joseph, Ajay Rastogi,
Aniruddha Bose, Hrishikesh Roy, and C.T. Ravikumar, JJ.) heard the
application to modify the guidelines from Common Cause v. Union of India
(2018).

Common Cause Petition (2005):

Filed under Article 32 of the Constitution by a registered society named Common

Cause.

Prayed for:

● Declaring the right to die with dignity as a fundamental right under Article 21.
● Directing the government to adopt suitable procedures for terminally ill
patients to execute a living will.
● Appointing a committee to issue guidelines on living wills.

2014 Referral:
 ● A 3-Judge Bench referred the matter to a larger bench to settle inconsistencies
between earlier cases (Aruna Ramachandra Shanbaug v. Union of India, 2011
and Gian Kaur v. State of Punjab, 1996).

2018 Judgment Details:

● The 5-Judge Bench laid down principles for the execution of advance
directives.
● Provided guidelines for passive euthanasia in cases with and without advance
directives, under Article 142 of the Constitution.

Modifications Sought in 2023:

Senior Advocate Arvind Datar highlighted the cumbersome procedures and

suggested simplifications, including:

● Safety measures during recording of advance directives to prevent

manipulation.
● Clarity on execution, content, recording, and implementation of advance
directives.
● Streamlining the procedure involving the Judicial Magistrate and the Medical
Board.
● Reducing the required experience of doctors in the Medical Board from 20
years to 5 years.

Court's Observations:

● The procedure from the 2018 judgment was rarely followed due to its
complexity.
● The Court acknowledged the need to simplify the process while retaining
necessary safeguards.
● Discussions included modifying the review process and reducing the time
frame for decisions from the Medical Boards.

Current Status:

● The Supreme Court simplified the process, allowing a two-tiered process for
authorizing passive euthanasia.
 ● The new guidelines remove the difficult three-tiered procedure involving a
judicial magistrate’s approval.
● Detailed directions are awaited.

Case Details:

● Case Name: Common Cause v. Union of India

● Application Number: Miscellaneous Application 1699/2019 in Writ Petition
(C) 215/2005

Key Points:

1. Right to Die with Dignity: Recognized as a fundamental right.

2. Living Will: Simplified procedures for terminally ill patients to execute and
implement their living wills.
3. Medical Boards: Modified guidelines for the constitution and functioning of
Medical Boards.
4. Judicial Oversight: Reduced the involvement of judicial authorities to
streamline the process.
Demonetisation Case

On November 8, 2016, the Central Government exercised its powers under sub-
section (2) of Section 26 of the RBI Act to issue a notification declaring that
specified bank notes (SBNs) of ₹500 and ₹1000 denominations would cease to be
legal tender from November 9, 2016.

On December 30, 2016, the Specified Bank Notes (Cessation of Liabilities)

Ordinance, 2016, was promulgated by the President of India. Subsequently, the
Specified Bank Notes (Cessation of Liabilities) Act, 2017, was enacted and received
the assent of the President of India on February 27, 2017.

Immediately after the notification was issued, several writ petitions challenging the
demonetization policy were filed in the Supreme Court and various High Courts. As
a result, all related matters were transferred to the Supreme Court and referred to a
larger bench for consideration.

Supreme Court Verdict on Demonetisation

Case: Vivek Narayan Sharma v. Union of India

Verdict Date: January 2, 2023
Bench: S. Abdul Nazeer, B.R Gavai, A.S. Bopanna, V. Ramasubramanian, B.V.
Nagarathna, JJ.
Decision: 4:1 majority upheld the 2016 demonetisation scheme.

Majority Opinion (Justice B.R Gavai)

Background:

November 8th, 2016: The Union government issued a notification declaring that all
₹500 and ₹1000 notes were no longer legal tender and discontinued their circulation.
This measure was known as ‘demonetization’.

November 9th, 2016: Advocate Vivek Narayan Sharma challenged the

constitutionality and the implementation of the demonetization scheme before the
Supreme Court of India.
Six years after the country underwent demonetisation, a move that faced severe
criticism for being poorly planned, unfair, and unlawful, the Constitution Bench of
S. Abdul Nazeer, B.R Gavai, A.S. Bopanna, V. Ramasubramanian, B.V.
Nagarathna, JJ., has upheld the Centre’s 2016 demonetisation scheme in a 4:1
majority decision. The Bench held that demonetisation was proportionate to the
Union’s stated objectives and was implemented reasonably. While Justice Gavai
authored the majority opinion for himself and Justices S.A. Nazeer, A.S. Bopanna,
and V. Ramasubramanian, Justice Nagarathna dissented, asserting that despite
demonetisation being well-intentioned and well-thought-out, its execution was
improper and unlawful. The verdict spanned 382 pages, addressing multiple
complex issues.

Initially, the Supreme Court had framed nine questions on 16.12.2016 to be decided
by a larger bench. However, the Constitution Bench rephrased these into six key
issues: whether the power under Section 26(2) of the Reserve Bank of India (‘RBI’)
Act, 1934, could be restricted to one or some series of banknotes and not all; whether
the power under Section 26(2) of the RBI Act amounted to excessive delegation;
whether the impugned notification dated 08-11-2016 was flawed in decision-
making; whether the notification met the test of proportionality; whether the period
for exchanging notes was unreasonable; and whether the RBI had independent
power under Section 4(2) of the Specified Bank Notes (Cessation of Liabilities) Act,
2017 (‘2017 Act’) in isolation from Sections 3 and 4(1).

Majority Opinion

Issue 1: ‘Any’ Series of Notes under Section 26(2) of the RBI Act – Interpreted

The policy underlying Section 26 of the RBI Act empowers the Central Government,
upon the Central Board's recommendation, to effect demonetisation. This can apply
to any series of banknotes of any denomination, encompassing management and
regulation of currency. Demonetisation is thus a part of this regulatory power. The
Central Government may use this power when necessary, considering factors with a
reasonable nexus to the objective. The Court observed that a restrictive interpretation
of Section 26(2) could lead to anomalies, such as demonetising 19 series of a
denomination while one series remains, causing chaos. The argument that previous
plenary legislations (in 1946 and 1978) necessitate a restrictive interpretation was
rejected. The word “any” thus includes “all” series under Section 26(2).

Issue 2: Excessive Delegation

The RBI’s role in currency management and monetary policy is well-recognised.

The decision under Section 26(2) must be based on the Central Board’s
recommendation, an inherent safeguard. There is adequate guidance from the
statute’s subject matter and other provisions for the delegatee when exercising these
powers.

Issue 3: 08.11.2016 Notification – Flawed Decision-Making

After reviewing records, including communications between the Department of

Economic Affairs and the RBI, meeting minutes, and Cabinet notes, the Court found
that relevant factors were considered in recommending the withdrawal of legal
tender. The RBI prepared a draft scheme to implement demonetisation non-
disruptively. Contentions about quorum and independent recommendations were
dismissed as the requisite quorum was met, and there was a consultative process
between the Central Board and the Central Government.

Issue 4: 08.11.2016 Notification – Proportionality

The proportionality doctrine was satisfied using a four-pronged test: the limitation
was for a proper purpose (elimination of fake currency, black money, and terror
financing); demonetisation had a reasonable nexus to these purposes; alternative
measures were difficult to define and beyond judicial review; and the right to
property in banknotes was not taken away, only restrictions were placed on
exchanging old notes, relaxed over time. The restrictions served public interest.

Issue 5: Period for Exchange of Notes

The Court noted that the 1978 Act allowed only three days for note exchange, with
a five-day grace period. The 2016 demonetisation provided 52 days for exchange
and deposit, a reasonable period, not violative of fundamental rights.

Issue 6: RBI’s Independent Power

The RBI’s power under Section 4(2) of the 2017 Act must be read with Sections 3
and 4(1). The Act aims to extinguish liabilities of demonetised notes, providing
clarity and finality. Section 4 incorporates a grace period for genuine cases. Sub-
section (2) cannot be read in isolation but as part of the scheme of Section 4.

Minority Opinion by Justice Nagarathna

Justice Nagarathna dissented on the first three issues, not addressing the last three.
She held that the Central Government could initiate demonetisation of all series of
banknotes, but this could not be recommended by the Central Board under Section
26(2). Demonetisation should be through plenary legislation, not a notification under
Section 26(2). She found the decision-making process tainted by non-exercise of
discretion, with the RBI acting at the government's behest, rendering the notification
unlawful.

Justice Nagarathna acknowledged demonetisation's intention to combat economic

evils but found the execution unlawful on a legalistic analysis. Her judgment applies
prospectively, not affecting actions taken post-notification. [Vivek Narayan Sharma
v. Union of India, 2023 SC 1, decided on 02.01.2023].

Bhopal Gas Tragedy Compensation Case

Case: Union of India v. Union Carbide Corporation, 2023 SC 264

Background of the Bhopal Gas Tragedy

The Bhopal Gas Tragedy involved a pesticide plant operated by Union Carbide India
Limited (UCIL), which manufactured the pesticide carbaryl, chemically known as
1-naphthyl methylcarbamate, under the brand name Sevin. Carbaryl was discovered
by the American company Union Carbide Corporation (UCC), UCIL’s parent
company that held a majority stake in UCIL, with minority stakes held by Indian
banks and the public. UCIL utilized methyl isocyanate (MIC) as an intermediate in
the production of carbaryl, opting for this method despite the existence of other,
more costly production methods. MIC is highly toxic and poses significant health
hazards. Around midnight on 2 December 1984, Bhopal residents near the pesticide
plant began to experience severe irritation and fled the city, but by morning,
thousands had died.
Reasons for the Bhopal Gas Tragedy

The Government of India and various activists attributed the disaster to UCIL’s
disregard for safety norms and inadequate maintenance and safety procedures. Prior
to the leak, the plant’s safety systems for handling the highly toxic MIC were non-
functional. Many valves and lines were in disrepair, and several critical safety
systems, including vent gas scrubbers and the steam boiler for cleaning pipes, were
out of service. The leak occurred in tank E610, which contained 42 tons of MIC
instead of the 30 tons permitted by safety regulations.

On the night of the disaster, water is believed to have entered a side pipe and
subsequently the tank while workers attempted to unclog it. This initiated an
exothermic reaction within the tank, increasing its pressure and resulting in the
release of gas into the atmosphere. By 11:30 PM, workers inside the plant began
feeling the effects of the toxin.

The plant had three safety devices that could have prevented the disaster had they
been operational: a refrigeration system to cool the MIC tank, a flare tower to burn
escaping MIC, and a vent gas scrubber. Unfortunately, the refrigeration system was
not operational, the flare tower was ineffective, and the vent gas scrubber, which had
been turned off, was too small to manage such a large-scale leak. Approximately 40
metric tons of MIC were released into the atmosphere within two hours.

The Bhopal police were informed of the leak by about 1:00 AM. However, the public
largely became aware of the disaster through direct exposure to the gas and by
venturing outside to investigate the commotion. A timely warning advising people
to seek shelter might have mitigated the tragedy’s impact.

Bench Composition: The Constitution Bench comprised Justice Sanjay Kishan

Kaul, Justice Sanjiv Khanna, Justice Abhay S. Oka, Justice Vikram Nath, and Justice
J.K. Maheshwari. The judgment was reserved on 12-01-2023 and delivered on 14-
03-2023, dismissing the curative petition seeking enhanced compensation for the
victims of the Bhopal Gas Tragedy.

Background: In 1984, a hazardous amount of Methyl Isocyanate (MIC) gas leaked

from a pesticide plant operated by Union Carbide Corporation (UCC), causing the
death of thousands and leaving many with temporary and permanent disabilities. In
1989, the Supreme Court passed a settlement order directing UCC to pay US$ 470
million, which was deposited with the Supreme Court Registrar.

Curative Petition (Filed in 2010): The Union of India (UoI) filed the curative
petition as parens patriae of the victims, following a directive from the Union
Cabinet, to claim enhanced compensation. The petition alleged that the quantum of
damages payable had vitiated the Court’s affirmation under the settlement judgment
(Union Carbide Corporation v. Union of India, (1989) 3 SCC 38) and the review
judgment (Union Carbide Corporation v. Union of India, (1991) 4 SCC 584). The
petitioner contended that after a comprehensive review, the impugned judgments
and orders were incorrect based on underlying assumptions of facts and data, which
had vitiated the foundation on which the compensation was awarded.

Court's Observations:

1. Settlement Surplus (2004 Order): The Court noted that, as per its order
dated 19-07-2004, the settlement amount was found to be in surplus of the
actual requirement, and claimants had been compensated reasonably under the
law. Therefore, the position that the settlement amount was sufficient to
compensate the claimants was reinforced.
2. Responsibility of UoI: The Court stated that it was the Union’s own stand
that the Commissioner had adjudicated upon all claims by the procedure
established by law, with the possibility of appeal provided for. The
responsibility was on the UoI, being a welfare state, to make good any
deficiency and take out the relevant insurance policy. However, the Court
expressed surprise that no such insurance policy had been taken out, which
was a gross negligence on the part of the Center and a breach of the direction
made in the review judgment.
3. Validity of Settlement: The Bench emphasized that the Center’s claim for a
top-up had no foundation in any known legal principle. Either a settlement
was valid, or it was to be set aside in cases where it was vitiated by fraud. No
such fraud had been pleaded by the Center; their only contention related to the
number of victims, injuries, and costs that were not contemplated at the time
when the settlement was effective.
4. Environmental Degradation: The Court agreed with UCC’s allegations that
the Union and State governments did not proactively detoxify and
 decommission the site, thereby aggravating the problem. This could not be a
ground to seek the annulment of the compromise, particularly as the
settlement had to reach an expedient resolution.
5. Article 142 Argument: The Court referred to the contention made by the
Attorney General that the method of topping up the settlement amounts should
be devised under Article 142 of the Constitution of India. The Court stated
that this would not be an appropriate course of action or a method to impose
greater liability on UCC than it initially agreed to bear.

Conclusion: The Court ordered that a sum of Rs 50 crore lying with the Reserve
Bank of India be utilized by the Center to satisfy the pending claims, if any, in
accordance with the Bhopal Gas Leak Disaster Act, 1985, and the schemes framed
thereunder. The Court further emphasized the importance of providing closure to the
case, especially in the context of the Indian Judiciary, where delay is almost
inevitable. With these observations, the Court dismissed the Curative Petition.

Judgment Delivery: The judgment was delivered on 14-03-2023 in the case of

Union of India v. Union Carbide Corporation, 2023 SC 264, and was authored by
Justice Sanjay Kishan Kaul.

Article 370, A Temporary Provision : Supreme Court Upholds Abrogation of

Special Status of Jammu and Kashmir

Article 370 of Indian Constitution granted special autonomous status to Jammu and
Kashmir. It was initially a temporary provision that allowed the state to have its
constitution, flag, and considerable autonomy over all matters except defense,
foreign affairs, finance, and communications. This provision was included to
facilitate the state's accession to India in 1947.
Background of Article 370 of Indian Constitution
Article 370 of Indian Constitution was added on 17th October 1949. It was added as
a temporary provision under which the state of Jammu and Kashmir was exempted
from articles of the Indian constitution, and the state was allowed to have its own
constitution. Thereby, Article 370 restricted the legislative powers of the Indian
parliament in the state of Jammu and Kashmir.
N Gopalaswami Ayyangar was the first person to introduce the draft constitution for
Jammu and Kashmir under Article 306 A.
Article 370 gave the constituent assembly of Jammu and Kashmir the authority to
decide on the articles of the Indian constitution that would be applicable in the state
of Jammu and Kashmir.
When the constitution of the state was first drafted, the constituent assembly of the
J and K was dissolved immediately.
The President of India has the authority to change the provisions and scope of Article
370 under Clause 3.
Article 35A also has the genesis from Article 370 only.
Article 35A was first introduced by presidential order in 1954.
The Constituent Assembly of J and K also recommended Article 35a.
This article gave the Legislature of J and K the authority to provide the definition of
the state's permanent residents and also provide them certain exclusive rights and
privileges.
Article 370 appeared in Appendix 1 of the Indian Constitution.
However, on 5th August 2019, with the enactment of the Constitution (Application
to Jammu and Kashmir Order), 2019 Articles 370 and 35A were abrogated from the
Indian Constitution.
Article 370 of Indian Constitution granted special status to the state of Jammu and
Kashmir. It provided the state with the power to have a separate constitution, a state
flag, and autonomy of internal administration.
The purpose of Article 370 was to give Jammu and Kashmir a temporary and
transitional arrangement. This was until the state's constituent assembly determined
the extent to which the Indian Constitution would apply to it. The state assembly had
the authority to recommend the abrogation of Article 370. However, it dissolved
itself without doing so. Hence, the article became a permanent feature of the Indian
Constitution.
The Case on Article 370

The five-Judge Constitution Bench, comprising Chief Justice of India Dr. DY

Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, B.R. Gavai, and Surya
Kant, delivered a unanimous verdict upholding the Union's action abrogating Article
370 of the Constitution and directed the restoration of statehood to Jammu and
Kashmir at the earliest. Three judgments were delivered: one authored by Dr. DY
Chandrachud, CJI on behalf of himself, BR Gavai, and Surya Kant, JJ., while Justice
Kaul and Justice Khanna authored separate but concurring judgments.
The President issued Constitutional Orders (‘CO’) 272 and 273 during the
subsistence of a Proclamation under Article 356(1)(b), abrogating Article 370. Upon
the dissolution of the Legislative Assembly of the State by the Governor under
Section 53(2) of the Constitution of Jammu and Kashmir on 21-11-2018, a report
recommended invoking Article 356. Consequently, the President promulgated the
President's rule on 19-12-2018. CO 272, issued on 05-08-2019, applied all
provisions of the Constitution of India to Jammu and Kashmir, superseding previous
orders and modifying Article 367(4). This change replaced 'Constituent Assembly'
with 'Legislative Assembly' in the proviso to Article 370(3). The Jammu and
Kashmir Reorganisation Bill 2019 was accepted by the Lok Sabha and passed by the
Rajya Sabha. Parliament enacted the Jammu and Kashmir (Reorganization) Act,
2019, bifurcating the State into two Union Territories: Jammu and Kashmir (with a
legislature) and Ladakh (without a legislature). On 06-08-2019, the President issued
CO 273, effectively ceasing the application of Article 370. The Ministry of Home
Affairs issued a notification on 09-08-2019, bringing the Reorganisation Act into
effect on 31-10-2019, abrogating Article 370 and removing the special status of the
State.

The Court noted that the State of Jammu and Kashmir did not possess sovereignty.
Maharaja Hari Singh established a Legislative Assembly called the ‘Praja Sabha’
but retained supremacy over all legislative, executive, and judicial matters. Upon
India's independence, Jammu and Kashmir's sovereignty rested with Maharaja Hari
Singh until the Instrument of Accession (IoA) was signed on 26-10-1947, acceding
to the Dominion of India. The Court clarified that the special provision for Jammu
and Kashmir was not indicative of sovereignty but was necessitated by conditions at
the time and intended to continue until the State could be brought on par with other
States. The Proclamation issued on 25-11-1949 by Yuvraj Karan Singh denoted that
the constitutional relationship between the State and the Union of India would be
governed by the Constitution upon its adoption by the Constituent Assembly. This
reflected the final surrender of sovereignty by Jammu and Kashmir to India.

The Court compared the Preambles of the Constitutions, noting the absence of a
reference to sovereignty in the Constitution of Jammu and Kashmir. It referred to
SBI v. Santosh Gupta (2017), which held that permanent residents do not possess
dual citizenship; they are citizens of the Union of India only. Article 1 of the
Constitution states that India is a Union of States, and Article 370(1)(c) reiterates its
application to Jammu and Kashmir, confirming the merger of the State with the
Union of India.

Regarding the constitutional validity of the Proclamations issued under Article 356
of the Constitution and Section 92 of the Constitution of Jammu and Kashmir, the
Court noted that challenges were raised only after CO 272 and 273 were issued. The
Court opined that the present challenges were unsustainable as they were primarily
to the abrogation of Article 370 and actions taken during President’s rule, not
independently to President’s rule itself. The Court held that the Proclamations'
validity could not be questioned as they were revoked on 31-10-2019.

The Court stated that Article 370 was a temporary provision. It served two purposes:
a transitional purpose for an interim arrangement until the Constituent Assembly of
the State formed and ratified the Constitution and a temporary purpose due to the
special circumstances at the time. The Court's textual reading of Article 370 and Part
XXI of the Constitution, which deals with temporary and transitional provisions,
confirmed this.

Regarding CO 272 and 273, the Court noted that Article 370(3) allowed the
President to declare that Article 370 shall cease to be operative, requiring the
Constituent Assembly's recommendation. However, CO 272 applied the entire
Constitution of India to Jammu and Kashmir, modifying Article 367 by substituting
‘Constituent Assembly’ with ‘Legislative Assembly.’ The Court held that the
President's concurrence with the Union Government to issue CO 272 was not
invalid, as the President could unilaterally notify that Article 370 shall cease to exist.
The Court clarified that the President's exercise of power to issue CO 273 was valid,
concluding the process of integration.

The validity of the Reorganisation Act was upheld, with the Centre assuring that
statehood would be restored to Jammu and Kashmir and that Ladakh's Union
Territory status would remain unaffected. The Court directed the Election
Commission to conduct elections to the Legislative Assembly of Jammu and
Kashmir by 30-09-2024.
The Court concluded that CO 272’s issuance was valid, making all provisions of the
Constitution applicable to Jammu and Kashmir, ceasing exceptions and
modifications. Justice Sanjay Kishan Kaul agreed that Article 370 was a feature of
asymmetric federalism, not sovereignty, and was a transitional provision. Justice
Sanjiv Khanna concurred with his reasoning, emphasizing the need for strong
grounds for converting a State into a Union Territory, impacting federalism.

[Article 370 of the Constitution, In re, 2023 SC 1647, Decided on: 11-12-2023]
Judgments authored by CJI Dr. DY Chandrachud, Justice Sanjay Kishan Kaul, and
Justice Sanjiv Khanna.

LGBT Case Laws

Case: Supriyo v. Union of India, 2023 SC 134

Section 377 of the Indian Penal Code contains provisions relating to unnatural
offences. It was considered one of the most ‘draconian’ provisions in the Indian legal
system when sexual intercourse between individuals of the same sex was
criminalized.

Provisions Under Section 377: According to Section 377, whoever voluntarily

engages in carnal intercourse against the order of nature with any man, woman, or
animal shall be punished with life imprisonment or imprisonment for a term not
exceeding ten years, and shall also be fined. The term “against the order of nature”
is not defined in any source of law. Thus, deciding on the sexual choices of people
was a clear violation of the fundamental rights of the LGBTQIA+ community.
Although same-sex relationships have been decriminalized, crimes like bestiality
and child abuse remain punishable under this Section.

Nature of Section 377 IPC: Section 377 is considered a serious offence, hence, it
is cognizable and non-bailable. It can be tried in the court of a magistrate of first
class.

Constitutional Validity of Section 377: The Constitution of India guarantees

fundamental rights essential in every democracy. The enforcement of laws
restricting sexual choices, purely personal in nature, and integral to one’s autonomy
over their body and freedom of expression, was a serious infringement on the
fundamental rights of Indian citizens. Penalizing sexual intercourse between same-
sex individuals was a prima facie infringement of rights enshrined in Articles 14, 15,
19, and 21 of the Constitution. Section 377 denied equality before the law and
freedom of expression to the queer community, subjected them to societal
discrimination, and infringed upon the right to one's body under Article 21.
Consequently, a series of judgments have addressed the constitutionality of Section
377, resulting from numerous petitions filed across high courts.

Landmark Judgments Leading to Decriminalization: Numerous petitions and PILs

were filed for the decriminalization of Section 377. However, four landmark
judgments are essential to understanding the litigation history around this law:

1. Naz Foundation v. Government of NCT of Delhi (2009):

Facts of the Case: Naz Foundation, an NGO working with HIV/AIDS patients, filed
a writ petition in the Delhi High Court claiming that Section 377 was
unconstitutional and violated human rights. The petition argued that Section 377's
term “unnatural offence” disregards all sexuality except heterosexuality, violating
fundamental rights under Articles 14, 15, 19, and 21. The Delhi High Court initially
rejected the plea in 2003 for lack of locus standi, but the Supreme Court later allowed
it as a PIL.

Issues Involved: Whether Section 377 should be decriminalized on grounds of

violating Articles 14, 15, 19, and 21.

Judgement Delivered: The Delhi High Court ruled that the law infringed upon the
privacy of consenting adults, violating the right to life under Article 21 and equality
under Article 14. Portions of Section 377 were struck down, leaving non-consensual
non-vaginal intercourse and bestiality as crimes. The decision was to remain until
amended by Parliament.

2. Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. (2013):
Facts of the Case: The Naz Foundation decision was appealed to the Supreme Court.
Appellants included individuals and organizations seeking to preserve societal
moral, cultural, and religious values.

Decision Given: The Supreme Court held that Section 377 did not risk arbitrary
enforcement and did not suffer from unconstitutionality. It overturned the Delhi
High Court's decision.

3. National Legal Services Authority v. Union of India (2014):

Facts of the Case: The petition addressed the discrimination and lack of legal
protections for transgender individuals. Petitioners argued that only binary genders
were recognized, violating constitutional rights.

Judgement Delivered: The Court recognized Hijras and eunuchs as ‘third genders,’
maintaining their right to self-identify gender and directed various orders to improve
their conditions.

4. Navtej Singh Johar v. Union of India (2018):

Facts of the Case: Filed by eminent personalities, the petition sought recognition of
the right to sexuality, sexual autonomy, and choice of a sexual partner under Article
21, and a declaration of Section 377’s unconstitutionality.

Judgement Delivered: The Supreme Court noted that Section 377 relied on minority
reasoning, failing to distinguish consensual from non-consensual acts. It examined
the constitutionality under Articles 14, 15, 19, and 21, establishing sexual orientation
as part of the right to privacy. The five-judge bench declared Section 377
unconstitutional regarding consensual adult sexual conduct in private, clarifying that
consent must be free and voluntary.

Supriyo v. Union of India, 2023 SC 1348

The 5-judge Constitution Bench of Dr. DY Chandrachud, CJI, and Justices Sanjay
Kishan Kaul, S. Ravindra Bhat, Hima Kohli, and PS Narasimha wrote four opinions
on the Same Sex Marriage/Marriage Equality matter. They agreed on some points
and disagreed on others. In a 366-page long verdict, all judges unanimously stated
that there was no fundamental right to marry and that the Supreme Court could not
engage in judicial legislation to read words into the Special Marriage Act to make it
gender-neutral. The Court left this process to Parliament. However, there were
disagreements on certain points where Justices Bhat, Kohli, and Narasimha formed
the majority, while CJI Chandrachud and Justice Kaul dissented.

The judgment touched upon various aspects relating to the rights of the LGBTQIA+
community. Below are the broad agreements and disagreements affecting the rights
sought by the petitioners.

Agreements

No Fundamental Right to Marry

All five judges unanimously held that there is no fundamental right to marry. CJI
Chandrachud, in his 247-page verdict, wrote, “The Constitution does not expressly
recognize a fundamental right to marry. An institution cannot be elevated to the
realm of a fundamental right based on the content accorded to it by law. However,
several facets of the marital relationship reflect constitutional values, including the
right to human dignity and the right to life and personal liberty.” Justice Bhat, writing
for himself and Justice Kohli, also endorsed this view, stating, “There cannot be a
per se assertion that there exists an unqualified right to marry which requires
treatment as a fundamental freedom.” Justices Kaul and Narasimha, in their separate
opinions, agreed with this stance.

Gender-Neutral Interpretation of Special Marriage Act

The petitioners argued that if the Court finds a provision contrary to Part III of the
Constitution, it should declare it void or read it down to save it from being declared
void. CJI Chandrachud wrote, “If the SMA is held void for excluding same-sex
couples, it would take India back to a pre-independence era where two persons of
different religions and castes were unable to celebrate love in the form of marriage.
Such a judicial verdict would push the nation back to an era of social inequality and
religious intolerance and would force Article 13 of the Constitution courts to choose
between eradicating one form of discrimination and permitting another. Reading
words into the SMA and other allied laws would essentially enter the realm of the
legislature.” Justice Bhat agreed, stating that the exclusion of non-heterosexual
couples from the SMA cannot be deemed discriminatory. He cautioned against
gender-neutral interpretations that might unintentionally expose women to
vulnerability. All judges agreed that this issue falls within the legislative domain,
not the judiciary.

Transgender Persons and Intersex Persons’ Right to Marry

The Court held that transgender persons in heterosexual relationships and intersex
persons who identify as either male or female have the right to marry under existing
laws, including personal laws regulating marriage.

Committee to Define Entitlements of Queer Couples in Unions

During the arguments, Solicitor General Tushar Mehta assured that the Union
Government would constitute a Committee chaired by the Union Cabinet Secretary
to define the entitlements of queer couples in unions. The Court directed this
Committee to consider the views of all stakeholders, States, and Union Territories,
and to implement its report at the administrative level. Factors to be considered
include: enabling partners in a queer relationship to be treated as part of the same
family for purposes like ration cards and joint bank accounts; consulting family or
next of kin in medical decisions; jail visitation rights; access to the body of a
deceased partner and arranging last rites; and legal consequences like succession
rights, maintenance, financial benefits, and rights from employment.

Disagreements

Right to Enter into a Union

The majority view held that there is a ‘right to relationship’ within Article 21 of the
Constitution, but the entitlement to legal recognition of such a union can only be
through enacted law. Justice Bhat, writing for himself and Justice Kohli, stated that
the Court cannot direct the creation of such a regulatory framework. Justice
Narasimha highlighted that mandating the State to grant recognition to unions would
violate the separation of powers. The minority view by CJI Chandrachud and Justice
Kaul held that restrictions on the right to enter into a union based on sexual
orientation would violate Article 15 of the Constitution. They believed that legal
recognition of non-heterosexual unions would challenge gender roles and aid social
acceptance.

Adoption Rights
The majority agreed that stable homes are not exclusive to married couples and that
single individuals or unmarried couples could also provide love, care, and
commitment to children. However, they could not agree with reading down the law
to include all unmarried couples. Justice Bhat explained that Parliament’s legislative
choice to include only ‘married’ couples for joint adoption arises from the
protections and entitlements flowing from marriage. While acknowledging
discriminatory impacts on queer couples, the majority held that this issue requires
legislative and executive intervention. The minority view by CJI Chandrachud and
Justice Kaul found Regulation 5(3) of the CARA Regulations ultra vires and read it
down to allow unmarried couples, including queer couples, to jointly adopt a child.
They held that the CARA Office Memorandum disproportionately impacted the
queer community and violated Article 15.

Irretrievable Breakdown of Marriage: Decoding Supreme Court Judgment on

Grant of Divorce under Article 142 of Constitution

Case: Shilpa Sailesh v. Varun Sreenivasan, 2023 SC 544

Article 142 of the Constitution of India

Article 142 of the Constitution of India grants the Supreme Court the authority to
ensure that complete justice is delivered in any matter pending before it. This Article
is unique in its scope and does not have a counterpart in most major written
constitutions around the world. The powers conferred under Article 142 are
expansive and designed to allow the Supreme Court to transcend procedural
limitations to achieve just outcomes.

Provisions of Article 142:

Article 142(1) empowers the Supreme Court to pass any decree or make any order
necessary for doing complete justice in any cause or matter pending before it. This
provision is crucial as it allows the Court to address issues comprehensively, without
being restricted by procedural technicalities. Article 142(2) addresses the
enforcement of decrees and orders of the Supreme Court. It provides the Court with
the authority to make necessary provisions for the attendance of persons, the
discovery and production of documents, and the investigation and punishment of
any contempt of the Court.
Significance of Article 142:

The primary significance of Article 142 lies in its objective to ensure that justice is
not thwarted by procedural limitations. The Supreme Court is empowered to go
beyond the confines of statutory provisions to deliver justice, ensuring that equity
and fairness are upheld. This Article gives precedence to equity over strict legal
provisions, allowing the Court to address situations where the application of existing
laws may not provide fair outcomes.

Judicial Interpretations:

The Supreme Court has interpreted and applied Article 142 in various landmark
cases. In the case of Supreme Court Bar Association v. Union of India (1998),
the Court emphasized that its jurisdiction under Article 142 is broad and flexible,
enabling it to deliver complete justice. In cases like Shilpa Sailesh v. Varun
Sreenivasan (2023), the Court used Article 142 to grant a divorce on the grounds of
irretrievable breakdown of marriage, overriding procedural requirements and
statutory limitations to ensure a just outcome for the parties involved.

Scope and Limitations:

While Article 142 provides the Supreme Court with unique powers, these powers
are not without limitations. The exercise of this power must align with fundamental
general and specific public policies, including fundamental rights, secularism,
federalism, and other basic features of the Constitution. The Supreme Court has
recognized the need for self-imposed restraint to ensure that the exercise of power
under Article 142 does not conflict with substantive laws and established public
policies. The powers under Article 142 are distinct from the inherent powers of Civil
Courts under the Code of Civil Procedure (CPC) and High Courts under the Code of
Criminal Procedure (CrPC). It is a plenary power exercised with discretion and
caution.

Despite its significance, the broad and undefined nature of the power under Article
142 has raised concerns about potential judicial overreach and encroachment on
legislative functions. Critics argue that the Supreme Court's ability to override
statutory provisions could lead to a situation where judicial discretion undermines
the rule of law. The potential for overreach necessitates a careful and judicious
exercise of this power, ensuring that it is used to address exceptional situations where
adherence to procedural norms would result in injustice.

Article 142 stands as a testament to the Supreme Court's role as the guardian of
justice in India. It provides the Court with the necessary flexibility to address unique
and complex situations where the rigid application of laws may result in injustice.
However, the power must be exercised judiciously, keeping in mind the principles
of equity, fairness, and the broader public interest. The Supreme Court's ability to
use Article 142 to ensure complete justice underscores its pivotal role in maintaining
the balance between law and equity, ensuring that justice prevails even in the face
of procedural and statutory constraints.

Given the expansive amplitude of power under Article 142(1) of the Constitution,
the exercise of power must be legitimate, and clamors for caution, mindful of the
danger that arises from adopting an individualistic approach as to the exercise of the
Constitutional power, observed the Supreme Court.

A Constitution Bench composed of Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka,
Vikram Nath, and J.K. Maheshwari, JJ. has held that the Supreme Court has the
discretion to dissolve the marriage by passing a decree of divorce by mutual consent,
without being bound by the procedural requirement to move the second motion
subject to the requirements and conditions laid down under Amardeep Singh v.
Harveen Kaur, (2017) 8 SCC 746 and Amit Kumar v. Suman Beniwal, 2021 SCC
OnLine SC 1270. It was also held that in exercise of power under Article 142(1) of
the Constitution of India, the Supreme Court has the discretion to dissolve the
marriage on the ground of its irretrievable breakdown. However, while clarifying
that whether a party can directly canvass before Supreme Court the ground of
irretrievable breakdown by filing a writ petition under Article 32 of the Constitution,
the Court said that the parties should not be permitted to circumvent the procedure
by resorting to the writ jurisdiction under Article 32 or 226 of the Constitution.

Issues and Analysis:

Power and Jurisdiction of Supreme Court under Article 142(1) of the
Constitution of India

The Court took note of Article 142 of the Constitution and said that this Article is
apparently unique as it does not have any counterpart in most of the major written
constitutions of the world. Further, it said that Article 142(1) of the Constitution of
India, which gives wide and capacious power to the Supreme Court to do ‘complete
justice’ in any cause or matter’ is significant, as the judgment delivered by Supreme
Court ends the litigation between the parties. The Bench said that Article 142 gives
legal authority to the Supreme Court to give precedence to equity over law. This
power, like all powers under the Constitution, must be contained and regulated, as it
has been held that relief based on equity should not disregard the substantive
mandate of law based on underlying fundamental general and specific issues of
public policy.

The Court while drawing a distinction between the Constitutional power exercisable
by Supreme Court under Article 142(1) of the Constitution, and the inherent power
of the Civil Court recognised by Section 151 of the Code of Civil Procedure, 1908
(‘CPC’) and the inherent power of the High Court under Section 482 of the Code of
Criminal Procedure Code, 1973 (‘CrPC’) said that the Constitutional power
conferred by Article 142(1) of the Constitution on Supreme Court is not a replication
of the inherent power vested with the Civil Court under the CPC., and the High Court
under the CrPC, as the plenary and conscientious power conferred on Supreme Court
under Article 142(1), seemingly unhindered, is tempered or bounded by restraint,
which must be exercised based on fundamental considerations of general and
specific public policy.

Further, the Bench said that the fundamental general conditions of public policy refer
to the fundamental rights, secularism, federalism, and other basic features of the
Constitution of India. Specific public policy should be understood as some express
pre-eminent prohibition in any substantive law, and not stipulations and
requirements to a particular statutory scheme. It should not contravene a
fundamental and non-derogable principle at the core of the statute.

The Court also said that it was never doubted or debated that this Court is empowered
under Article 142(1) of the Constitution of India to do ‘complete justice’ without
being bound by the relevant provisions of procedure, if it is satisfied that the
departure from the said procedure is necessary to do ‘complete justice’ between the
parties. The Court while taking note of Supreme Court Bar Assn. v. Union of India,
(1998) 4 SCC 409, said that Supreme Court is not a forum of restricted jurisdiction
when it decides and settles the dispute in a ‘cause or matter’ While this Court cannot
supplant the substantive law by building a new edifice where none existed earlier,
or by ignoring express substantive statutory law provisions, it is a problem-solver in
the nebulous areas. As long as ‘complete justice’ required by the ‘cause or matter’
is achieved without violating fundamental principles of general or specific public
policy, the exercise of the power and discretion under Article 142(1) is valid and as
per the Constitution of India.

Further, the Court remarked that this is the reason why the power under Article
142(1) of the Constitution is undefined and uncatalogued, so as to ensure elasticity
to mould relief to suit a given situation. Thus, the Court held that it can depart from
the procedure as well as the substantive laws, if the decision is exercised based on
considerations of fundamental general and specific public policy. While deciding
whether to exercise discretion, the Supreme Court must consider the substantive
provisions as enacted and not ignore the same. Although the Supreme Court acts as
a problem solver by balancing out equities between the conflicting claims, this
power is to be exercised in a ‘cause or matter’.

Could there be an exception to the six-month waiting period required for a

divorce by consent?

The Court while examining Section 13-B of the Hindu Marriage Act, 1955 (‘HMA’),
noted that Section 13-B(2) HMA provides that after the first motion is passed, the
couple would have to move to the Court with the second motion, if the petition is
not withdrawn in the meanwhile, after six months and not later than eighteen months
of the first motion. No action can be taken by the parties before the lapse of six
months since the first motion. The Court said that the legislative intent behind
incorporating sub-section (2) to Section 13-B of the HMA, is that the couple must
have time to introspect and consider the decision to separate before the second
motion is moved. However, there are cases of exceptional hardship, where after
some years of acrimonious litigation and prolonged suffering, the parties, with a
view to have a fresh start, jointly pray to the Court to dissolve the marriage, and seek
waiver of the need to move the second motion. Thus, because of irreconcilable
differences, allegations made against each other and the family members, and in
some cases multiple litigations including criminal cases, continuation of the marital
relationship is an impossibility. Divorce is inevitable, and the cooling-off period of
six months, if at all, breeds misery and pain, without any gain and benefit. As per
the Court, here, the procedure should give way to a larger public and personal
interest of the parties in ending the litigation, and the pain and sorrow effected by
passing a formal decree of divorce, as in reality the marriage had ended much earlier.

The Court said that the object of the cooling off period is not to stretch the already
disintegrated marriage, or to prolong the agony and misery of the parties when there
are no chances of the marriage working out. Therefore, once every effort has been
made to salvage the marriage and there remains no possibility of reunion and
cohabitation, the Court is not powerless in enabling the parties to avail a better
option, which is to grant divorce. The waiver is not to be given on mere asking, but
on the Court being satisfied beyond doubt that the marriage has shattered beyond
repair.

The Court opined that Section 13-B HMA does not impose any fetters on the powers
of Supreme Court to grant a decree of divorce by mutual consent on a joint
application, when the substantive conditions of the Section are fulfilled, and the
Court is convinced and of the opinion that the decree of divorce should be granted.
Thus, adopting a hyper-technical view can be counterproductive, as pendency itself
causes pain, suffering and harassment and, consequently, it is the duty of the Court
to ensure that matrimonial matters are amicably resolved, thereby bringing the agony
to an end. Thus, the Court held that the Supreme Court has the discretion to dissolve
the marriage by passing a decree of divorce by mutual consent, without being bound
by the procedural requirement to move the second motion. This power should be
exercised with care and caution, keeping in mind the factors stated in Amardeep
Singh (supra) and Amit Kumar (supra).

Effect on Ongoing Proceedings under the Protection of Women from Domestic

Violence Act, 2005, Section 125 of the Code of Criminal Procedure, 1973, or
Criminal Prosecution Primarily under Section 498-A and Other Provisions of
the Penal Code, 1860
Placing reliance on Gian Singh v. State of Punjab, (2012) 10 SCC 303 and Jitendra
Raghuvanshi v. Babita Raghuvanshi, (2013) 4 SCC 58, the Court also held that based
on settlement between the parties, while passing a decree of divorce by mutual
consent, can set aside and quash other proceedings and orders, including criminal
cases and First Information Reports, provided the conditions, as specified in the
judgments, are satisfied.

Supreme Court’s Power to Grant Divorce in Exercise of Power under Article

142(1) of the Constitution of India when there is Complete and Irretrievable
Breakdown of Marriage Despite the Other Spouse Opposing the Prayer

The Court took note of Section 13(1)(i-a) HMA and Section 23(1)(a) HMA and
delineated the meaning of the term ‘cruelty’ by referring to its various judgments
and said that the grant of divorce on the ground of irretrievable breakdown of
marriage by Supreme Court is not a matter of right, but a discretion which is to be
exercised with great care and caution, keeping in mind several factors ensuring that
‘complete justice’ is done to both parties. The Court should be fully convinced and
satisfied that marriage is totally unworkable, emotionally dead and beyond salvation
and, therefore, dissolution of marriage is the right solution and the only way forward.
For this, several factors are to be considered such as:

● The period the parties had cohabited after marriage;

● When the parties had last cohabited;
● The nature of allegations made by the parties against each other and their
family members;
● The orders passed in the legal proceedings from time to time,
● Cumulative impact on the personal relationship;
● Whether, and how many attempts were made to settle the disputes by
intervention of the Court or through mediation, and when the last attempt was
made, etc.

The period of separation should be sufficiently long, and anything above six years
or more will be a relevant factor. Further, the Court clarified that these facts have to
be evaluated keeping in view the economic and social status of the parties, including
their educational qualifications, whether the parties have any children, their age,
educational qualification, and whether the other spouse and children are dependent,
in which event how and in what manner the party seeking divorce intends to take
care and provide for the spouse or the children. The Court said that extraordinary
care and caution must be exercised, and unless it is shown that exceptional and
special circumstances exist to demonstrate that substantial and grave injustice has
been rendered, Supreme Court should not review/interfere with the decision
appealed against. The Court would not pass an order in contravention or ignorance
of a statutory provision, or merely on sympathetic grounds.

The Court read down the judgments in Manish Goel v. Rohini Goel, (2010) 4 SCC
393, Neelam Kumar v. Dayarani, (2010) 13 SCC 298, Darshan Gupta v. Radhika
Gupta, (2013) 9 SCC 1, Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234,
Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73 and others in the context
of the power of Supreme Court given by the Constitution of India to do ‘complete
justice’ in exercise of the jurisdiction under Article 142(1) of the Constitution. Thus,
it was held that the power to do ‘complete justice’ is not fettered by the doctrine of
fault and blame, applicable to petitions for divorce under Section 13(1)(i-a) of the
Hindu Marriage Act.

Can a Party Directly Canvass before the Supreme Court the Ground of
Irretrievable Breakdown by Filing a Writ Petition under Article 32 of the
Constitution?

After placing reliance on Poonam v. Sumit Tanwar, (2010) 4 SCC 460, the Court
said that the parties should not be permitted to circumvent the procedure by resorting
to the writ jurisdiction under Article 32 or 226 of the Constitution of India, as the
case may be as the relief under Article 32 can be sought to enforce the rights
conferred by Part III of the Constitution, and on the proof of infringement .
Therefore, a party cannot file a writ petition under Article 32 and seek relief of
dissolution of marriage directly from the Supreme Court. Thus, the Bench held that
in exercise of power under Article 142(1) of the Constitution of India, has the
discretion to dissolve the marriage on the ground of its irretrievable breakdown. This
discretionary power is to be exercised to do ‘complete justice’ to the parties, wherein
the Supreme Court is satisfied that the facts established show that the marriage has
completely failed and there is no possibility that the parties will cohabit together,
and continuation of the formal legal relationship is unjustified. Further, it was said
that the Court, as a court of equity, is required to also balance the circumstances and
the background in which the party opposing the dissolution is placed.

Supreme Court's Directive on the Appointment of the Election Commission of

India: Summary of the Verdict

Case: Anoop Baranwal v. Union of India, 2023 SC 216

Overview of Article 324

Article 324 of the Indian Constitution vests the superintendence, direction, and
control of elections to Parliament, State Legislatures, and the offices of President
and Vice-President in an Election Commission. The provision aims to ensure free
and fair elections by establishing an autonomous body to oversee the electoral
process.

Key Provisions of Article 324

1. Clause (1): Establishes the Election Commission of India (ECI), comprising

the Chief Election Commissioner (CEC) and other Election Commissioners
(ECs) as the President may appoint from time to time.
2. Clause (2): Provides for the appointment of the CEC and ECs by the
President, subject to any law made by Parliament. This clause underscores the
need for legislative action to define the process, qualifications, and terms of
appointment.
3. Clause (3): States that the CEC shall act as the Chairman of the ECI if there
are other ECs appointed.
4. Clause (4): Grants the ECI the power to appoint Regional Commissioners as
necessary to assist the ECI in the performance of its functions.
5. Clause (5): Specifies the conditions of service and tenure of office for the
CEC and ECs, which cannot be altered to their disadvantage after
appointment. It also outlines the removal process, which requires the
recommendation of the CEC for the removal of an EC.
6. Clause (6): Allows the President to make provisions for the resignation,
removal, and other service conditions of the CEC and ECs, pending the
enactment of laws by Parliament.
Background and Directive

The Supreme Court has ruled that the Chief Election Commissioner (CEC) and
Election Commissioners (ECs) should be appointed by the President based on the
recommendation of a committee. This committee consists of the Prime Minister, the
Leader of Opposition in Lok Sabha, and the Chief Justice of India. This decision is
intended to prevent the executive branch from solely controlling these crucial
appointments, which could negatively impact fundamental rights and democratic
values.

The Constitution Bench, comprising Justices K.M. Joseph*, Ajay Rastogi**,

Aniruddha Bose, Hrishikesh Roy, and C.T. Ravikumar, addressed the ongoing
dispute regarding the appointment process of ECI members. The bench ruled that
the current process will continue until Parliament enacts a specific law governing
these appointments. The Court also strongly recommended the establishment of a
permanent ECI Secretariat, funded by the Consolidated Fund of India, to ensure the
commission's complete independence.

Justice Rastogi, concurring with the majority opinion by Justice Hrishikesh Roy,
suggested that the grounds for removing ECs should be the same as those for the
CEC, based on Article 324(5) of the Constitution. Furthermore, the conditions of
service for ECs should not be altered to their disadvantage post-appointment.

Key Points from the Verdict

Issue and Prayer: The existing appointment system for ECI members was
challenged as incompatible with Article 324(2) and arbitrary. The petitioner argued
that an independent ECI is crucial for maintaining the rule of law and ensuring free
and fair elections. The petition sought:

1. A 5-member committee for ECI appointments, consisting of:

● The Prime Minister
● The Leader of Opposition or the leader of the single largest party in Lok
Sabha
● The Chief Justice of India
● The Speaker of Lok Sabha
● An eminent jurist selected by the aforementioned four members
 2. Specific qualifications for candidates, including:
● Citizenship of India
● Age between 45 and 61 years
● Impeccable integrity and high moral character
● No political party affiliation
● Background as an IAS or IPS officer, or a Judge of a High Court
3. Irremovability of ECs except through the procedure outlined in the first
proviso.
4. Establishment of an independent Secretariat for ECI.
5. Funding for ECI on par with the Supreme Court, CAG, and UPSC, making it
non-votable expenditure charged on the Consolidated Fund of India.

Vacuum in Article 324 of the Constitution: Historically, only CECs were

appointed for the first four decades of the Republic. Since 1993, the ECI has included
the CEC and two ECs. Appointments have traditionally been made by the President
on the advice of the Prime Minister. However, the Court noted that the Constitution’s
framers intended for Parliament to enact a law governing these appointments, to
prevent the executive from having exclusive control.

The Court highlighted the absence of such a law, which creates a significant void.
This gap has persisted despite calls from across the political spectrum to reduce the
executive's exclusive power in this area. The Court noted that allowing the executive
to solely control these appointments could lead to biased and unfair election
oversight, undermining democracy.

Protection for Election Commissioners: The Court rejected the proposal to extend
the CEC's protections to ECs. It noted that giving ECs the same immunity from
removal, unless impeached like a Supreme Court Judge, would require a
recommendation from the CEC. Given the volume of work and the need for a multi-
member team, the Court suggested that Parliament consider extending these
protections to ECs to ensure their independence.

Independent Secretariat and Funding: The Court emphasized that the ECI must
remain independent from executive subjugation and interference. One way the
executive could undermine ECI’s independence is by controlling its funding. To
prevent this, the Court recommended establishing a permanent Secretariat for the
ECI and ensuring its expenditure is charged to the Consolidated Fund of India. This
would shield the ECI from financial pressures and ensure its effective and
independent functioning.

Justice Rastogi, in his concurring opinion, underscored the need to extend the CEC’s
removal protections to ECs until Parliament enacts appropriate legislation. He
emphasized that both the CEC and ECs must be insulated from executive
interference to maintain the independence and neutrality of the ECI, which is vital
for free and fair elections, a cornerstone of democracy.

Conclusion: The Supreme Court’s directive aims to enhance the independence of

the Election Commission of India by introducing a more transparent and balanced
appointment process. By involving a committee in the appointment process and
recommending financial autonomy, the Court seeks to prevent any undue executive
influence over the ECI, thereby ensuring free, fair, and impartial elections in India.

Contempt of Court: Definition and Legal Framework

Case: Suo Motu Contempt Petition (Crl.) no. 1 of 2020 against Adv. Prashant
Bhushan & Anr

The Contempt of Court Act, 1971, defines contempt of court under Section 2(a) as
civil or criminal contempt, which is punishable under Section 12 of the same Act.
This concept is crucial for protecting judicial institutions from motivated attacks and
unwarranted criticism. It serves as a legal mechanism to punish those who aim to
undermine the court's authority. Despite its importance, the existing law on contempt
of court is often considered uncertain and unsatisfactory. This perception arises from
its impact on two fundamental rights: the Right to Freedom of Speech and
Expression and the Right to Personal Liberty, enshrined in Articles 19 and 21 of the
Indian Constitution, respectively.

Moreover, the punishment for contempt of court is relatively mild compared to

defamation, which is defined under Section 500 of the Indian Penal Code (IPC),
1860. Although both offenses share similarities, the quantum of punishment for
contempt is significantly lower. Articles 129 and 215 of the Indian Constitution
empower the Supreme Court and High Courts to punish contempt of themselves.
These powers are broadly defined, leaving considerable room for judicial
interpretation and discretion. The lack of specific guidelines for using these powers
can sometimes lead to their misuse, thereby curtailing citizens' fundamental rights
to freedom of speech and expression. Consequently, citizens may feel restricted in
their ability to criticize the judiciary compared to other government organs.

Contempt of Court Case Against Prashant Bhushan

The Supreme Court of India took suo motu cognizance of tweets posted by activist
and advocate Prashant Bhushan, following a complaint by Mahek Maheshwari.
Bhushan was accused of contempt of court for allegedly lowering the authority of
the judiciary through his tweets. The facts of the case are as follows:

Facts of the Case

On June 27, 2020, Prashant Bhushan tweeted about the role of the Supreme Court in
the perceived destruction of democracy in India over the past six years. He
particularly criticized the last four Chief Justices of India (CJIs). On June 29, 2020,
he posted a photo of CJI Justice S.A. Bobde riding a Harley Davidson motorcycle
without a mask or helmet. Bhushan's tweet highlighted the incongruity of the CJI
riding a bike while keeping the Supreme Court in lockdown mode, thereby denying
citizens their fundamental right to access justice.

On July 21, 2020, Advocate Mahek Maheshwari filed a contempt petition against
Bhushan, alleging his tweets were a publicity stunt aimed at spreading hatred against
the judiciary. Maheshwari also accused Twitter of not taking down the tweets. The
Supreme Court, noting the lack of prior sanction from the Attorney General, took
suo motu cognizance of the tweets on July 22, 2020. A bench comprising Justices
Arun Mishra, B. R. Gavai, and Krishna Murari observed that the tweets could
undermine the dignity and authority of the court. Notices were issued to the
contemnors to file their replies by August 5, 2020, and the Attorney General was
asked to assist the court.

Replies of the Contemnors

Prashant Bhushan (Contemnor No.1)

Bhushan defended his tweet dated June 27, 2020, stating it expressed his bona fide
opinion that democracy had been substantially destroyed in India over the past six
years. He argued that the Supreme Court had failed to act as the guardian of the
Constitution, contributing to the destruction of democracy. He contended that the
criticism of the last four CJIs was not contemptuous because, in a democracy, every
citizen has the right to freely discuss the state of affairs of any institution. Equating
the CJI with the Supreme Court undermines the institution itself, Bhushan argued.

Regarding his tweet dated June 29, 2020, Bhushan stated it was meant to highlight
his anguish over the non-physical functioning of the Supreme Court, which he
believed denied citizens access to justice. He emphasized that his tweet was not
intended to scandalize the court but to point out the incongruity of the CJI's actions
during the lockdown. He concluded that his expression of anguish did not amount to
contempt of court and that penalizing him would violate his fundamental right to
freedom of speech and expression.

Twitter Inc. (Contemnor No.2)

In its affidavit, Twitter stated that it is a global micro-blogging platform acting

merely as an intermediary, as defined under Section 2(w) of the Information
Technology Act, 2000. It claimed no editorial control over user-generated content
and merely displays users' tweets. After the court's order on July 22, 2020, Twitter
blocked and disabled access to the tweets in question.

Court's Judgement

The Supreme Court held that Bhushan's tweets were based on distorted facts and
constituted criminal contempt. The court accepted Twitter's defense that it acted as
an intermediary without editorial control and had blocked the tweets in question.
Thus, the notice against Twitter was discharged. Bhushan was found guilty of
criminal contempt and fined Re 1, to be deposited by September 15, 2020. Failing
this, he would face three months of simple imprisonment and be debarred from
practicing in the Supreme Court for three years. Bhushan complied with the court's
order by submitting the fine on September 14, 2020.

Critical Analysis of the Case

Arbitrariness in Contempt Powers

The contempt powers of the Supreme Court and High Courts in India are seen as
arbitrary due to the lack of a clear definition and guidelines. In England, the offence
of scandalizing the court was abolished in 2013 on the recommendation of the Law
Commission, which argued that it infringed on freedom of expression and violated
human rights principles. Similarly, in India, the term "scandalize" used in Section
2(c)(i) of the Contempt of Court Act is not defined, leading to potential misuse of
contempt powers. It is suggested that the Supreme Court should either abolish this
offence or clearly define it and issue guidelines to prevent misuse.

Violation of Article 14

Section 19 of the Contempt of Court Act, 1971, provides for the right to appeal
against High Court orders in contempt cases. However, no such provision exists for
appeals against Supreme Court judgments. This lack of an appeal mechanism for
Supreme Court contempt cases is viewed as unreasonable and discriminatory,
violating Article 14 of the Indian Constitution. Although a review petition can be
filed, it is heard by the same bench, reducing the likelihood of an unbiased
reconsideration.

Freedom of Speech and Expression

Article 19(1)(a) of the Indian Constitution guarantees freedom of speech and

expression, which is fundamental to democracy. However, Article 19(2) permits
reasonable restrictions, including contempt of court. Courts should use their
contempt powers to aid the administration of justice, not to suppress criticism. The
balance between protecting judicial authority and ensuring freedom of expression is
delicate and requires careful consideration to avoid unjust restrictions on speech.

Right to Appeal

The right to appeal is a substantive right under Article 21 of the Indian Constitution.
In contempt cases initiated by the Supreme Court, there is no provision for an appeal,
which contradicts the principle of natural justice. The International Covenant on
Civil and Political Rights (ICCPR) also supports the right to appeal. Bhushan filed
a writ petition on September 12, 2020, requesting the Supreme Court to provide for
an intra-court appeal in contempt cases, invoking the maxim "Nemo potest esse
simul actor et judex" (No one can be a suitor and a judge at the same time).

Conclusion

Contempt powers in a democracy are meant to ensure the effective functioning of

the judiciary, not to protect the self-esteem of individual judges. The judiciary's
foundation is the trust and confidence of the people in its ability to deliver impartial
justice. As stated by the Supreme Court in the case against former Madras High
Court Judge C.S. Karnan, "Law of contempt is not made for the protection of judges
who may be sensitive to the winds of public opinion." Judges are expected to possess
fortitude and thrive in a challenging environment.

Supreme Court Verdict on Reservation in Promotion: Jarnail Singh vs.

Lachhmi Narain Gupta

Introduction

On September 26, 2018, the Supreme Court delivered its verdict in the case of Jarnail
Singh vs. Lachhmi Narain Gupta, widely known as the 'Reservation in Promotion
Case'. This pivotal case saw a five-judge bench comprising Former Chief Justice of
India Dipak Misra, Justice Kurian Joseph, Justice RF Nariman, Justice SK Kaul, and
Justice Indu Malhotra, reviewing the judgment of a previous case that addressed
reservations for the Scheduled Castes (SCs) and Scheduled Tribes (STs) in
promotions to government jobs or public services. A significant aspect of this case
was the application of the 'creamy layer' principle among SCs and STs in the context
of reservation in promotions. The 'creamy layer' concept is rooted in the notion that
economic progress leads to social advancement, effectively liberating individuals
from their backward status. However, its application has sparked debates on caste
discrimination within institutions.

Historical Context of Reservation

Reservation has long been a contentious issue in India, its roots tracing back to the
Poona Pact when Dr. B.R. Ambedkar advocated for separate electorates for the Dalit
community. The so-called "depressed classes" were eventually granted reservation
in employment alongside joint electorates. This policy evolved as it became apparent
that SCs, STs, and other backward classes (OBCs) were not merely impoverished
but were systematically excluded from various spheres of society. Consequently,
reservations were instituted to ensure their representation in government jobs, public
services, and local bodies. Despite gaining employment through reservations, these
groups often faced barriers to promotion, prompting the introduction of reservation
in promotions for SCs and STs under specific conditions. The need to reassess these
conditions brought the issue before the judiciary once more.

Background Facts

The 2006 decision in M. Nagraj and Others vs. Union of India and Others set the
stage for the Jarnail Singh case. The Nagraj judgment, which imposed stringent
conditions for granting reservations in promotions, was challenged by various states
and the Centre. Petitioners argued that the Nagraj verdict unduly complicated the
process of providing reservations in promotions for government jobs and public
services. They called for a re-evaluation of the conditions established in the Nagraj
case, suggesting that it be referred to a seven-judge bench.

Article 16 of the Indian Constitution, which guarantees equality of opportunity in

public employment, originally did not address reservations until the landmark Indra
Sawhney case of 1992. Article 16(4) allows the state to make provisions for
reserving appointments or posts for any backward class of citizens. However, this
provision did not extend to promotions, adversely affecting SCs and STs. To rectify
this, Clause 4A was introduced through the 81st Amendment, permitting the state to
make reservations in matters of promotion.

The Nagraj case questioned the constitutional validity of these provisions. A five-
judge bench ruled that states must collect 'quantifiable data' to demonstrate the
backwardness and inadequate representation of SCs and STs in public employment
before making provisions for reservation in promotions. This requirement was seen
as contradictory to the Indra Sawhney case and thus unconstitutional. Additionally,
the application of the creamy layer principle to SCs and STs was contentious since
it had traditionally been applied only to OBCs. The introduction of the creamy layer
in promotions raised questions about equality, leading to a petition to review the
Nagraj verdict.

Key Issues

The Jarnail Singh case addressed several critical issues:

1. Whether the Nagraj judgment needed reconsideration by a seven-judge bench.

2. Whether states were required to collect quantifiable data to prove the
backwardness and inadequate representation of SCs and STs when granting
promotions.
3. Whether the creamy layer among SCs and STs should be excluded from
obtaining promotions through reservations.

Arguments and Deliberations

The Supreme Court decided against referring the Nagraj judgment to a seven-judge
bench, opting instead for a five-judge bench review in the Jarnail Singh case. The
Nagraj verdict required states to collect quantifiable data proving the inadequate
representation of SCs and STs in public services before granting reservations in
promotions. Attorney General KK Venugopal argued that the Constitution already
recognized SCs and STs as socially and economically backward classes, obviating
the need for further tests to verify their status. He asserted that imposing additional
requirements contradicted the Indra Sawhney case, which did not mandate collecting
quantifiable data for granting promotions through reservations.

Proponents of data collection argued that verifying backwardness was necessary to

prevent misuse of the reservation policy, ensuring that only truly deserving
individuals benefitted. They viewed data collection as a government responsibility,
ensuring integrity and fairness in the reservation process. Justice Nariman, however,
pointed out that the Indra Sawhney case did not endorse quantifiable data collection
as a prerequisite for promotions, highlighting a contradiction in the Nagraj verdict.

The court also examined the creamy layer principle, interpreting it as part of the
equality principle under Articles 14, 15, and 16. Arguments in favor of excluding
the creamy layer emphasized that the purpose of reservations was to uplift the truly
backward individuals within a class, ensuring that socially and economically
advanced individuals did not monopolize the benefits. This exclusion was seen as
necessary to uphold the principles of equality, preventing unequal treatment of
similarly situated individuals within the general and backward classes.

Justice Nariman observed that including the creamy layer in reservations

undermined the very purpose of affirmative action, which was to provide equal
opportunities for the genuinely disadvantaged. He argued that excluding the creamy
layer was crucial to ensuring that the benefits of reservation reached those who
needed them most. Conversely, supporters of including the creamy layer contended
that at higher levels of employment, economic differences among SCs and STs were
negligible, making the argument for exclusion less relevant. They argued that
including the creamy layer could help dispel workplace discrimination and allow
SCs and STs to demonstrate their merit.

Judgment and Implications

The Supreme Court concluded that the Nagraj judgment did not need reconsideration
by a seven-judge bench. It invalidated the requirement for states to collect
quantifiable data proving the backwardness of SCs and STs, aligning with the Indra
Sawhney case, which deemed such data collection unnecessary. The court
reaffirmed the application of the creamy layer principle to promotions for SCs and
STs, emphasizing that this principle was about identifying the truly backward
individuals within a class, not about equality.

The court's decision underscored the importance of ensuring that the benefits of
reservations reached those most in need, preventing the monopolization of these
benefits by socially and economically advanced individuals within the backward
classes. This judgment had significant implications for thousands of employees who
had been denied promotions due to the Nagraj verdict, affirming their right to fair
representation and advancement.

Conclusion

India's history of caste and class-based discrimination necessitated the introduction

of reservations as a means of ensuring representation and equality for historically
marginalized communities. While reservations in employment helped secure jobs
for SCs, STs, and OBCs, these groups continued to face barriers to promotion. The
introduction of reservation in promotions was a crucial step toward addressing these
disparities.

The Jarnail Singh case highlighted the judiciary's role in safeguarding the rights of
the less privileged while balancing the principles of equality and merit. The decision
to apply the creamy layer principle to promotions for SCs and STs aimed to ensure
that the benefits of reservations reached those who truly needed them. This case
demonstrated the judiciary's commitment to reviewing and amending laws to uphold
the principles of justice and equality, even in the face of controversy and criticism.
While the legal landscape surrounding reservations remains complex, the judiciary's
efforts to refine and enforce these policies reflect a dedication to ensuring fair and
equitable opportunities for all citizens.

The Chief Election Commissioner of India vs. M.R. Vijayabhaskar and Ors.
(06.05.2021 - SC): MANU/SC/0341/2021

Subject Matter: Freedom of Speech and Expression

Article 19(1)(a) - Freedom of Speech and Expression

Key Issue: A delicate question of balancing the powers of two constitutional

authorities in this appeal has raised larger issues of the freedom of speech and
expression of the media, the right to information of citizens, and the accountability
of the judiciary to the nation.

Citation Details: The Chief Election Commissioner of India vs. M.R.

Vijayabhaskar and Ors. (06.05.2021 - SC): MANU/SC/0341/2021

Facts: The present Petition arose from an order of a Division Bench of the Madras
High Court while entertaining a petition under Article 226 of the Constitution to
ensure that COVID-related protocols are followed at concerned polling booths.
During the hearings, the Division Bench allegedly made certain remarks, attributing
responsibility to the Election Commission (EC) for the present surge in the number
of COVID-19 cases, due to their failure to implement appropriate COVID-19 safety
measures and protocols during the elections. The EC alleged that the remarks were
baseless and tarnished its image, as it is also an independent constitutional authority.
Held: The Court ruled that freedom of speech and expression includes reporting on
court proceedings, including oral observations made by judges. The court found no
substance in the prayer of the EC for restraining the media from reporting on court
proceedings. The Court stands as a staunch proponent of the freedom of the media
to report court proceedings. This is integral to the freedom of speech and expression
of those who speak, of those who wish to hear and to be heard, and above all, in
holding the judiciary accountable to the values which justify its existence as a
constitutional institution. The appeal stands disposed of.

The Chief Election Commissioner of India vs. M.R. Vijayabhaskar and Ors. case is
a landmark judgment that delves into the intricate balance between the freedom of
speech and expression, the right to information of citizens, and the accountability of
the judiciary. The case emerged in the context of the COVID-19 pandemic,
highlighting the tension between different constitutional authorities and their roles
in managing the crisis while ensuring democratic processes and public health.

Background:

During the COVID-19 pandemic, the Election Commission of India (EC) was tasked
with overseeing the conduct of elections in various states, ensuring that the
democratic process continued uninterrupted. However, the surge in COVID-19 cases
during the election period raised concerns about the adequacy of the safety measures
implemented by the EC. This led to public and judicial scrutiny of the EC's actions.

A Division Bench of the Madras High Court, while hearing a petition under Article
226 of the Constitution, made certain oral observations attributing the responsibility
for the surge in COVID-19 cases to the EC's failure to enforce appropriate protocols.
The EC, feeling aggrieved by these remarks, approached the Supreme Court seeking
a restraint on the media from reporting the oral observations, arguing that they
tarnished the EC's image and were not part of the official judicial record.

Legal Issues:

The primary legal issues in this case revolve around:

1. The freedom of speech and expression, particularly in the context of media

reporting on judicial proceedings.
 2. The right to information of citizens regarding court proceedings.
3. The accountability of the judiciary and the extent to which its oral
observations can be reported and scrutinized.

Arguments:

Arguments by the Election Commission:

1. Damage to Reputation: The EC argued that the remarks made by the

Division Bench were damaging to its reputation. As an independent
constitutional authority, the EC emphasized the importance of maintaining its
credibility and integrity, which it claimed were jeopardized by the High
Court's observations.
2. Oral Observations vs. Judicial Records: The EC contended that oral
observations made by judges during hearings do not constitute part of the
official judicial record and should not be reported by the media. The EC
argued that such remarks, if reported, could be taken out of context and lead
to misinformation.
3. Impact on Electoral Processes: The EC also highlighted the potential
adverse impact of the High Court's remarks on the ongoing electoral
processes. It argued that the remarks could undermine public confidence in
the EC's ability to conduct free and fair elections, thereby affecting voter
turnout and participation.

Arguments by the Respondents:

1. Freedom of Speech and Expression: The respondents, including various

media organizations, argued that the freedom of speech and expression
enshrined in Article 19(1)(a) of the Constitution includes the right to report
on court proceedings. They contended that this right is essential for
transparency and accountability in the judicial process.
2. Public Interest: The respondents emphasized the importance of public
interest in being informed about judicial proceedings, especially in matters of
significant public concern such as the management of the COVID-19
pandemic during elections. They argued that reporting on court proceedings
 serves the public's right to know and enhances the accountability of public
institutions.
3. Judicial Accountability: The respondents argued that judicial accountability
is an integral part of a functioning democracy. They contended that the
judiciary, like other public institutions, must be open to scrutiny and criticism.
Reporting on oral observations made by judges contributes to this
accountability.

Supreme Court's Analysis:

Freedom of Speech and Expression:

The Supreme Court reaffirmed the importance of freedom of speech and expression
as a fundamental right under Article 19(1)(a) of the Constitution. The Court
emphasized that this right includes the freedom of the media to report on court
proceedings. The Court highlighted that the media plays a crucial role in informing
the public about judicial processes and decisions, thereby promoting transparency
and accountability.

The Court noted that judicial proceedings are a matter of public record, and reporting
on them contributes to an informed citizenry. The Court observed that restricting
media reporting on court proceedings would be an infringement on the freedom of
speech and expression and would hinder the public's right to know.

Oral Observations vs. Judicial Records:

Addressing the EC's contention that oral observations do not form part of the official
judicial record, the Court acknowledged that while this is technically correct, it does
not imply that such observations cannot be reported. The Court observed that oral
observations made during hearings provide insight into the judicial mind and the
reasoning process of judges. These observations, though not binding, reflect the
judicial discourse and are of public interest.

The Court emphasized that oral observations, when reported accurately and in
context, contribute to the public's understanding of the judicial process. The Court
noted that judges, being aware of the public nature of court proceedings, should
exercise judicial restraint in making oral observations to avoid unnecessary
controversy.

Judicial Accountability:

The Supreme Court underscored the importance of judicial accountability in a

democratic society. The Court stated that the judiciary, being a public institution,
must be open to scrutiny and criticism. The Court observed that the transparency of
judicial proceedings ensures that the judiciary remains accountable to the public and
upholds the values of justice and fairness.

The Court also highlighted that judicial accountability does not undermine judicial
independence. Instead, it strengthens public confidence in the judiciary by ensuring
that judicial actions and decisions are subject to public oversight. The Court
reaffirmed that reporting on judicial proceedings, including oral observations, is a
legitimate exercise of the freedom of speech and expression.

Balancing Competing Interests:

The Supreme Court recognized the need to balance competing interests in this case.
On one hand, the freedom of speech and expression and the right to information are
fundamental rights that promote transparency and accountability. On the other hand,
the reputation and integrity of constitutional authorities, such as the Election
Commission, are essential for maintaining public trust in democratic processes.

The Court emphasized that while media reporting on court proceedings is crucial, it
must be done responsibly and accurately. The Court cautioned against
sensationalism and the misrepresentation of judicial remarks, which could lead to
misinformation and public distrust. The Court urged the media to exercise self-
regulation and adhere to journalistic ethics in reporting on judicial proceedings.

Conclusion:

The Supreme Court dismissed the Election Commission's appeal, upholding the
freedom of the media to report on court proceedings, including oral observations
made by judges. The Court reiterated that freedom of speech and expression is a
cornerstone of democracy and must be protected. The Court emphasized that
transparency and accountability in the judiciary are essential for maintaining public
confidence in the legal system.

The Court's judgment in this case reinforces the principles of freedom of speech and
expression, the right to information, and judicial accountability. It sets a precedent
for the media's role in reporting on judicial proceedings and underscores the
importance of responsible journalism. The judgment also highlights the judiciary's
commitment to transparency and its willingness to be subject to public scrutiny.

Implications of the Judgment:

For the Media:

The judgment reaffirms the media's right to report on judicial proceedings, including
oral observations made by judges. This enhances the media's role as a watchdog and
a conduit for public information. However, the judgment also calls for responsible
journalism, urging the media to report accurately and avoid sensationalism. Media
organizations are reminded of their ethical duty to present information in a fair and
balanced manner.

For the Judiciary:

The judgment emphasizes the judiciary's accountability and its openness to public
scrutiny. Judges are reminded to exercise judicial restraint in making oral
observations to avoid unnecessary controversy. The judgment reinforces the
principle that the judiciary's formal opinions are reflected in its judgments and
orders, not in oral remarks made during hearings.

For the Election Commission:

The judgment highlights the importance of the Election Commission's credibility

and integrity as an independent constitutional authority. While the EC's concerns
about its reputation are acknowledged, the judgment underscores that transparency
and accountability are paramount. The EC is encouraged to continue its efforts in
ensuring free and fair elections while maintaining public trust.

For the Public:

The judgment upholds the public's right to information and reinforces the importance
of transparency in judicial proceedings. It assures citizens that the judiciary remains
accountable and that media reporting on court proceedings is a legitimate exercise
of freedom of speech and expression. The judgment empowers citizens with the
knowledge that they have the right to be informed about judicial processes and
decisions.

Conclusion:

The Chief Election Commissioner of India vs. M.R. Vijayabhaskar and Ors. case is
a significant milestone in the interpretation of freedom of speech and expression in
the context of judicial proceedings. The Supreme Court's judgment reaffirms the
media's role in promoting transparency and accountability while emphasizing the
need for responsible journalism. The judgment also underscores the judiciary's
openness to public scrutiny and its commitment to upholding democratic values.
This landmark decision reinforces the principles of freedom, transparency, and
accountability, which are the bedrock of a functioning democracy.

Laxmibai Chandaragi B. and Ors. vs. The State of Karnataka and Ors.
(08.02.2021 - SC): MANU/SC/0068/2021

Subject Matter: Right to Marry - Consent of Family Not Needed Once Two
Adults Decide to Marry

Relevant Article:

● Article 21 - Protection of life and personal liberty: No person shall be

deprived of his life or personal liberty except according to procedure
established by law.
Key Issue:

● Whether directions need to be issued for the protection of the petitioners?

Citation Details:

● Laxmibai Chandaragi B. and Ors. vs. The State of Karnataka and Ors.
(08.02.2021 - SC): MANU/SC/0068/2021

Facts: A father lodged a complaint stating that his daughter was missing. In
pursuance to the complaint, an FIR for a missing person was registered. The
investigation officer recorded the statements of the missing person's parents and her
relatives and analyzed call details. During the investigation, it was discovered that
the daughter had married Petitioner 2. She had sent her marriage certificate to her
parents via WhatsApp, revealing the fact of her marriage to Petitioner 2. The
petitioners alleged that the uncle of the said daughter was threatening them. Both
petitioners were well educated. They had developed a liking for each other during
their employment. However, there was resistance from the parents of Petitioner 1.
Both petitioners were majors and Hindu by religion.

Held: The Court held that the consent of the family or the community or the clan is
not necessary once two adult individuals agree to enter into wedlock and that their
consent must be given primacy. The Court further observed that the choice of an
individual is an inextricable part of dignity, for dignity cannot be thought of where
there is an erosion of choice. Such a right or choice is not expected to succumb to
the concept of class honor or group thinking. The petitioners having filed the present
petition, no further statement was required to be recorded, and thus, the proceedings
in pursuance to the FIR were quashed.

The Supreme Court of India's judgment in "Laxmibai Chandaragi B. and Ors. vs.
The State of Karnataka and Ors." is a significant reaffirmation of the constitutional
right to marry a person of one's choice, protected under Article 21 of the Indian
Constitution. This case brings to the fore the clash between individual rights and
societal norms, particularly in the context of marriage. It highlights the legal and
constitutional protections available to individuals who choose to marry against the
wishes of their families or communities.
Background:

In India, marriages often involve the consent and approval of families. However, this
social norm sometimes conflicts with the constitutional rights of individuals,
particularly the right to marry a person of one's choice. This case emerged from such
a conflict, where societal pressures and familial disapproval challenged the
autonomy of the petitioners to choose their life partners.

Petitioner 1, a well-educated woman, fell in love with Petitioner 2, a colleague.

Despite resistance from her family, the couple decided to marry. Following their
marriage, the woman's father lodged a missing person complaint, leading to the
registration of an FIR. The investigation revealed that the woman had married
Petitioner 2 and had sent her marriage certificate to her parents via WhatsApp. The
couple faced threats from the woman's uncle, prompting them to seek legal
protection.

Legal Issues:

The primary legal issues in this case include:

1. The right of adult individuals to marry without familial or societal

interference.
2. The extent to which the State can intervene in protecting individuals
exercising their right to marry.
3. The role of law enforcement in ensuring the safety and protection of
individuals who marry against familial or societal opposition.

Arguments:

Arguments by the Petitioners:

1. Constitutional Rights: The petitioners argued that their decision to marry is

protected under Article 21 of the Indian Constitution, which guarantees the
right to life and personal liberty. They contended that this right includes the
freedom to choose one's life partner without external interference.
 2. Threats and Safety Concerns: The petitioners highlighted the threats they
faced from the woman's uncle, emphasizing the need for legal protection to
ensure their safety and well-being.
3. Legal Validity of Marriage: The petitioners argued that their marriage was
legally valid, having been solemnized according to Hindu customs and
rituals, and that the familial opposition should not undermine its legitimacy.

Arguments by the Respondents (State and Law Enforcement):

1. Duty to Investigate: The respondents contended that they were obligated to

investigate the missing person complaint lodged by the woman's father.
They argued that their actions were in line with procedural requirements and
aimed at ensuring the safety of the woman.
2. No Malafide Intent: The respondents maintained that there was no malafide
intent in their investigation and that their actions were driven by concerns
for the woman's welfare, given the complaint lodged by her father.
3. Protection of Rights: The respondents assured the Court that they would
take necessary steps to ensure the protection of the petitioners' rights and
safety, acknowledging the legitimacy of their marriage.

Supreme Court's Analysis:

Right to Marry and Personal Liberty:

The Supreme Court reaffirmed that the right to marry a person of one's choice is an
integral part of the right to life and personal liberty under Article 21 of the
Constitution. The Court emphasized that this right is not subject to familial or
societal approval and that the consent of the individuals involved is paramount. The
Court observed that any interference in this right would amount to a violation of
personal liberty and autonomy.

The Court highlighted that the autonomy of individuals in matters of marriage is

essential for their dignity. The choice of a life partner is a fundamental aspect of
personal autonomy, and any restriction on this choice undermines the individual's
dignity. The Court asserted that societal norms or familial honor cannot override the
constitutional rights of individuals.
Role of Law Enforcement:

The Supreme Court scrutinized the actions of the law enforcement agencies in this
case. The Court acknowledged that the police were obligated to investigate the
missing person complaint. However, the Court also emphasized that the
investigation should not infringe upon the petitioners' rights or compromise their
safety.

The Court directed the police to ensure the protection of the petitioners and to take
immediate action against any threats or harassment they faced. The Court reiterated
that the State has a duty to protect individuals exercising their constitutional rights,
particularly in the face of societal or familial opposition.

Judicial Precedents:

The Supreme Court referred to several judicial precedents that have reinforced the
right to marry and personal liberty. The Court cited the landmark judgment in
"Shafin Jahan vs. Asokan K.M. and Ors." (Hadiya case), where it upheld the right
of an adult woman to marry a person of her choice. The Court emphasized that
individual autonomy in matters of marriage is a fundamental right that cannot be
curtailed by societal norms or parental disapproval.

The Court also referred to the judgment in "Shakti Vahini vs. Union of India," where
it issued guidelines to prevent honor killings and protect individuals exercising their
right to marry. The Court highlighted that any form of honor-based violence or
harassment is a violation of constitutional rights and must be addressed with
stringent measures.

Protection of Petitioners:

In the present case, the Supreme Court issued specific directions to ensure the
protection of the petitioners. The Court quashed the FIR registered against the
woman and directed the police to take immediate action to ensure the safety of the
couple. The Court also instructed the police to provide security to the petitioners if
they faced any further threats or harassment.
The Court emphasized that the State has a duty to protect individuals exercising their
constitutional rights, particularly in matters of personal choice and autonomy. The
Court's directions aimed to provide immediate relief to the petitioners and safeguard
their rights against any form of interference or violence.

Implications of the Judgment:

For Individuals:

The judgment reaffirms the constitutional right of individuals to marry a person of

their choice without familial or societal interference. It empowers individuals to
make decisions about their personal lives and ensures that their choices are protected
by the law. The judgment underscores the importance of personal autonomy and
dignity, reinforcing the principle that individual rights cannot be compromised by
societal norms or familial expectations.

For Law Enforcement:

The judgment imposes a duty on law enforcement agencies to protect individuals

exercising their right to marry. The police are obligated to ensure the safety and well-
being of couples facing threats or harassment due to their choice of partner. The
judgment also mandates prompt and effective action against any form of honor-
based violence or harassment, reinforcing the State's responsibility to uphold
constitutional rights.

For Society:

The judgment challenges societal norms and practices that undermine individual
autonomy in matters of marriage. It sends a strong message against honor-based
violence and harassment, emphasizing that such practices are a violation of
constitutional rights. The judgment encourages a shift towards greater acceptance of
individual choices and personal autonomy, promoting a more inclusive and
respectful society.

For the Judiciary:

The judgment reinforces the judiciary's role in protecting constitutional rights and
ensuring justice for individuals facing societal or familial opposition. The Court's
intervention highlights the importance of judicial oversight in matters involving
personal autonomy and dignity. The judgment sets a precedent for future cases,
ensuring that the judiciary remains vigilant in safeguarding individual rights against
any form of interference or violence.

Conclusion:

The Supreme Court's judgment in "Laxmibai Chandaragi B. and Ors. vs. The State
of Karnataka and Ors." is a landmark decision that reaffirms the constitutional right
to marry a person of one's choice. The judgment underscores the importance of
personal autonomy and dignity, emphasizing that individual choices cannot be
compromised by societal norms or familial expectations.

The judgment imposes a duty on law enforcement agencies to protect individuals

exercising their right to marry and ensures immediate relief and protection for the
petitioners. It challenges societal practices that undermine individual autonomy and
promotes greater acceptance of personal choices.

The judgment sets a precedent for future cases, reinforcing the judiciary's
commitment to upholding constitutional rights and ensuring justice for individuals
facing opposition in matters of personal choice. It reaffirms the principle that
individual rights are paramount and must be protected against any form of
interference or violence.

Mohammad Salimullah and Ors. vs. Union of India (UOI) and Ors. (08.04.2021
- SC): MANU/SC/0246/2021

Subject Matter: Deportation of Rohingya Refugees

Relevant Articles:

● Article 14: Equality before law - The State shall not deny to any person
equality before the law or the equal protection of the laws within the
territory of India.
 ● Article 19(1)(e): All citizens shall have the right - to reside and settle in any
part of the territory of India.
● Article 21: Protection of life and personal liberty - No person shall be
deprived of his life or personal liberty except according to procedure
established by law.

Key Issue:

● Whether the respondent should be directed to release Rohingya refugees and

not to deport them?

Citation Details:

● Mohammad Salimullah and Ors. vs. Union of India (UOI) and Ors.
(08.04.2021 - SC): MANU/SC/0246/2021

Summary Judgment:

Facts: Pending the disposal of the main writ petition praying for the issue of an
appropriate writ directing the respondents to provide basic human amenities to the
members of the Rohingya community, who have taken refuge in India, the
petitioners, who claim to have registered themselves as refugees with the United
Nations High Commission for Refugees, filed a present interlocutory application
seeking the release of the detained Rohingya refugees and a direction to the
respondents not to deport the Rohingya refugees who have been detained in the sub-
jail in Jammu.

Held: There was no denial of the fact that India was not a signatory to the Refugee
Convention. There was no doubt that the national courts can draw inspiration from
international conventions/treaties, as long as they were not in conflict with municipal
law. It was also true that the rights guaranteed under Articles 14 and 21 are available
to all persons who may or may not be citizens. However, the right not to be deported
is ancillary or concomitant to the right to reside or settle in any part of the territory
of India guaranteed under Article 19(1)(e). The Rohingyas in Jammu, on whose
behalf the present application was filed, shall not be deported unless the procedure
prescribed for such deportation was followed.
Detailed Analysis:

Introduction:

The Supreme Court of India's judgment in "Mohammad Salimullah and Ors. vs.
Union of India (UOI) and Ors." addresses the contentious issue of the deportation of
Rohingya refugees. This case highlights the conflict between India's domestic
policies and its obligations under international law, particularly concerning the
treatment of refugees and asylum seekers. The judgment underscores the
constitutional protections available to refugees and the procedural safeguards
required for their deportation.

Background:

The Rohingya are a stateless ethnic group from Myanmar, who have faced severe
persecution and violence in their home country. As a result, many Rohingya have
sought refuge in neighboring countries, including India. However, their presence in
India has raised concerns about national security and demographic changes, leading
to calls for their deportation.

The petitioners, members of the Rohingya community, filed a writ petition seeking
the Court's intervention to ensure their safety and prevent their deportation. They
argued that their deportation would expose them to persecution and violence in
Myanmar, violating their fundamental rights under the Indian Constitution.

Legal Issues:

The primary legal issues in this case include:

1. The constitutional protections available to refugees under Articles 14 and 21

of the Indian Constitution.
2. The procedural safeguards required for the deportation of refugees.
3. The extent to which international conventions and treaties can influence
domestic law and policy.

Arguments:

Arguments by the Petitioners:

 1. Constitutional Protections: The petitioners argued that their deportation
would violate their fundamental rights under Articles 14 and 21 of the Indian
Constitution. They contended that these rights are available to all persons,
including non-citizens, and that their right to life and personal liberty would
be compromised if they were deported to Myanmar.
2. Non-refoulement Principle: The petitioners invoked the principle of non-
refoulement, which prohibits the return of refugees to a country where they
face a threat to their life or freedom. They argued that this principle,
recognized under international law, should guide India's treatment of
Rohingya refugees.
3. Humanitarian Considerations: The petitioners highlighted the
humanitarian crisis faced by the Rohingya in Myanmar, arguing that
deportation would subject them to severe persecution and violence. They
urged the Court to consider their vulnerable status and provide them with
protection.

Arguments by the Respondents (Union of India and Others):

1. National Security: The respondents argued that the presence of Rohingya

refugees posed a threat to national security. They contended that some
members of the Rohingya community had been involved in illegal activities
and that their continued stay in India could compromise national security.
2. Sovereign Right to Deport: The respondents asserted that India, as a
sovereign nation, has the right to control the entry and stay of foreign
nationals within its territory. They argued that the government had the
authority to deport foreign nationals who posed a threat to national security
or public order.
3. Non-signatory to Refugee Convention: The respondents emphasized that
India is not a signatory to the 1951 Refugee Convention or its 1967 Protocol.
They argued that India is not bound by the principle of non-refoulement and
that its domestic policies should take precedence over international
conventions.

Supreme Court's Analysis:

Constitutional Protections for Refugees:

The Supreme Court reaffirmed that the fundamental rights guaranteed under Articles
14 and 21 of the Indian Constitution are available to all persons within the territory
of India, regardless of their citizenship status. The Court emphasized that the right
to equality and the right to life and personal liberty are universal and must be upheld
for all individuals, including refugees and asylum seekers.

The Court noted that the right not to be deported is ancillary to the right to reside or
settle in any part of India, as guaranteed under Article 19(1)(e). However, since this
right is explicitly conferred upon citizens, the Court acknowledged the complexity
of applying it to non-citizens like the Rohingya. Nevertheless, the Court emphasized
that any deportation must follow the due process prescribed by law, ensuring
procedural fairness and protection of fundamental rights.

International Law and Non-refoulement Principle:

While acknowledging that India is not a signatory to the 1951 Refugee Convention
or its 1967 Protocol, the Supreme Court noted that international conventions and
treaties can serve as guiding principles, provided they do not conflict with domestic
law. The Court recognized the principle of non-refoulement as a critical component
of international refugee protection, which prohibits the return of refugees to
territories where they face threats to their life or freedom.

The Court emphasized that the principle of non-refoulement aligns with the
constitutional mandate to protect life and personal liberty. The Court urged the
government to consider the humanitarian implications of deporting Rohingya
refugees and to ensure that any action taken complies with India's obligations under
international human rights law.

Procedural Safeguards for Deportation:

The Supreme Court underscored the importance of procedural fairness in the

deportation process. The Court emphasized that any deportation must be carried out
in accordance with the procedure established by law, ensuring that the affected
individuals have an opportunity to be heard and to challenge the deportation order.

The Court directed the government to ensure that the Rohingya refugees detained in
Jammu are not deported without following the prescribed procedure. The Court
emphasized that the procedural safeguards must be strictly adhered to, ensuring that
the fundamental rights of the refugees are protected.

National Security Concerns:

The Supreme Court acknowledged the government's concerns regarding national

security. However, the Court emphasized that national security cannot be used as a
blanket justification for the violation of fundamental rights. The Court urged the
government to balance national security interests with humanitarian considerations
and to ensure that any action taken is proportionate and necessary.

The Court highlighted the need for a careful and nuanced approach to addressing
security concerns, ensuring that innocent refugees are not unfairly targeted or
subjected to arbitrary deportation. The Court emphasized that the government must
provide specific evidence and justification for the deportation of any individual
refugee on security grounds.

Implications of the Judgment:

For Refugees:

The judgment reaffirms the constitutional protections available to refugees and

asylum seekers in India. It emphasizes that fundamental rights, including the right
to life and personal liberty, are universal and must be upheld for all individuals,
regardless of their citizenship status. The judgment provides a legal framework for
the protection of refugees and ensures that any deportation must follow the due
process prescribed by law.

For the Government:

The judgment imposes a duty on the government to ensure that any deportation of
refugees is carried out in accordance with procedural safeguards and in compliance
with constitutional and international human rights obligations. The government must
balance national security concerns with humanitarian considerations and ensure that
its actions are proportionate and necessary.

For the Judiciary:

The judgment reinforces the judiciary's role in protecting fundamental rights and
ensuring procedural fairness in the deportation process. The Court's intervention
highlights the importance of judicial oversight in matters involving the rights of
refugees and asylum seekers. The judgment sets a precedent for future cases,
ensuring that the judiciary remains vigilant in safeguarding the rights of vulnerable
individuals.

For Society:

The judgment challenges societal attitudes towards refugees and asylum seekers,
emphasizing the importance of humanitarian considerations and the protection of
fundamental rights. It promotes greater acceptance and inclusion of refugees and
encourages a more compassionate and respectful approach to addressing their needs
and concerns.

Conclusion:

The Supreme Court's judgment in "Mohammad Salimullah and Ors. vs. Union of
India (UOI) and Ors." is a landmark decision that reaffirms the constitutional
protections available to refugees and asylum seekers in India. The judgment
emphasizes the importance of procedural fairness in the deportation process and
ensures that any action taken by the government complies with constitutional and
international human rights obligations.

The judgment provides a legal framework for the protection of Rohingya refugees
and underscores the need for a balanced approach that considers both national
security concerns and humanitarian considerations. It sets a precedent for future
cases, reinforcing the judiciary's role in safeguarding fundamental rights and
promoting a more inclusive and respectful society.

Jaishri Laxmanrao Patil vs. The Chief Minister and Ors. (09.09.2020 - SC):
MANU/SC/0686/2020; Jaishri Laxmanrao Patil and Ors. vs. The Chief
Minister and Ors. (05.05.2021 - SC): MANU/SC/0340/2021

Subject Matter: Constitutionality of Maratha Quota

Relevant Articles:
 ● Article 15: Prohibition of discrimination on grounds of religion, race, caste,
sex, or place of birth - No state shall discriminate among the citizens based
on the above-mentioned grounds.
● Article 16: There shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the State.

Key Issue:

● Whether the Act in question is ultra vires Articles 15(4) and 16(4) of the
Constitution of India, 1950 and also against the precedent laid down in the
case of Indira Sawhney?

Citation Details:

● Jaishri Laxmanrao Patil vs. The Chief Minister and Ors. (09.09.2020 - SC):
MANU/SC/0686/2020; Jaishri Laxmanrao Patil and Ors. vs. The Chief
Minister and Ors. (05.05.2021 - SC): MANU/SC/0340/2021

Summary Judgment:

Facts: The Maharashtra State Reservation (SEBC) Act, 2018 declared Marathas to
be a "Socially and Educationally Backward Class," and provided reservations to the
extent of 16 percent of the total seats in educational institutions including private
educational institutions and 16 percent of the total appointments in direct recruitment
for public services and posts under the State. The constitutional validity of the Act
was challenged by way of PILs, and while the High Court upheld the validity of the
Act, it reduced the quantum of reservations from 16% to 12% in respect of
educational institutions and from 16% to 13% in respect of public employment.
Hence, the present appeal.

Held: The Supreme Court held that the State of Maharashtra had not shown any
extraordinary situation for providing reservations to Marathas in excess of 50
percent. The Maratha community, which comprises 30 percent of the population in
the State of Maharashtra, cannot be compared to marginalized sections of the society
living in far-flung and remote areas. The State failed to make out a special case for
providing reservation in excess of 50 percent. The matters were placed before the
Hon'ble Chief Justice of India for suitable orders. Admissions to educational
institutions for the academic year 2020-21 were to be made without reference to the
reservations provided in the Act. Admissions made to Post-Graduate Medical
Courses were not to be altered. Appointments to public services and posts under the
Government were to be made without implementing the reservation as provided in
the Act.

The Supreme Court of India's judgment in "Jaishri Laxmanrao Patil vs. The Chief
Minister and Ors." addresses the contentious issue of caste-based reservations and
the constitutional limits on affirmative action. This case examines the Maharashtra
State Reservation (SEBC) Act, 2018, which provided reservations for the Maratha
community, and the constitutional validity of such reservations in light of the
precedent set by the landmark Indira Sawhney case.

Background:

India's reservation policy aims to address historical injustices and provide

opportunities for socially and educationally backward classes. However, the
implementation of this policy has been contentious, with debates about the criteria
for reservations and the extent to which reservations can be provided.

The Maharashtra State Reservation (SEBC) Act, 2018, declared the Maratha
community as a "Socially and Educationally Backward Class" and provided
reservations for them in educational institutions and public employment. The Act
faced legal challenges, with petitioners arguing that the reservations violated the
constitutional mandate and exceeded the 50 percent cap on reservations set by the
Supreme Court in the Indira Sawhney case.

Legal Issues:

The primary legal issues in this case include:

1. The constitutional validity of the Maharashtra State Reservation (SEBC)

Act, 2018.
2. The extent to which reservations can be provided without violating the 50
percent cap set by the Supreme Court.
3. The criteria for determining "socially and educationally backward classes"
and the justification for providing reservations to such classes.
Arguments:

Arguments by the Petitioners:

1. Violation of Constitutional Mandate: The petitioners argued that the

SEBC Act violated Articles 15(4) and 16(4) of the Indian Constitution by
providing reservations in excess of the 50 percent cap set by the Supreme
Court in the Indira Sawhney case. They contended that the Act was
unconstitutional and undermined the principle of equality.
2. Lack of Extraordinary Circumstances: The petitioners contended that the
Maratha community, which comprises 30 percent of the population in
Maharashtra, did not meet the criteria for "socially and educationally
backward classes" deserving of reservations. They argued that the State had
not demonstrated any extraordinary circumstances justifying reservations
beyond the 50 percent cap.
3. Impact on Merit: The petitioners argued that the excessive reservations
under the SEBC Act would undermine merit-based selection in educational
institutions and public employment, leading to a dilution of standards and
efficiency.

Arguments by the Respondents (State of Maharashtra):

1. Affirmative Action: The respondents argued that the SEBC Act was a
necessary measure to provide affirmative action for the Maratha community,
which had faced historical injustices and socio-economic disadvantages.
They contended that the Act aimed to address the underrepresentation of the
Maratha community in education and public employment.
2. Constitutional Provisions: The respondents contended that Articles 15(4)
and 16(4) of the Constitution provide the State with the authority to make
special provisions for socially and educationally backward classes. They
argued that the SEBC Act was in line with these constitutional provisions
and aimed to promote social justice and equality.
3. Justification for Exceeding Cap: The respondents argued that the 50
percent cap on reservations set by the Supreme Court in the Indira Sawhney
 case was not an absolute limit and that the State had the discretion to exceed
this cap in extraordinary circumstances. They contended that the socio-
economic conditions of the Maratha community justified the need for
reservations beyond the 50 percent limit.

Supreme Court's Analysis:

Constitutional Validity of SEBC Act:

The Supreme Court scrutinized the constitutional validity of the SEBC Act in light
of the provisions of Articles 15(4) and 16(4) of the Constitution. The Court
emphasized that while the Constitution allows for affirmative action to address
social and educational backwardness, such measures must be reasonable and within
the limits set by constitutional principles.

The Court noted that the SEBC Act provided reservations in excess of the 50 percent
cap set by the Supreme Court in the Indira Sawhney case. The Court reiterated that
the 50 percent cap is a constitutional limit aimed at maintaining a balance between
affirmative action and merit-based selection. The Court emphasized that any
departure from this limit must be justified by extraordinary circumstances.

Criteria for Socially and Educationally Backward Classes:

The Supreme Court examined the criteria for determining "socially and
educationally backward classes" and the justification for providing reservations to
such classes. The Court noted that the Maratha community, comprising 30 percent
of the population in Maharashtra, did not meet the criteria for marginalized sections
of society deserving of special reservations.

The Court emphasized that the identification of socially and educationally backward
classes must be based on objective criteria and socio-economic data. The Court
noted that the State had not provided sufficient evidence to demonstrate that the
Maratha community faced significant socio-economic disadvantages justifying
reservations beyond the 50 percent cap.

Extraordinary Circumstances for Exceeding Cap:

The Supreme Court scrutinized the State's justification for exceeding the 50 percent
cap on reservations. The Court emphasized that the cap is a constitutional limit
aimed at preventing excessive reservations and maintaining a balance between
affirmative action and merit-based selection.

The Court noted that the State had not demonstrated any extraordinary
circumstances justifying reservations beyond the 50 percent limit. The Court
observed that the Maratha community's socio-economic conditions did not warrant
special reservations beyond the constitutional cap.

Impact on Merit and Efficiency:

The Supreme Court considered the impact of excessive reservations on merit-based

selection in educational institutions and public employment. The Court emphasized
that while affirmative action is essential for promoting social justice, it must not
undermine merit and efficiency in public services.

The Court noted that reservations beyond the 50 percent cap could lead to a dilution
of standards and efficiency in education and public employment. The Court
emphasized that maintaining a balance between affirmative action and merit is
crucial for ensuring the effectiveness and efficiency of public services.

Conclusion and Directions:

The Supreme Court concluded that the SEBC Act violated the constitutional
mandate by providing reservations in excess of the 50 percent cap set by the Indira
Sawhney case. The Court held that the State had not demonstrated any extraordinary
circumstances justifying reservations beyond this limit.

The Court directed that admissions to educational institutions for the academic year
2020-21 be made without reference to the reservations provided in the SEBC Act.
The Court also directed that appointments to public services and posts under the
Government be made without implementing the reservations as provided in the Act.

Implications of the Judgment:

For the State of Maharashtra:

The judgment requires the State of Maharashtra to revisit its reservation policy and
ensure compliance with the constitutional mandate and the 50 percent cap on
reservations. The State must provide objective criteria and socio-economic data to
justify any future reservations for socially and educationally backward classes.

For Other States:

The judgment sets a precedent for other states implementing reservation policies.
States must ensure that their reservation policies comply with constitutional
principles and do not exceed the 50 percent cap set by the Supreme Court. The
judgment emphasizes the need for objective criteria and socio-economic data to
justify reservations.

For Educational Institutions and Public Employment:

The judgment reinforces the principle of merit-based selection in educational

institutions and public employment. It emphasizes that affirmative action must be
balanced with merit and efficiency, ensuring that reservations do not undermine the
effectiveness of public services.

For Marginalized Communities:

The judgment highlights the importance of providing affirmative action for

genuinely marginalized and disadvantaged communities. It underscores the need for
objective criteria and socio-economic data to identify socially and educationally
backward classes deserving of special reservations.

For the Judiciary:

The judgment reinforces the judiciary's role in ensuring compliance with

constitutional principles and safeguarding the balance between affirmative action
and merit. The Court's intervention highlights the importance of judicial oversight
in matters involving reservation policies and social justice.

Conclusion:
The Supreme Court's judgment in "Jaishri Laxmanrao Patil vs. The Chief Minister
and Ors." is a landmark decision that addresses the constitutional limits on caste-
based reservations and the criteria for determining socially and educationally
backward classes. The judgment emphasizes the importance of maintaining a
balance between affirmative action and merit-based selection, ensuring that
reservations do not exceed the 50 percent cap set by the Supreme Court in the Indira
Sawhney case.

The judgment requires the State of Maharashtra to revisit its reservation policy and
provide objective criteria and socio-economic data to justify any future reservations.
It sets a precedent for other states, emphasizing the need for compliance with
constitutional principles and the importance of objective criteria in implementing
reservation policies.

The judgment reinforces the principle of merit-based selection in educational

institutions and public employment, ensuring that affirmative action promotes social
justice without undermining efficiency and effectiveness. It highlights the judiciary's
role in safeguarding constitutional principles and promoting a balanced approach to
social justice and affirmative action.
Kerala Union of Working Journalists vs. Union of India (UOI) and Ors.
(28.04.2021 - SC): MANU/SC/0332/2021

Subject Matter: Habeas Corpus Petitions

Relevant Article:

● Article 32: Remedies for enforcement of rights conferred by this Part - The
right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed. The Supreme
Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto, and
certiorari, whichever may be appropriate, for the enforcement of any of the
rights conferred by this Part.

Key Issue:

● Whether the accused is entitled to be released for medical assistance?

Citation Details:

● Kerala Union of Working Journalists vs. Union of India (UOI) and Ors.
(28.04.2021 - SC): MANU/SC/0332/2021

Facts: The present petition was filed seeking the release of an alleged detenu who
was allegedly taken into illegal custody without serving any notice or order. The
petition was contested on the ground of maintainability. However, release on bail
was sought through an interim application due to the detainee's deteriorating health
condition.

Held: The alleged detenu has alternative remedies including the right to approach
the competent court for the grant of bail and/or the High Court under Article 226 of
the Constitution of India and/or under Section 482 of the Code of Criminal
Procedure for redressal of his grievances. Owing to the apparent precarious health
condition of the arrestee, it is necessary to provide adequate and effective medical
assistance to him. As soon as the arrestee recovers, and the doctors certify him fit to
be discharged, he would be shifted back to the concerned jail. The arrestee is
meanwhile at liberty to avail himself of appropriate remedies in accordance with the
law.

The case of "Kerala Union of Working Journalists vs. Union of India and Ors."
revolves around the use of the writ of habeas corpus, which is one of the most potent
instruments in the hands of the judiciary to protect personal liberty. This writ serves
as a critical check on arbitrary detention and ensures that no individual is deprived
of liberty without due process. This case particularly emphasizes the role of habeas
corpus in the context of detentions under potentially contentious circumstances and
highlights the judiciary's role in safeguarding constitutional rights.

Background:

The backdrop of this case involves the detention of a journalist, who was allegedly
taken into custody without being served a proper notice or order, leading to
allegations of illegal detention. The Kerala Union of Working Journalists filed a
petition on his behalf, invoking the writ of habeas corpus to secure his release,
especially in light of his deteriorating health condition.

Habeas corpus, which translates to "you shall have the body," is a legal procedure
that demands an individual's presence before the court to ascertain the legality of
their detention. This writ is enshrined in Article 32 of the Indian Constitution,
reflecting its importance as a fundamental right available to all citizens for the
enforcement of their rights. The primary function of this writ is to prevent unlawful
detention and to provide a quick judicial review of the detaining authority's actions.

Legal Issues:

The primary legal issues in this case include:

1. The maintainability of the habeas corpus petition in the context of alternative

remedies available under the legal framework.
2. The obligation of the state to ensure the health and well-being of detainees,
particularly when they are under judicial custody.
3. The procedural requirements for a valid arrest and detention, and whether
they were adhered to in this instance.
Arguments:

Arguments by the Petitioners:

1. Illegal Detention: The petitioners argued that the detainee was taken into
custody without being served a proper notice or order, amounting to illegal
detention. They contended that the detention was arbitrary and violated the
detainee's fundamental rights under Articles 21 and 22 of the Constitution.
2. Deteriorating Health Condition: The petitioners highlighted the detainee's
deteriorating health condition, arguing that immediate medical assistance
was necessary to prevent any further harm. They emphasized that the state
has a constitutional obligation to ensure the health and safety of individuals
in its custody.
3. Urgency of Habeas Corpus: The petitioners invoked the writ of habeas
corpus, emphasizing its importance as a remedy for unlawful detention.
They argued that the writ is essential for securing the immediate release of
individuals detained without due process and ensuring their right to life and
personal liberty.

Arguments by the Respondents (Union of India and Others):

1. Maintainability of Petition: The respondents contested the maintainability

of the habeas corpus petition, arguing that the detainee had alternative
remedies available under the law. They contended that the detainee could
approach the competent court for bail or seek relief under Article 226 of the
Constitution or Section 482 of the Code of Criminal Procedure.
2. Lawful Detention: The respondents argued that the detention was lawful
and conducted in accordance with procedural requirements. They contended
that the arrest was made based on credible evidence and in compliance with
legal provisions.
3. Adequate Medical Care: The respondents assured the Court that the
detainee was receiving adequate medical care and that his health condition
was being monitored. They argued that there was no immediate need for his
release on medical grounds, as the state was fulfilling its obligations to
ensure his well-being.
Supreme Court's Analysis:

Maintainability of Habeas Corpus Petition:

The Supreme Court examined the maintainability of the habeas corpus petition,
considering the availability of alternative remedies under the legal framework. The
Court acknowledged that while habeas corpus is a fundamental remedy for unlawful
detention, it is not the sole remedy available to detainees. The Court emphasized that
detainees have the right to approach the competent court for bail or seek relief under
Article 226 of the Constitution or Section 482 of the Code of Criminal Procedure.

The Court, however, underscored the urgency and importance of habeas corpus
petitions in cases of unlawful detention, particularly when there are concerns about
the detainee's health and well-being. The Court emphasized that the writ of habeas
corpus serves as an essential safeguard against arbitrary detention and ensures the
protection of personal liberty.

Health and Well-being of Detainees:

The Supreme Court placed significant emphasis on the state's constitutional

obligation to ensure the health and well-being of detainees. The Court highlighted
that Article 21 of the Constitution guarantees the right to life and personal liberty,
which includes the right to adequate medical care and treatment.

In this context, the Court directed the respondents to provide immediate and
effective medical assistance to the detainee, given his precarious health condition.
The Court emphasized that the state has a duty to ensure that detainees receive proper
medical care and that their health and safety are not compromised while in custody.

Procedural Requirements for Detention:

The Supreme Court scrutinized the procedural requirements for a valid arrest and
detention, considering whether they were adhered to in this instance. The Court
reiterated that any arrest or detention must comply with the procedural safeguards
outlined in the Constitution and relevant legal provisions.

The Court noted that the detention of the journalist appeared to lack proper
procedural compliance, raising concerns about the legality of the detention. The
Court emphasized that any deviation from procedural requirements undermines the
legitimacy of the detention and violates the detainee's constitutional rights.

Conclusion and Directions:

The Supreme Court concluded that the detainee's health condition necessitated
immediate medical assistance and directed the respondents to provide adequate and
effective medical care. The Court emphasized that as soon as the detainee's health
improves and he is certified fit to be discharged by the doctors, he should be shifted
back to the concerned jail.

The Court also highlighted that the detainee is at liberty to avail himself of
appropriate remedies in accordance with the law, including approaching the
competent court for bail or seeking relief under Article 226 of the Constitution or
Section 482 of the Code of Criminal Procedure.

Implications of the Judgment:

For Detainees:

The judgment underscores the importance of the writ of habeas corpus as a

fundamental remedy for unlawful detention. It emphasizes that detainees have the
right to seek immediate judicial review of their detention and to receive adequate
medical care while in custody. The judgment reaffirms the constitutional protections
available to detainees and ensures that their health and well-being are safeguarded.

For Law Enforcement Agencies:

The judgment imposes a duty on law enforcement agencies to ensure that all
detentions are conducted in compliance with procedural requirements and
constitutional safeguards. It emphasizes the need for transparency and accountability
in the arrest and detention process and underscores the importance of adhering to
legal provisions to prevent arbitrary detention.

For the Judiciary:

The judgment reinforces the judiciary's role in protecting personal liberty and
ensuring procedural fairness in cases of detention. The Court's intervention
highlights the importance of judicial oversight in preventing unlawful detention and
safeguarding the rights of detainees. The judgment sets a precedent for future cases,
ensuring that the judiciary remains vigilant in upholding constitutional principles
and protecting individual rights.

For Society:

The judgment promotes greater awareness and understanding of the importance of

habeas corpus as a safeguard against arbitrary detention. It underscores the need for
societal vigilance in protecting personal liberty and ensuring that individuals are not
deprived of their rights without due process. The judgment encourages a more
humane and respectful approach to the treatment of detainees, emphasizing the
importance of their health and well-being.

Conclusion:

The Supreme Court's judgment in "Kerala Union of Working Journalists vs. Union
of India and Ors." is a landmark decision that reaffirms the importance of habeas
corpus as a fundamental remedy for unlawful detention. The judgment underscores
the constitutional protections available to detainees, particularly the right to life and
personal liberty, and emphasizes the state's duty to ensure the health and well-being
of individuals in its custody.

The judgment highlights the need for procedural fairness in the arrest and detention
process and underscores the importance of adhering to constitutional and legal
provisions. It sets a precedent for future cases, ensuring that the judiciary remains
vigilant in safeguarding personal liberty and protecting individual rights against
arbitrary detention.

The judgment promotes a more humane and respectful approach to the treatment of
detainees, emphasizing the importance of their health and well-being. It reinforces
the judiciary's role in protecting constitutional principles and ensures that detainees
have access to appropriate remedies to address any grievances related to their
detention.

In conclusion, the Supreme Court's judgment serves as a powerful reminder of the

importance of habeas corpus as a safeguard against unlawful detention and
underscores the judiciary's commitment to upholding constitutional rights and
ensuring justice for all individuals.

Justice K. S. Puttaswamy (Retd.) and Anr. vs Union of India

The landmark case of Justice K. S. Puttaswamy (Retd.) and Anr. vs Union of India
revolutionized the understanding of the Right to Privacy in India. The Supreme
Court of India, in its judgment, declared that the Right to Privacy is a Fundamental
Right under Articles 14, 19, and 21 of the Indian Constitution. The judgment
scrutinized the constitutional validity of the Aadhaar Act, striking down certain
provisions that were deemed unconstitutional. The Court's decision underscored that
the Right to Privacy is integral to the right to life and personal liberty under Article
21 and the freedoms guaranteed by Part III of the Constitution. This landmark ruling
also overturned previous Supreme Court judgments in Kharak Singh vs State of UP
and M.P. Sharma vs Satish Chandra, which had held that the Right to Privacy was
not a Fundamental Right under the Indian Constitution.

Background of the Case

The Aadhaar Act was challenged on the grounds that it violated the Right to Privacy
of Indian citizens. The Aadhaar scheme, initiated by the Government of India, aimed
to provide a unique identification number to every Indian resident. However,
concerns were raised about the potential for state surveillance and the misuse of
personal data. The case brought before the Supreme Court sought to address these
concerns and determine the constitutional validity of the Aadhaar Act.

The Supreme Court's decision was significant because it involved the interpretation
of fundamental rights and the balance between state interests and individual privacy.
The Court's judgment in the Puttaswamy case has had far-reaching implications for
privacy laws and the use of personal data in India.

How to Read the Puttaswamy Judgment

The Puttaswamy judgment spans 547 pages and includes numerous insightful
observations and six opinions. However, it is crucial to focus on the majority view,
which is conclusive for subsequent cases. In this case, the plurality opinion was
written by Justice Chandrachud on behalf of four judges (Kehar C.J., Agrawal J.,
Nazeer J., and himself), while the remaining five judges (Nariman J., Kaul J., Bobde
J., Sapre J., and Chelameswar J.) wrote concurring opinions. Justice Chandrachud's
opinion, though significant, does not represent the majority because it was not signed
by five or more judges. Concurring opinions, like dissenting opinions, are not legally
binding and do not set a precedent. Therefore, the binding element of the decision is
the order signed by all nine judges.

Judgments on Privacy Before Puttaswamy

M.P. Sharma vs. Satish Chandra (1954)

The right to privacy was first addressed in this case, where an eight-judge bench
decided that it is not a fundamental right. The Court held that the power of search
and seizure is an overriding state authority for protecting social security, regulated
by law in any jurisprudence system. The Court saw no justification to convert it into
a fundamental right through strained interpretation.

Kharak Singh vs. State of U.P. (1964)

In this case, a six-judge bench ruled by a 4:2 majority that the right to privacy is not
guaranteed under the Indian Constitution. The majority held that attempts to track a
person's whereabouts, while invasive of privacy, do not violate a fundamental right
guaranteed by Part III of the Constitution. However, the minority opinion by Justices
K. Subba Rao and J.C. Shah argued that the right to personal liberty includes
freedom from encroachments on private life and that privacy is a necessary
component of human liberty.

Gobind vs. State of M.P. (1975)

A three-judge bench in this case held that the right to privacy is not absolute and that
surveillance by domiciliary visits might not always be unreasonable. The Court
upheld legislation imposing reasonable restrictions on privacy for compelling state
interests, stating that the right to privacy of movement cannot be absolute.

People’s Union for Civil Liberties vs. Union of India (2004)

A three-judge panel in this case declared that the right to privacy is secondary to
state security.

State of Maharashtra vs. Bharat Shanti Lal Shah (2008)

A three-judge panel in this case acknowledged that listening to conversations

violates privacy but held that this right can be limited by legally sound procedures.
The Court emphasized that the process must be fair, just, and reasonable, and not
arbitrary or oppressive.

District Registrar and Collector vs. Canara Bank (2005)

A division bench in this case affirmed that every citizen has a right to protect their
privacy. However, the right to privacy cannot be asserted over public records,
including court documents.

Supreme Court Advocates-on-Record Assn. vs. Union of India (2016)

In this case, the constitutionality of the 99th Constitutional Amendment and the
National Judicial Appointments Commission Act, 2014 (NJAC Act) was questioned.
The five-judge bench emphasized the delicate balance between transparency and
confidentiality, noting that sensitive information made public can significantly
impact an individual's reputation and dignity.

Summary of Facts

The Aadhaar (Authentication) Regulations, 2016, the PML (Maintenance of

Records) Fifth Amendment Rules, 2017, and various notifications issued under
Section 7 of the Aadhaar Act, which made Aadhaar mandatory for obtaining
benefits, faced legal challenges. The Aadhaar scheme and Act were criticized for
allegedly infringing on the right to privacy. Additionally, the enactment of the Act
as a Money Bill was contested.

The project 'Unique Identification for BPL Families' initiated by the Government of
India aimed to create a Unique Identification database. The Planning Commission
of India passed a notification on UIDAI (Unique Identification Authority of India)
in January 2009, and the National Identification Authority of India Bill was passed
in 2010. Retired Justice K S Puttaswamy and Mr. Parvesh Sharma filed a PIL Writ
Petition in the Supreme Court in November 2012, challenging the validity of
Aadhaar.

The petitioners argued that the Aadhaar scheme violated fundamental rights,
particularly the right to privacy under Article 21. After several orders and the passing
of the Aadhaar Act in 2016, another writ petition challenging the Act's vires was
filed and merged with the original petition.

Former Union Minister and Congress leader Jairam Ramesh also moved the
Supreme Court in May 2017, challenging the decision to treat the Aadhaar Bill as a
Money Bill.

On August 24, 2017, the Supreme Court ruled that the right to privacy is a
Fundamental Right under Article 21. The hearing of the Aadhaar case began on
January 17, 2018, and on April 25, 2018, the Supreme Court questioned the Centre
on linking Aadhaar with mobile numbers. On September 26, 2018, the Supreme
Court upheld the validity of the Aadhaar Act but struck down certain provisions,
such as the mandatory linking of Aadhaar with mobile numbers, bank accounts, and
school admissions.

Need for a Nine-Judge Bench

The debate over whether privacy is a fundamental right first surfaced in 2015 before
a three-judge Supreme Court panel examining the constitutionality of the Aadhaar
system. The Attorney General argued that the larger benches in M.P. Sharma and
Kharak Singh had refused to recognize the right to privacy as a fundamental
freedom. Consequently, the case was referred to a five-judge bench, which then
referred the constitutional issue to a nine-judge bench to ensure institutional integrity
and judicial discipline.

Identification of Parties

Petitioner: Justice K.S. Puttaswamy (Retd.)

Respondent: Union of India
Bench: Justice D. Misra, Justice D.Y. Chandrachud, Justice A. Bhushan, Justice
A.M. Khanwilkar, Justice A. Sikri

Issues Before the Court

1. Whether the Aadhaar Project has a propensity to create a surveillance state

and is thus unconstitutional on this ground.
2. Whether the Aadhaar Project violates the right to privacy of citizens and is
unconstitutional on this ground.
3. Whether Sections 7 and 8 of the Aadhaar Act apply to children.
4. Whether various provisions and regulations of the Aadhaar Act are
unconstitutional.
5. Whether the Aadhaar Act can be treated as a 'Money Bill' within the
meaning of Article 110 of the Indian Constitution.
6. Whether Section 139AA of the Income Tax Act, 1961 violates the right to
privacy of citizens.
7. Whether Rule 9(a) of the Prevention of Money Laundering (Maintenance of
Records) Rules, 2005, and subsequent notifications mandating linking of
Aadhaar with bank accounts are valid.
8. Whether the Department of Telecommunications' circular mandating linking
of mobile numbers with Aadhaar is illegal and unconstitutional.
9. Whether certain actions taken by respondents contravene interim court
orders.

Contentions by Parties on Issues

Petitioners

The petitioners argued that the Aadhaar Act's provisions could exclude deserving
beneficiaries from receiving government subsidies and services. They contended
that the Act could potentially create a surveillance state, violating citizens' rights and
liberties. The main arguments were that the Aadhaar Act imposed restrictions that
were not reasonable under Article 19, thus violating the right to privacy under Article
21. They argued that the Act's requirement to provide biometric and demographic
information was arbitrary and violated the principle of proportionality under Article
14.
Prominent lawyers, including Shyam Divan, Kapil Sibal, Arvind Datar, and P.
Chidambaram, presented arguments against the Aadhaar Act. Shyam Divan
contended that the Act made benefits conditional on providing biometric
information, violating the right to privacy. Kapil Sibal argued that mandatory
disclosure of personal information violated the right to make choices, recognized as
a part of the right to privacy. Arvind Datar argued that the Act was unconstitutional
as it could not be treated as a money bill, and mandatory linking of bank accounts
with Aadhaar violated the right to privacy. P. Chidambaram contended that the
Aadhaar Act failed to meet the criteria for a money bill and was therefore void.

Respondents

The respondents argued that the Aadhaar Act aimed to ensure that eligible citizens
received government benefits and subsidies. They contended that the Act did not
seek any information that could violate the right to privacy. The respondents
submitted that the demographic information required by the Act was minimal and
already in the public domain. They argued that the biometric information collected
was non-invasive and necessary for unique identification.

The respondents emphasized that Aadhaar was widely used by citizens to access
government services and benefits, and restricting it would create problems. They
argued that Aadhaar helped eliminate duplication and impersonation in government
schemes, ensuring timely and direct payments to beneficiaries. The respondents also
stated that the data collected under Aadhaar was secure and encrypted, stored in the
Government of India's servers, which had high-security standards.

Observations of the Court

The Supreme Court's nine-judge bench held that the right to privacy is a fundamental
right under Article 21 and part of the freedoms guaranteed by Part III of the
Constitution. The Court overruled the judgments in M.P. Sharma and Kharak Singh,
which had held that the right to privacy is not guaranteed by the Constitution.

Nature and Characteristics of the Right to Privacy

The right to privacy is a natural, inherent, and inalienable right, essential for ensuring
individual dignity and liberty. It encompasses various aspects, including bodily
privacy, spatial privacy, communicational privacy, proprietary privacy, intellectual
privacy, decisional privacy, associational privacy, behavioral privacy, and
informational privacy. Privacy is integral to the right to life and personal liberty and
is protected by Articles 14, 19, and 21 of the Constitution.

Limitations on the Right to Privacy

The right to privacy is not absolute and is subject to reasonable restrictions imposed
by the state for legitimate interests such as national security, prevention of crime,
public health, and ensuring good governance. Any invasion of privacy must meet
three conditions: legality, necessity, and proportionality.

Judgment

The Supreme Court upheld the validity of the Aadhaar Act, stating that sufficient
security measures were in place to protect the data collected. The Court emphasized
that Aadhaar was necessary for availing government benefits and subsidies, ensuring
that these reached the intended beneficiaries. However, the Court struck down
Section 57 of the Act, which allowed private entities to use Aadhaar for
authentication, as unconstitutional. It also ruled that Aadhaar could not be made
mandatory for linking with mobile numbers, bank accounts, or for school
admissions.

The Court clarified that children could not be denied benefits of government
schemes for not having Aadhaar. It also struck down the national security exception
under the Aadhaar Act, emphasizing the need for greater privacy protections.

Conclusion

The Supreme Court's judgment in the Puttaswamy case marked a significant

development in the recognition and protection of the right to privacy in India. The
decision reinforced that privacy is a fundamental right integral to the right to life and
personal liberty. The ruling upheld the validity of the Aadhaar Act while striking
down provisions that violated privacy and individual rights. This landmark judgment
has had a profound impact on privacy laws and the use of personal data in India,
ensuring that the rights and liberties of citizens are protected in the digital age.

The Role and Structure of the Judiciary in India: An In-Depth Analysis

Case: Supreme Court of India v. Subhash Chandra Agarwal, (2020) 5 SCC 481

An independent judiciary is a cornerstone of any democratic setup governed by the

Rule of Law. It safeguards the rights of citizens and serves as the guardian of the
Constitution. Judges are expected to decide cases impartially, without fear or favour,
upholding the Constitution and the laws. A pertinent question arises: is the Supreme
Court Collegium the sole authority in selecting judges who will be independent and
impartial? Moreover, does the involvement of the executive wing of the state or
members of civil society affect judicial independence?

Constitutional Provisions on Appointment of Judges

Article 124 of the Indian Constitution mandates that every Supreme Court judge be
appointed by the President after consulting Supreme Court and High Court judges
deemed necessary by the President. For appointing a judge other than the Chief
Justice, the Chief Justice of India (CJI) must be consulted. Similarly, Article 217
requires that High Court judges be appointed by the President after consulting the
CJI, the Governor of the state, and, in the case of appointing a judge other than the
Chief Justice, the Chief Justice of the High Court.

These provisions specify that while the President is the appointing authority,
consultation with the judiciary is essential. This contrasts with Articles 103 and 192,
where the President or Governor must act according to the opinion of the Election
Commission when deciding the disqualification of members of Parliament or State
Legislatures. The Constitution's framers used distinct expressions—"consultation"
and "shall act according to such opinion"—indicating different intended meanings.

Supreme Court Judgments: From Presidential Primacy to Collegium

Dominance

First Judges Case (1981)

A seven-judge bench held that "consultation" in Articles 124 and 217 does not mean
"concurrence." In case of disagreement among constitutional functionaries, the
Union Government's decision prevails, and the CJI's opinion does not have primacy.
Thus, appointing judges was seen as an executive function resting with the President.

Second Judges Case (1993)

A nine-judge bench overruled the First Judges Case, establishing that the process of
appointing judges is an integrated "participatory consultative process." A Collegium
comprising the CJI and two senior-most Supreme Court judges was given the final
decision-making power, with the judiciary's opinion symbolized by the CJI's view
having primacy.

Third Judges Case (1998)

Another nine-judge bench reiterated the Second Judges Case's view but expanded
the Collegium for Supreme Court appointments to include the CJI and four senior-
most judges. For High Court appointments, the Collegium included the CJI and two
senior-most judges.

National Judicial Appointment Commission (NJAC)

Legislative Attempts and NJAC's Formation

Parliament proposed the NJAC four times. The Constitution (67th Amendment) Bill,
1990, and subsequent bills in 2002, 2003, and 2013 aimed to establish a commission
for judicial appointments. Finally, the Constitution (121st Amendment) Bill, 2014,
passed both Houses and was ratified by most State Legislative Assemblies,
becoming the Constitution (99th Amendment) Act, 2014. This Act amended Article
124, mandating appointments based on NJAC's recommendations, which included
the CJI, two senior-most Supreme Court judges, the Union Law Minister, and two
eminent persons.

NJAC Struck Down

In the Fourth Judges Case (2016), the Supreme Court struck down the 99th
Amendment and NJAC Act, asserting that they impeded judicial independence, a
basic structure of the Constitution. The Court held that NJAC did not provide
adequate judicial representation, compromising the judiciary's primacy in
appointments. The inclusion of the Union Law Minister and two eminent persons
was deemed unconstitutional.

Collegium System: Transparency and Criticisms

The Supreme Court's website has published Collegium resolutions regarding judicial
appointments and transfers to ensure transparency. However, from October 2019,
only statements, not detailed resolutions, were uploaded, reducing transparency.
Retired Collegium judges have publicly criticized its functioning, citing lack of
transparency and internal disagreements.

Fali S. Nariman's Critique

Fali S. Nariman, a noted constitutional lawyer, in his book "God Save the Hon’ble
Supreme Court" (2018), highlighted issues of transparency, objectivity, and
collegiality in the Supreme Court. He criticized internal disputes and the lack of
response to public allegations, stressing the need for greater transparency and
collegiality among judges.

RTI Judgment on Collegium

In a case initiated by RTI activist Subhash Chandra Agarwal, the Supreme Court
held that judges' asset disclosure does not violate privacy but restricted the disclosure
of detailed Collegium proceedings. Despite this, post-2019, the Supreme Court's
website does not fully comply with transparency norms established earlier.

Transfer of Judges: Lack of Objective Criteria

Controversial transfers, such as those of Justices Sanjib Banerjee and V.K.

Tahilramani, have raised concerns about the Collegium's decision-making process.
These transfers often lack clear, objective criteria, affecting judicial independence
and raising public suspicion.

Chief Justice Ranjan Gogoi’s Autobiography

Justice Ranjan Gogoi's autobiography reveals internal Collegium disputes and lack
of trust among judges, further highlighting the need for a more transparent and robust
appointment system.

Allegations of Corruption

Prashant Bhushan's 2009 allegations against former Chief Justices remain

unresolved, with contempt proceedings still pending. Such unresolved issues erode
public trust in the judiciary.

Memorandum of Procedure (MoP) on Appointment of Judges

The 1999 MoP, formulated with the CJI's consultation, prescribes timelines for
judicial appointments. However, delays persist, with many High Court vacancies
remaining unfilled. The Supreme Court, in PLR Projects (2021), reiterated the need
for timely appointments but did not set a timeline for the Collegium's
recommendations.

High Courts: Pendency of Cases and Strength of Judges

As of March 2022, over 58 lakh cases are pending in High Courts, with many being
more than ten years old. Despite increasing workloads, many posts of Additional
Judges remain, creating unnecessary distinctions. The Supreme Court has repeatedly
emphasized the need for timely appointments to ensure speedy justice.

Additional High Court Judges: Probationary Status

Additional Judges, despite similar appointment processes to permanent Judges, face

repeated extensions and performance evaluations, creating a probationary
environment that can undermine judicial independence.

Reiteration by Supreme Court Collegium: Non-Compliance by Government

The government has often delayed or ignored appointments even after Collegium
reiterations, undermining the judicial appointment process.

Suggestions for Improvement

Broad-Based Judicial Commission

A balanced approach involving both the judiciary and the executive in judicial
appointments can inspire greater public confidence. A Judicial Appointment
Commission with transparent criteria and checks and balances is necessary.

Collegium Resolutions

Full transparency requires that all Collegium resolutions be uploaded on respective

websites, detailing the process and considerations for each appointment.

No Transfer of Chief Justices

The Collegium and the government should establish clear policies to avoid
transferring Chief Justices, ensuring they remain in their positions until retirement
or elevation.

Sanctioned Strength of High Court Judges

The sanctioned strength should be periodically reviewed, converting Additional

Judge posts to permanent positions to manage increasing case loads.

Revisiting the entire selection process for judicial appointments is crucial.

Implementing a system with checks and balances, transparency, and objective
criteria will strengthen judicial independence and public trust. Inclusion of eminent
persons in the selection process can enhance credibility and transparency, aligning
the judiciary with the sovereign will of the people.

CRIMINAL LAW

Supreme Court Decision on Unnatural Death in Matrimonial Home

Sections 304B and 498A of the Indian Penal Code (IPC)

Section 304B: Dowry Death

Section 304B was added to the Indian Penal Code (IPC) through the Dowry
Prohibition (Amendment) Act, 1986, addressing the critical issue of dowry deaths
in India. This provision defines a 'dowry death' as the death of a woman caused by
burns, bodily injury, or occurring under unnatural circumstances within seven years
of marriage. Furthermore, it must be demonstrated that she was subjected to cruelty
or harassment by her husband or his relatives concerning a demand for dowry soon
before her death. The essential elements of this section include the occurrence of
death within seven years of marriage, the death resulting from burns, bodily injury,
or unnatural circumstances, and evidence of cruelty or harassment related to dowry
demands shortly before her demise. The punishment prescribed under this section is
severe, with a minimum imprisonment of 7 years, which may extend to life
imprisonment. A key aspect of this law is the legal presumption that if a woman has
been subjected to cruelty or harassment by her husband or his relatives regarding
dowry soon before her death, the law assumes that the husband or the relative is
responsible for her death.

Section 498A: Husband or Relative of Husband of a Woman Subjecting Her to

Cruelty

Introduced in 1983, Section 498A of the IPC aims to protect married women from
cruelty by their husbands or his relatives. The term 'cruelty' encompasses any willful
conduct likely to drive a woman to suicide or to cause grave injury or danger to her
life, limb, or health (mental or physical). It also includes harassment with the intent
to coerce her or her relatives to meet any unlawful demand for property or valuable
security or due to failure in meeting such demand. The essential requirements for
this section are that the victim is a married woman who has been subjected to cruelty
or harassment by her husband or his relatives. This can include both physical and
mental cruelty. The offense under Section 498A is cognizable, non-bailable, and
non-compoundable, carrying a punishment of up to three years in prison along with
a fine. The objective of this legal provision is to provide immediate relief to victims
of cruelty and to act as a deterrent to husbands and their families from engaging in
harassment, particularly in relation to dowry.

Both Section 304B and Section 498A are pivotal in the legal battle against the social
evils of dowry and domestic violence in India. They reflect the efforts of the legal
system to protect married women from these pervasive issues and highlight the
commitment to uphold women's rights within the matrimonial home.

Case Citation: Charan Singh v. State of Uttarakhand, 2023 SC 454

Date of Decision: April 20, 2023

Bench: Justice Abhay S Oka and Justice Rajesh Bindal

Judgment Authored by: Justice Rajesh Bindal

Background of the Case: The matrimonial union between the appellant and the
deceased was solemnized in 1993. The case revolves around the unfortunate death
of the deceased under unnatural circumstances in her matrimonial home on June 22,
1995, within seven years of marriage—a period significant under Indian legal
provisions concerning dowry death. Allegations arose shortly after the marriage that
the deceased was subjected to demands for dowry, initially for a motorcycle and
later for land, which her family was unable to fulfill. These demands were reportedly
made during her visits to her parental home.

Incident and Allegations: The specific incident leading to the case occurred on the
morning of June 22, 1995, when it was alleged that the deceased was beaten and
strangled to death by her husband, the appellant herein, along with his brother and
mother. The family of the deceased accused them of hurriedly cremating her body
on the same day without notifying her parents, who lived approximately 290
kilometers away. The deceased's parents were informed, but they could not arrive in
time. However, other relatives, including the maternal grandmother and two
maternal uncles who lived very close to the deceased’s matrimonial home, were
present at the cremation but did not report any misconduct or raise any concerns to
the authorities.

Judicial Proceedings: At the trial court level, the appellant was convicted and
sentenced to rigorous imprisonment—10 years under Section 304-B (dowry death),
2 years under Section 498-A (husband or relative of husband of a woman subjecting
her to cruelty), and 2 years under Section 201 IPC. The High Court of Uttarakhand
later modified the sentences, reducing the term under Section 304-B to seven years
and acquitted the brother-in-law and mother-in-law.

Supreme Court's Analysis and Conclusion: The Supreme Court scrutinized the
evidences and testimonies, particularly focusing on the requirements for a conviction
under Section 304-B and the related presumption under Section 113-B of the
Evidence Act. The court observed that for such a presumption to apply, there must
be clear evidence of cruelty or harassment proximate to the time of death. In this
case, the last incidents of reported dowry demands were stated to have occurred
significantly earlier than the time of death, not fulfilling the 'soon before her death'
criterion necessary for a conviction under the said sections. The testimonies of the
relatives who were present at the time of cremation did not support the claims of
recent harassment or cruelty.

Consequently, the Supreme Court ruled that the prerequisites for raising the
presumption of dowry death were not satisfied, leading to the conclusion that the
conviction of the appellant under Sections 304-B and 498-A could not be sustained.
This decision underscores the judicial requirement for specific and timely evidence
of cruelty to uphold convictions in dowry death cases.

Supreme Court Orders High Courts to Establish Vulnerable Witness

Deposition Centres by April 30, 2024

Case Title: Smruti Tukaram Badade v. The State Of Maharashtra and Anr., Citation:
2024 SC 43

In a landmark directive, the Supreme Court has instructed all High Courts to set up
Vulnerable Witnesses Deposition Centres (VWDCs) in every district by April 30,
2024. This decision aims to provide a secure environment for vulnerable witnesses
to give their statements. The bench, comprising Chief Justice of India DY
Chandrachud, Justices J.B. Pardiwala, and Manoj Misra, issued this directive while
hearing a Miscellaneous Application related to the establishment of vulnerable
witness courtrooms, referencing the Supreme Court's 2018 decision in State of
Maharashtra v Bandu @ Daulat (2018) 11 SCC 163.

In that 2018 decision, the Supreme Court mandated the creation of special centers
for the examination of vulnerable witnesses in criminal cases. Further, in 2021,
Justices DY Chandrachud and Surya Kant provided detailed instructions to facilitate
the implementation of these centers, emphasizing the necessity of creating a safe and
barrier-free environment for vulnerable witnesses.

A permanent VWDC committee in every High Court is part of the directive, with
periodic training programs for judicial officers, bar members, and court staff. Justice
Gita Mittal, former Chief Justice of the Jammu and Kashmir High Court, was
appointed to lead the national VDWC training program. Her term has been extended
to oversee the ongoing establishment and monitoring of VWDCs.

Justice Mittal is also tasked with preparing a fresh, updated status report by the first
week of May 2024, detailing the compliance status of the High Courts. The Supreme
Court noted that the High Courts of Odisha and Madras have yet to fully implement
the VWDC guidelines from the 2022 model by Justice Mittal. Specifically, Odisha
has not implemented the guidelines for civil cases, and Tamil Nadu has not taken
any action regarding the expanded definition of vulnerable witnesses.

To address this, the Court has allowed Justice Mittal to inform the Registrars General
of the Odisha and Madras High Courts to ensure compliance by the April 30, 2024
deadline.

SC Issues Directions to Make Voter’s Right to Information More Effective;

Penalizes Political Parties for Non-Compliance

Case: Rambabu Singh Thakur, (2020) 3 SCC 733

The Supreme Court of India has taken a significant step to reinforce the voter's right
to information and ensure transparency in the political process by penalizing
political parties for failing to comply with earlier directions regarding the disclosure
of criminal antecedents of candidates. This landmark decision, delivered by a
Division Bench comprising Justices R.F. Nariman and B.R. Gavai, highlights the
ongoing struggle to cleanse Indian politics of criminal elements and strengthen
democratic accountability.

Background

The contempt petition that led to this judgment arose out of the Bihar Legislative
Assembly elections held in October/November 2020. Brajesh Singh, an advocate
registered with the Bar Council of Delhi, filed the petition, bringing to the Court's
notice the non-compliance with directions given in the earlier case of Rambabu
Singh Thakur v. Sunil Arora, (2020) 3 SCC 733. This case had mandated political
parties to disclose criminal antecedents of candidates, a directive that several parties
had flouted.
Earlier Directions

The Public Interest Foundation v. Union of India, (2019) 3 SCC 224 case laid the
groundwork for these directions. The Supreme Court had issued several mandates
requiring candidates and political parties to disclose information about the criminal
backgrounds of candidates. Following these directives, the Rambabu Singh
Thakur, (2020) 3 SCC 733 case further clarified these requirements, stipulating
that:

1. Mandatory Disclosure: Political parties must upload detailed information

about candidates with pending criminal cases on their websites, including the
nature of the offenses and relevant details like the case number and the court
concerned.
2. Reasons for Selection: Parties must provide reasons for selecting candidates
with criminal backgrounds, focusing on qualifications and merit rather than
mere electoral winnability.
3. Publication Requirements: This information must be published in a local
vernacular newspaper and a national newspaper, as well as on the party’s
official social media platforms.
4. Timelines: The information should be published within 48 hours of candidate
selection or at least two weeks before the nomination filing deadline.
5. Compliance Reporting: Political parties must report compliance to the
Election Commission of India (ECI) within 72 hours of selecting a candidate.
6. ECI Reporting: If parties fail to submit compliance reports, the ECI must
inform the Supreme Court, indicating non-compliance with its orders.

Following the Rambabu Singh Thakur decision, the ECI directed all recognized
political parties to adhere to these instructions and introduced new forms (C-7 and
C-8) for compliance reporting.

Bihar Legislative Assembly Elections, 2020

In the Bihar Legislative Assembly elections of 2020, reports from the Association
for Democratic Reforms revealed that 32% of the candidates had criminal
antecedents, and 68% of the winning candidates had such backgrounds. These
figures included serious charges like murder, kidnapping, and crimes against
women.

The ECI reported that out of 10 recognized political parties contesting the elections,
8 had submitted information about candidates' criminal backgrounds, while the
Communist Party of India (Marxist) and the Nationalist Congress Party did not
comply with the Supreme Court's directives.

Contempt of Court Findings

Senior Advocate K.V. Viswanathan, acting as Amicus Curiae, prepared a detailed

report showing widespread non-compliance with the Supreme Court's directions
among political parties. The Court found several parties guilty of contempt for
failing to adhere to the directives issued in the Rambabu Singh Thakur case. The
violations included:

1. Janta Dal (United): Inadequate reasons for candidate selection and vague,
mechanical compliance with publication requirements.
2. Rashtriya Janta Dal: Cited "winnability" as the sole reason for candidate
selection, contrary to the Court's directions.
3. Lok Janshakti Party: Provided identical reasons for multiple candidates and
filled forms mechanically.
4. Indian National Congress: Published criminal antecedents in low-
circulation newspapers and filled forms without proper details, focusing on
"winnability."
5. Bharatiya Janata Party: Failed to submit required forms and did not provide
acceptable reasons for candidate selection.
6. Communist Party of India (Marxist): Did not submit any compliance forms,
fully non-compliant.
7. Nationalist Congress Party: Similarly failed to submit compliance forms.
8. Communist Party of India: Published criminal antecedents in low-
circulation newspapers and filled forms mechanically, justifying candidate
selection without substance.
9. Rashtriya Lok Samta Party: Gave stereotyped reasons for candidate
selection.
Penalties

The Supreme Court imposed penalties on the political parties found in contempt.
Considering this was the first election after the issuance of the Rambabu Singh
Thakur directions, the Court took a lenient view but warned parties to comply
strictly in the future. Penalties included:

● Communist Party of India (Marxist) and Nationalist Congress Party: Rs

5 lakh each for complete non-compliance.
● Other parties: Rs 1 lakh each for partial non-compliance.

The Rashtriya Lok Samta Party was found guilty of contempt but was not
penalized in this instance.

ECI's Role and Further Directions

The Court accepted that the ECI had not committed contempt as it had reported non-
compliance by political parties. However, the ECI was cautioned to act more
promptly in future cases to ensure timely judicial intervention.

Political Parties’ Candidate Selection Freedom

The Supreme Court reiterated that the directives aimed to ensure voters had complete
information to make an informed choice. Political parties retain the freedom to select
their candidates, but they must provide substantial reasons beyond "winnability" for
choosing candidates with criminal backgrounds.

Judicial Restraint and Legislative Responsibility

While the Court expressed its frustration with the lack of legislative action to address
criminalization in politics, it acknowledged the limits of judicial intervention in
legislative matters. The judgment included a strong appeal to lawmakers to
undertake necessary reforms to prevent individuals with criminal backgrounds from
becoming lawmakers.

Additional Directions
To further enhance the voter's right to information, the Court issued several new
directives:

1. Website Information: Political parties must publish criminal antecedents of

candidates prominently on their websites.
2. Mobile Application: The ECI was directed to create a mobile app to provide
voters with information about candidates' criminal backgrounds.
3. Awareness Campaigns: The ECI should conduct extensive awareness
campaigns about voters' rights to know candidates' criminal backgrounds.
4. Dedicated ECI Cell: A separate ECI cell should monitor compliance and
promptly report non-compliance to the Supreme Court.
5. Publication Timeline: Modify the previous directive to publish candidate
information within 48 hours of selection.
6. Prompt Reporting: ECI must promptly report non-compliance to the
Supreme Court.

Conclusion

This judgment marks a pivotal step towards increasing transparency and

accountability in Indian politics. By holding political parties accountable and
enhancing the voter's right to information, the Supreme Court aims to foster a cleaner
and more informed political environment. The decision underscores the judiciary's
role in upholding democratic principles and the urgent need for legislative action to
address the growing menace of criminalization in politics.

Paramvir Singh Saini v. Baljit Singh (2020)

Over the years, instances of police brutality have been observed, wherein individuals
facing accusations have been detained in a manner that blatantly violates the rights
outlined in Article 21 concerning undertrial prisoners. This period witnessed an
increase in custodial violence leading to fatalities. The significant legal precedent
addressing this issue is the 2020 Supreme Court ruling in the case of Paramvir Singh
Saini vs. Baljit Singh, which emphasizes the protection of human rights for inmates
through the obligatory installation of CCTV cameras in police stations and
interrogative agencies like The Central Bureau of Investigation, National
Investigating Agency, etc. CCTV cameras act as an unbiased witness, recording
events in and around police stations. This kind of transparency promotes
accountability and discourages the misuse of power. Since police officers have the
knowledge that their actions are being recorded, they are more likely to adhere to
the proper norms and ethical conduct. CCTV cameras contribute to the overall
security of police stations by monitoring entry and exit points, deterring criminal
activities, and aiding in the identification of potential security threats. CCTV
cameras inside and outside lock-up areas ensure proper monitoring of detainees,
preventing any abuse or mistreatment, and safeguarding the rights of individuals in
custody.

This case is in continuation of Shafi Mohammad v. State of Himachal Pradesh and

D.K. Basu vs. State of West Bengal which again are Supreme Court rulings.

Facts of the Case

In the current case, a Special Leave Petition (SLP) was lodged to assess the status of
CCTV camera installation in police stations and adherence to Section 161(3) proviso
of the CrPC, which mandates the possible recording of statements to the Police
through audio-visual electronic means. The Court included all States and Union
territories, instructing them to provide specific details on the placement of CCTV
cameras in each Police Station within their jurisdiction, along with the status of
forming the Oversight Committee.

The Supreme Court has periodically issued directives to prevent custodial violence
and restrain the misuse of powers granted to police personnel. In its 2015 judgment
in D.K Basu v. State of West Bengal, the Supreme Court directed the installation of
CCTV cameras in all prisons across the country to maintain discipline among
inmates and prevent human rights violations. Simultaneously, the Court suggested
that State Governments may contemplate installing such CCTV cameras in Police
Stations as a precautionary measure against custodial violence, although it was not
made mandatory.

In the order dated April 3, 2018, in the leading case of Shafhi Mohammad v. State
of Himachal Pradesh, the Supreme Court directed the Government to establish a
Central Oversight Body (COB) under the Ministry of Home Affairs to execute an
action plan concerning the use of videography in crime scenes during investigations.
Emphasizing the need for an Oversight Mechanism in every State, where an
Independent Committee can analyze CCTV camera footage and periodically publish
observations in the form of a report, the Court aimed to ensure effective monitoring.
The COB was tasked with identifying places, particularly Police stations, where
cameras should be set up and issuing appropriate directives to ensure the phased
implementation of videography.

Relevant Laws

Section 161 (3) of CrPC – States that a police officer may reduce any statement made
to him in the course of an examination into writing. The Court raised the issue of
whether any comments made by anyone in police custody are free of compulsion,
and whether all police stations should be equipped with CCTV cameras.

Sections 17 and 18 of the Protection of Human Rights Act, 1993 – A person in

detention who has been exposed to abuse or torture can seek reparation from the
State Human Rights Commission (SHRC). In conjunction with its given powers
under Sections 17 and 18 of the Protection of Human Rights Act 1993, the SHRC
can function in this manner.

If someone accuses a police officer or an official from one of the above-mentioned

investigating organizations, the complainant is entitled to a copy of the CCTV
footage from the location where the alleged infringement occurred. Such complaints
can be handled by SHRCs in line with the legislation. A directive was also issued to
establish more human rights courts in districts.

Issues

1. To what extent has there been advancement in the implementation of

surveillance cameras in police stations?
2. Is the state in compliance with Section 161(3) of the CrPC?

Petitioner’s Arguments

The individuals representing the petitioners, including various legal professionals

and counsel, have approached the court to seek the enforcement and application of
videography and photography in crime scene investigations.
Drawing on a prior court order dated 03.04.2018 in the case of Shafhi Mohammad
v. State of Himachal Pradesh, the petitioners refer to the court’s direction to establish
a Central Oversight Body (COB) by the Ministry of Home Affairs for the
implementation of video recording in crime scene investigations. They argue that
adherence to this directive is essential for ensuring transparency and accountability
in the criminal justice system.

Emphasizing the significance of video recording in crime scene investigations and

the oversight role of independent committees reviewing CCTV footage, the
petitioners assert that these measures are crucial for upholding justice principles and
preventing miscarriage of justice. They advocate for the COB to issue appropriate
instructions, ensuring the phased implementation of videography, with the initial
phase to be executed by a specified date.

Noting the establishment of a COB by the Ministry of Home Affairs following the
court’s directive, the petitioners argue that the compliance affidavits and action taken
reports submitted by states and union territories are insufficient and lack specific
details regarding the installation and operation of CCTV cameras in police stations.

The petitioners further argue that the formation of oversight committees, as directed
by the court, has not been adequately executed by states and union territories. They
underscore the necessity of having oversight committees at both state and district
levels to ensure proper monitoring and adherence to directives.

The installation of CCTV cameras and recording equipment in the mentioned offices
of investigative and enforcement agencies is deemed necessary by the petitioners to
ensure transparency, accountability, and protection of human rights.

They contend that CCTV surveillance will serve as a deterrent against human rights
violations during interrogations and arrests, as well as prevent potential abuse of
power by officials.

The petitioners assert that the fundamental rights guaranteed under Article 21 of the
Constitution of India, encompassing the right to life and personal liberty, necessitate
the implementation of these measures to safeguard the rights of every citizen.
They may argue that the delay in implementing such measures, despite a previous
court order, indicates a lack of action and a disregard for constitutional rights,
emphasizing the urgent need for compliance.

Arguments of the Respondents

The respondents, presumably representing the Union of India and relevant

investigative and enforcement agencies, might assert that their existing protocols and
procedures are designed to safeguard human rights during interrogations and arrests.

They could argue that implementing CCTV cameras in every office poses logistical
and financial challenges and may jeopardize the privacy and security of sensitive
investigations.

The respondents may emphasize that the previous court order did not explicitly
mandate the installation of CCTV cameras in all offices, suggesting that the current
request exceeds the original ruling’s scope.

They might contend that alternative measures, such as internal accountability

mechanisms and regular audits, are already in place to address potential human
rights violations and ensure the effective operation of these agencies.

Judgement

The Supreme Court has issued directives concerning the establishment of oversight
committees at both the State and district levels, delineating their responsibilities.
Additionally, the Court has mandated the installation of CCTV cameras in all police
stations throughout the state and union territories. These cameras should possess
night vision capabilities and capture both audio and video footage. It is the
responsibility of state legislators to ensure the installation of CCTV cameras in every
police station within their respective jurisdictions. The placement of cameras should
cover various areas, including entry and exit points, the main entrance of the police
headquarters, lockups, corridors, meeting rooms, inspector’s room, sub-inspector’s
room, areas outside the lock-up room, and the station corridor, ensuring
comprehensive coverage. Furthermore, the Court has instructed the central
government to install CCTV cameras and maintain equipment in the facilities of
organizations like the CBI, NIA, and NCB, in accordance with their judgment. The
recording system should retain data for a minimum of eighteen months. To inform
the public about the surveillance, prominent signage in English, Hindi, and the local
language should be displayed both outside and inside the police stations. The
financial departments of the state and union territories are responsible for the
appropriate allocation of resources. Additionally, the Court has directed that
incidents related to custodial deaths should be reported not only to the State Human
Rights Commission but also to a human rights organization specified in each district
of every state and union territory.

If a victim is subjected to custodial torture or death, the victim has the right to file a
complaint with the state human rights commission, which is established under
sections 17 and 18 of the Protection of Human Rights Act, 1993, as well as Human
Rights Courts, which are established under section 30, of the same act. A thorough
investigation can be carried out with the help of CCTV cameras and records. Each
SHO will be responsible for the operation and recording of CCTV cameras. The
SHO would also be in charge of ensuring that the CCTV data was not tampered with.
Any faulty CCTV must be reported to the DLOC promptly by the SHO.

Directions Given by the Supreme Court

Constitution of Oversight Committee at 2 Levels

State Level: The State Level Oversight Committee (SLOC) must consist of:

(i) The Secretary/Additional Secretary, Home Department

(ii) Secretary/ Additional Secretary, Finance Department

(iii) The Director General/Inspector General of Police; and

(iv) The Chairperson/member of the State Women’s Commission.

Duties: It shall be the responsibility of the SLOC to see that the directions of the
Court are carried out. Its other enlisted duties will be:

a) Purchase, distribution, and installation of CCTVs and its equipment;

b) Obtaining the budgetary allocation for the same;

c) Continuous monitoring of maintenance and upkeep of CCTVs and its equipment;

d) Carrying out inspections and addressing the grievances received from the DLOC;
and

e) To call for monthly reports from the DLOC and immediately address any concerns
like faulty equipment.

District Level: The District Level Oversight Committee (DLOC) should comprise
of:

i) The Divisional Commissioner/ Commissioner of Divisions/ Regional

Commissioner/

Revenue Commissioner Division of the District (by whatever name called) ii) The
District Magistrate of the District iii) A Superintendent of Police of that District; and

(iv) A mayor of a municipality within the District a Head of the Zilla Panchayat in
rural areas.

Duties: The duties of DLOC shall be:

a) Supervision, maintenance and upkeep of CCTVs and its equipment

b) Continuous monitoring of maintenance and upkeep of CCTVs and its equipment

c) To interact with the Station House Officer (hereinafter referred to as the “SHO”)
as to the functioning and maintenance of CCTVs and its equipment; and

d) To send monthly reports to the SLOC about the functioning of CCTVs and allied
equipment.

e) To review footage stored from CCTVs in the various Police Stations to check for
any human rights violation that may have occurred but are not reported.

Conclusion

The Supreme Court’s ruling in the case of Paramvir Singh Saini vs. Baljit Singh is a
significant legal precedent in addressing the issue of custodial violence and
safeguarding the rights of undertrial prisoners. The directive to install CCTV
cameras in police stations and investigative agencies aims to enhance transparency,
accountability, and the protection of human rights. By establishing oversight
committees at both state and district levels, the Court ensures effective monitoring
and maintenance of the CCTV systems. This ruling reinforces the importance of
adhering to proper norms and ethical conduct by police officers, ultimately
contributing to the overall security and integrity of the criminal justice system.

Re Exploitation Of Children In Orphanages In State Of Tamil Nadu V/S Union

Of India

Case Comment

Case No: Writ Petition (criminal) no – 102 of 2007

Court: Supreme Court of India

Corum: Hon’ble Justice Madan B. Lokur and Hon’ble Justice Deepak Gupta.

Date of Judgement: May 5, 2017

Annually, scandals at orphanages in India have revealed the dismal conditions under
which these institutions are run. Workers at these orphanage homes have been
implicated in serious criminal offenses, including systematic child sexual abuse. In
these environments, children are often subjected to sexual abuse, physical battering,
and mental ill-treatment. Cramped living conditions and regular violence as a
measure of control are indicative of the poor infrastructure prevalent in many
orphanages. Despite efforts to address these problems, privately-run homes often
refuse to be registered under the Juvenile Justice Act, 2000 of India. To bring this
grave issue to light, the Supreme Court delivered a landmark decision, mandating
the government to strengthen and enforce the laws designed to protect children.

Under Article 39 of the Indian Constitution, principles of economic and social justice
are cited. Article 39 (e) states that the health and strength of workers, men and
women, and the tender age of children should not be abused. Article 39 (f) asserts
that children should be given opportunities and facilities to develop in a healthy
manner and in conditions of freedom and dignity, and that childhood and youth
should be protected against exploitation and moral and material abandonment.
Facts of the Case

The writ petition was based on an article titled "Orphanage or Places of Sexual
Abuse" published in Hindustan newspaper by Ms. Anjali Sinha. The article exposed
the systematic child sexual abuse occurring in government and non-government
orphanages in Mahabalipuram, Tamil Nadu. The process of uncovering these abuses
involved recording phone calls that documented levels of child sexual abuse. The
article identified a government agency involved in the matter, leading to the filing
of a public interest litigation (PIL).

A.S. Choudary forwarded the article to the court, which then took up the PIL based
on the article’s contents. An order passed on February 7, 2013, highlighted that the
rights of children could only be secured through the full implementation of statutes
related to children such as The Commissions for Protection of Child Rights Act,
2005, The Right of Children to Free and Compulsory Education Act, 2009, The
Protection of Children from Sexual Offences Act, 2012, and The Juvenile Justice
(Care and Protection of Children) Act, 2000.

Subsequent court directions included:

● On March 20, 2015, the court called for a social audit under Rule 64 of the
Juvenile Justice (Care and Protection of Children) Rules, 2007.
● On April 17, 2015, the court raised the issue of a monitoring audit under the
Integrated Child Protection Scheme and the establishment of Juvenile Justice
Boards.
● On July 31, 2015, at the instance of the learned Amicus, the issue of preparing
Child Care Plans and laying down a policy for conducting social audits was
discussed.
● On August 28, 2015, the court addressed the problem of vacancies in the
National Commission for the Protection of Child Rights.
● On October 30, 2015, the format for social audits was discussed, aiming to
finalize something workable and pragmatic.

The learned Amicus emphasized three critical issues:

1. Trafficked children
2. Children on the street
 3. Children in need of protection

Issues Raised

1. Whether the recovery of children in need of care and protection should be the
first concern.
2. Whether the National Commission for Protection of Child Rights, 2005, and
the State Commission for Protection of Child Rights Act, 2005, ensure
compliance with the Protection of Children from Sexual Offences Act, 2012
(POCSO).

Arguments Advanced by the Petitioner

The petitioners argued that there was a lack of concern for the welfare of children
and an unconcern for child sexual abuse cases in many states and union territories.
They contended that children had minimal chances of developing in a healthy
manner and in conditions of freedom and dignity. Despite the guiding principles of
state policy being fundamental to the governance of the country, they were
practically irrelevant.

Arguments Advanced by the Respondent

The Solicitor General argued that the court's orders defined provisions on the rights
of children, including adequate facilities for health and education. It was further
argued that the rights of children could only be guaranteed if the supervision and
control provisions contained in the law were fully applicable to children. The
respondent emphasized the importance of training in understanding and appreciating
Juvenile Justice Laws, Model Rules, and guidelines, asserting that merely providing
copies of these documents to staff, including judicial officers and government
officials, was insufficient.

Rationale of the Supreme Court

The court pronounced that the definition of "child in need of care and protection"
under Section 2(14) of the Juvenile Justice Act should not be interpreted
exhaustively. The definition is explanatory, and the benefits envisioned for children
in need of care and protection should be extended to all children.

After hearing both sides, the court directed the governments of the Union territories
and the States to ensure the registration and legal verification of orphanage
institutions by December 31, 2017. The court noted that the Union of India was to
report on the data collected regarding the management of child institutions and
children's rights by December 5, 2018. This report was to serve as a blueprint for
future actions, and details had to be provided to the main authorities with a monthly
database of all children in need of care and protection.

The court also directed states to establish various supervisory committees as required
by the Juvenile Justice Act, 2005, and Model Rules, to regulate day-to-day
inspections of child care institutions before July 31, 2017, and prepare reports of
such inspections. The State Commission for Protection of Child Rights was
mandated to publish an annual report detailing all activities conducted. Social audits
were to be conducted by the National Commission for Protection of Child Rights
and each State Commission, recognizing their vital role in protecting children's
rights. Additionally, each Juvenile Justice Committee was requested to establish a
Secretariat for assistance.

All these directives were issued to the state and union territory governments, and the
case was disposed of by the Supreme Court. The court treated the case as a PIL and
sought to expand its scope by integrating all relevant acts related to the protection
and safety of children. Observing the government's lackadaisical approach, the court
provided comprehensive directions to both State and Union Governments, ensuring
that even the minor aspects of the case were covered to prevent any potential
disputes.

Defects of Law

The current legal language states women below the age of sixteen years, but children
between the ages of two and ten are increasingly becoming victims of sexual abuse.
The government must redefine the term "child" and impose harsher punishments for
those involved in child sexual abuse. The Supreme Court should create a separate
category for cases regarding child sexual abuse. The POCSO (Protection of Children
from Sexual Offenses Act) 2012 failed to prevent sexual assault on minors as its
penalties were not distinct from the general penalties in the Indian Penal Code, 1860.

The Supreme Court recently urged the Parliament to consider harsher punishments
for child sexual abuse. A bench headed by Justice Dipak Misra suggested that the
government define "child" in the context of rape under criminal law. Several
countries have enacted stringent laws to combat child sexual abuse and employ
chemical castration—a process using drugs to lower a person's libido without
physically removing sexual organs—as a method to punish repeat offenders.
Introducing chemical castration in India could deter individuals engaged in child
abuse crimes. Laws must be made stricter, and punishments for sexual abuse of
children must be increased to instill fear in offenders.

Inference/Conclusion

Many orphanage institutions are still not registered, necessitating the effective
implementation of the above-mentioned judgment. Orphanages must conduct
preventive awareness sessions addressing children's needs and provide proper
medical treatment for children with disabilities, mental issues, or those who have
faced sexual abuse. They should treat all children equally, irrespective of caste,
creed, gender, sex, or color, and be readily available to assist these vulnerable
children. Furthermore, the child's status must not be disclosed without the Juvenile
Justice Board's permission, with only medical staff privy to all relevant details.

Orphanages should be under CCTV surveillance to allow for supervision by main

authorities at any time. Lastly, the government must be notified of any sexual rackets
or illegal registrations occurring within these institutions.

This case underscores the urgent need for stringent measures to protect children's
rights and ensure their safety and well-being in orphanages across India. The
Supreme Court's directives aim to establish a robust framework for monitoring,
supervision, and accountability in child care institutions, thereby safeguarding the
rights of vulnerable children.
Amish Devgan v. Union of India (2020)

Case Details

Case No: Writ Petition (Criminal) No. 160 of 2020

Court: Supreme Court of India
Corum: Hon’ble Justice A.M. Khanwilkar, Hon’ble Justice Dinesh Maheshwari,
and Hon’ble Justice Sanjiv Khanna
Date of Judgment: December 7, 2020

The case of Amish Devgan v. Union of India revolves around the petitioner, Amish
Devgan, a renowned TV journalist accused of using offensive language and making
derogatory statements against Hazrat Moinuddin Chisti, a revered Muslim saint.
During a debate on the Places of Worship Act, 1991, on his show 'Aar Paar' on June
15, 2020, Devgan referred to the saint with terms such as "terrorist" and "robber,"
implying that he forced people to convert their religion. These remarks were
translated to "Terrorist and Robber Chisti came and changed the religion of masses,"
which led to widespread outrage, hurt the sentiments of the Muslim community, and
threatened national unity.

Following the broadcast, Devgan faced significant backlash on social media and
multiple FIRs were filed against him across various states for the alleged criminal
offense. On June 17, 2020, he issued a public apology, claiming that his remarks
were inadvertent and that he had no intention of causing disharmony or resentment
among any community. However, on June 20, 2020, Devgan filed a writ petition in
the Supreme Court seeking quashing of the FIRs under Section 482 of the Criminal
Procedure Code, 1973 (CrPC), which deals with the inherent powers of the High
Court. He also sought protection against threats and abuses following the broadcast
and requested the merging of all FIRs with the first FIR lodged at Rajasthan Police
Station, along with protection for his family members.

Issues Raised Before the Supreme Court

The Supreme Court framed the following issues for consideration:

 1. Whether the words stated by the petitioner are of a derogatory and offensive
nature that may lead to feelings of unrest and disharmony among the
community.
2. Whether the words degrade the dignity and pride of the nation.
3. Whether the petition should be dismissed under Article 32 of the Indian
Constitution in an insouciant manner.
4. Whether the multiple FIRs registered against the petitioner are maintainable.

Contentions Raised by the Parties

Arguments Advanced by the Appellant

1. The appellant argued that filing multiple FIRs for the same offense infringes
on his fundamental right to freedom of speech and expression, as enshrined in
Article 19 of the Indian Constitution.
2. He claimed that his remarks were not intended to create disharmony or
resentment among the Muslim community and were made due to negligence
and carelessness. Therefore, they should not be covered under Sections 153A,
295A, and 505(2) of the Indian Penal Code (IPC), 1860, and Section 66-F of
the Information Technology (IT) Act, 2000.
3. Devgan contended that his comments constituted a trifling offense without
any intention to cause serious harm or offense, thus falling under Section 95
of the IPC, 1860.
4. He cited precedents, including Arnab Ranjan Goswami vs. Union of India
(2020) and Balwant Singh & Anr vs. State of Punjab (1975), to support his
contention.

Arguments Advanced by the Respondent

1. The state governments of Rajasthan, Maharashtra, Telangana, and Uttar

Pradesh opposed the appellant's justifications.
2. They argued that Devgan had a history of making offensive remarks,
indicating that his comments were neither coincidental nor unintentional.
3. They pointed out that Devgan's apology came only after the FIRs were filed,
suggesting it was not genuine.
 4. The respondents contended that Article 19 of the Indian Constitution includes
restrictions and limitations that the petitioner ignored, thus promoting hatred
and outraging religious feelings among Hindus and Muslims.

Decision and Findings of the Supreme Court of India

The Supreme Court's judgment delved into the nature of hate speech and its
implications. The court emphasized the need for a balance between fundamental
rights and the responsibility to maintain national dignity and unity. It noted that
while freedom of speech is a fundamental right, it comes with reasonable restrictions
to prevent hate speech and maintain public order.

The court analyzed legal provisions related to hate speech in various countries,
including the UK, USA, Germany, Canada, and France. It observed that every
country balances the right to freedom of speech with limitations to prevent hate
speech and ensure public safety.

In Indian jurisprudence, the court referred to cases such as Ramji Lal Modi vs. The
State Of U.P (1957) and Maneka Gandhi vs. Union Of India (1978) to highlight the
balance between free speech and public order. The court distinguished between free
speech and hate speech, noting that free speech allows individuals to express
opinions and dissent, while hate speech involves derogatory or offensive language
intended to incite hatred against a particular community.

The court upheld the maintainability of the FIRs against Devgan, stating that
complaints under multiple FIRs should be considered claims to be addressed
simultaneously at the place of filing of the first FIR. It rejected Devgan's argument
that his remarks were a trifling offense, noting that the nature of the offense would
be determined by legal authorities.

Critical Analysis of the Judgment

The judgment highlights the complexities of distinguishing between free speech and
hate speech. While free speech is a fundamental right, it must be exercised
responsibly to avoid inciting hatred and discord. The court's analysis of international
legal frameworks and Indian jurisprudence underscores the importance of balancing
individual rights with public order.
The court's decision to uphold the FIRs against Devgan reflects the need to address
hate speech and its potential impact on national unity and public safety. However,
the judgment also raises questions about the boundaries of free speech and the extent
to which it can be restricted.

Existing Loopholes in the Prescribed Law

The existing legal framework has several loopholes concerning hate speech and the
protection of religious sentiments:

1. Equal Protection of Law: The principle of equal protection under the law
and the prohibition of discrimination based on religion are not always
effectively implemented. The law should ensure that members of one
community do not disrespect the religious figures of another community.
2. Freedom of Speech: Article 19(1) of the Constitution guarantees the freedom
of speech and expression, provided it does not defame or hurt others. The
current case illustrates a lack of synchronization between fundamental rights
and their application in real-world scenarios.
3. Hate Speech: The absence of a clear definition of hate speech in Indian law
creates ambiguity. The law should define and criminalize hate speech to
prevent incidents of derogatory and inflammatory statements.
4. Penalties: The penalties for hate speech and related offenses should be
stringent to deter individuals from engaging in such behavior.

Conclusion

The case of Amish Devgan v. Union of India underscores the importance of

distinguishing between free speech and hate speech. While free speech is a
cornerstone of democracy, it must be exercised with responsibility and respect for
others' rights and sentiments. The judgment reflects the need for a balanced approach
that upholds fundamental rights while preventing hate speech and maintaining public
order.

The legal framework must be strengthened to address the challenges of hate speech
and ensure the protection of religious sentiments. Collaborative efforts between the
legislature and judiciary are essential to uphold the values of the Indian Constitution
and allow citizens to exercise their rights responsibly.
As we conclude this commentary, it is crucial to recognize the role of the judiciary
in safeguarding fundamental rights and maintaining social harmony. The judiciary
must continue to interpret and apply the law in a manner that balances individual
freedoms with the collective interests of society. By doing so, it can contribute to a
more just and equitable society where free speech is protected, and hate speech is
effectively curtailed.

Anversinh @ Kiransinh Fatesinh v. State of Gujarat

Case Details

Court: Supreme Court of India

Criminal Appeal No.: 1919 of 2010
Appellant: Anversinh @ Kiransinh Fatesinh Zala
Respondent: State of Gujarat
Bench: N.V. Ramana, Surya Kant, Aniruddha Bose
Decided on: January 12, 2021

Facts

The complainant, Kiransinh (PW-1), returned home from work on the night of May
14, 1998, and was informed by his wife that their eldest 16-year-old daughter (the
prosecutrix) had not returned home. The prosecutrix, educated till Class VII, worked
as a maid for a few hours every noon and evening. Upon enquiry, the complainant
learned that his daughter was last seen with the appellant, Anversinh @ Kiransinh
Fatesinh Zala. It was further discovered that the appellant had taken her to his home
in Surpur. A police complaint was registered on May 16, 1998.

On May 21, 1998, both the appellant and the prosecutrix were located on a farm near
Modasa. Following a medical examination and the seizure of her clothes, the
prosecutrix was reunited with her family. The prosecutrix testified that she had been
forcibly taken by the appellant with the intention of marriage and subjected to sexual
intercourse against her will. She identified the appellant and claimed that he had
forcibly taken her to his village, where she was repeatedly raped and pressured to
marry him. However, during cross-examination, she admitted to being in love with
the appellant and having had consensual sexual intercourse with him previously. She
also admitted to spending a week at the appellant’s village, living like husband and
wife and going to work together.

The learned Additional Sessions Judge convicted the appellant under Section 376 of
the IPC, finding that the prosecutrix's testimony unequivocally established that she
had been raped by the appellant. The court also noted that the prosecutrix was 16
years, 3 months, and 6 days old at the time of the incident, making her a minor, and
thus her consent was irrelevant for the charge of kidnapping. The appellant was also
convicted under Sections 363 and 366 of the IPC for enticing and luring the minor
girl with the intention of intercourse and marriage.

The appellant appealed his conviction before the High Court. The High Court
acknowledged the love affair and frequent meetings between the parties, leading to
the appellant’s acquittal under Section 376 IPC. However, the court upheld his
conviction under Sections 363 and 366 IPC, stating that the prosecutrix did not
willingly leave her parents’ custody and did not consent to being taken for marriage.

Issues Raised

1. Whether a consensual affair can be a defense against the charge of kidnapping

a minor?

Contentions

Arguments Advanced by the Appellant

1. The appellant argued that the High Court acknowledged the consensual
relationship and love affair, leading to his acquittal under Section 376 IPC.
However, the same court held that the prosecutrix did not willingly leave her
parents’ custody, which was contradictory.
2. The appellant relied on the judgment in S. Varadarajan vs. State of Madras,
where it was held that voluntary abandonment of home by a minor girl would
not amount to kidnapping, and without active involvement, the appellant
could not be said to have ‘taken’ or ‘enticed’ the prosecutrix.

Arguments Advanced by the Respondent

 1. The state’s counsel supported the conviction, emphasizing the plain language
of the IPC and reiterating that the consent of a girl below 18 years could not
be a defense in a case of ‘kidnapping’ under Section 361 IPC.
2. The respondents argued that the prosecutrix’s love for the appellant and their
frequent meetings did not justify her abduction and that her minority made her
incapable of lawful consent.

Rationale

The Supreme Court considered the High Court's application of the law on
kidnapping under Sections 361 and 366 IPC. Section 361 defines ‘Kidnapping from
Lawful Guardianship’ and requires an act of enticing or taking, in addition to
establishing the child’s minority. Mere recovery of a missing minor from the custody
of a stranger does not automatically establish the offense of kidnapping. The court
reiterated that the consent of a minor is immaterial for the purposes of Section 361
IPC, as minors are deemed incapable of giving lawful consent under the Indian
Contract Act, 1872.

Section 366 IPC provides enhanced punishment for kidnapping with the intention to
compel marriage or force illicit intercourse. The court held that once the prosecution
shows evidence of such intent, the punishment of up to 10 years stands.

The court referred to S. Varadarajan vs. State of Madras, which held that a charge
of kidnapping could not be framed if a minor voluntarily abandoned her guardian
without inducement. However, this judgment requires establishing the minor’s
capacity to understand her actions, voluntary abandonment, and lack of inducement
by the accused. The prosecutrix in this case, being young and not highly educated,
could not fully understand the consequences of her actions.

The Supreme Court also considered the proportionality of the sentence awarded to
the appellant. Noting that no force was used in the act of kidnapping and considering
the appellant's young age and the long duration of the trial (over 22 years), the court
revisited the quantum of the sentence.

Defects of Law
 1. Interpretation of Sections 361 and 366 IPC: There is inconsistency in the
interpretation of these sections, particularly in relation to the consent of
minors and the act of enticement.
2. Conflict in Judgments: The S. Varadarajan case held that voluntary
abandonment by a minor does not amount to kidnapping without inducement.
However, in State of Haryana vs. Raja Ram, it was held that persuasion
creating willingness in the minor to be taken out of lawful guardianship
suffices for kidnapping.
3. Minor's Consent: The law does not adequately address situations where
minors, despite being capable of understanding their actions, voluntarily leave
their guardians. This grey area requires clearer legislative guidance.

Inference

The Supreme Court held that the prosecution had established the appellant’s guilt
beyond reasonable doubt for kidnapping under Sections 363 and 366 IPC. However,
considering the specific circumstances of the case, including the lack of force and
the prolonged trial, the court reduced the appellant's sentence to the period already
served.

Conclusion

The Supreme Court’s decision in Anversinh @ Kiransinh Fatesinh v. State of

Gujarat underscores the complexities involved in cases of kidnapping involving
minors, especially when there is an element of consensual relationships. The
judgment reflects a careful consideration of the legal provisions and the specific facts
of the case, balancing the need for justice with the principles of proportionality and
fairness.

The court's reduction of the sentence acknowledges the rehabilitative aspect of

criminal justice, considering the appellant’s young age at the time of the offense and
the significant passage of time since the incident. This case highlights the necessity
for clearer legislative definitions and consistent judicial interpretations to address
the nuances of kidnapping and consent involving minors.

Stricter Approach Mandated by Section 37 of the NDPS Act in Bail

Applications: Analysis of Calcutta High Court Decision
Case: Manik Das v. Narcotics Control Bureau, 2022 Cal 195, decided on 28-1-
2022

Introduction The Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985,
is a stringent law aimed at controlling and regulating operations related to narcotic
drugs and psychotropic substances in India. Section 37 of the NDPS Act imposes
stricter conditions for granting bail to individuals accused of offences under the Act,
particularly when it involves commercial quantities. This section is crucial for
understanding the judicial approach to bail applications under the NDPS Act. This
analysis delves into a significant judgment by the Calcutta High Court, where the
Division Bench of Justices Bibhas Ranjan De and Debangsu Basak addressed a bail
application under the NDPS Act, highlighting the stringent parameters set by Section
37.

Case Background In the case of Manik Das v. Narcotics Control Bureau, 2022 SCC
OnLine Cal 195, decided on January 28, 2022, the Calcutta High Court evaluated a
bail application in connection with a substantial seizure of "Ganja" (cannabis). The
Narcotics Control Bureau (NCB) had received information about a significant
quantity of Ganja being trafficked and unloaded at the residence of Susanta Dey,
with the intent to supply it to Asim Mirdha. Acting on this information, an NCB
team intercepted the vehicle near the said house, apprehending two individuals
unloading sacks of Ganja. The seized contraband weighed 215 kg, and its identity as
Ganja was confirmed through a chemical laboratory examination.

Legal Provisions Involved The bail application was scrutinized under Section 37
of the NDPS Act, which establishes more stringent conditions for granting bail in
cases involving commercial quantities of narcotic substances. This section, read
alongside Section 439 of the Criminal Procedure Code (CrPC), creates a dual-
layered threshold that must be crossed for an accused to be granted bail.

Section 37 of the NDPS Act: Key Conditions Section 37 of the NDPS Act begins
with a non-obstante clause, indicating its overriding effect over any other provisions
related to bail under the CrPC. The key conditions for granting bail under Section
37 are:

1. The prosecution must be given an opportunity to oppose the bail application.

 2. The court must be satisfied that there are reasonable grounds to believe that:
a. The accused is not guilty of the offence. b. The accused is not likely to
commit any offence while on bail.

Supreme Court Precedents The Supreme Court has, in various judgments,

emphasized the importance of adhering to the conditions set by Section 37 of the
NDPS Act. In Union of India v. Nawaz Khan (2021) 10 SCC 100, and Union of
India v. Shiv Shanker Kesari (2007) 7 SCC 798, the Court reiterated that bail could
be canceled if granted without considering the stringent conditions of Section 37.
Similarly, in Union of India v. Prateek Shukla (2021) 5 SCC 430, the Court noted
that non-application of mind to the seriousness of allegations and rival submissions
is a ground for cancellation of bail.

High Court’s Analysis and Decision The Calcutta High Court meticulously
analyzed the conditions prescribed under Section 37 of the NDPS Act. The Bench
observed that the power to grant bail under the NDPS Act is not only limited by the
provisions of Section 439 CrPC but also by the stringent conditions laid down in
Section 37. The court emphasized that the language of Section 37 is in the negative
form, explicitly restricting the grant of bail unless the conditions are fulfilled.

The Bench highlighted that the term "reasonable grounds" implies something more
than prima facie grounds. It denotes substantial probable causes for believing that
the accused is not guilty. This necessitates the presence of facts and circumstances
that justify such a belief, ensuring that the accused's innocence is not merely a
speculative assumption.

Role of Evidence and Statements In the present case, the court took into account
the voluntary statements recorded under Section 67 of the NDPS Act. These
statements, along with the substantial quantity of Ganja seized, played a crucial role
in shaping the court's decision. The Bench noted that the petitioner failed to provide
cogent and unimpeachable evidence to dissociate himself from the arrested co-
accused, especially in light of the mobile phone records suggesting a nexus and
conspiracy.

Conclusion The Calcutta High Court's decision in Manik Das v. Narcotics Control
Bureau underscores the rigorous approach mandated by Section 37 of the NDPS Act
concerning bail applications. The judgment reinforces the need for substantial and
credible evidence to satisfy the stringent conditions for bail, reflecting the Act’s
objective to curb the menace of drug trafficking effectively. By adhering to the
parameters set by the NDPS Act, the judiciary aims to ensure that the process of
granting bail does not undermine the stringent regulatory framework established to
combat drug-related offences.

In summary, the court's decision highlights the importance of careful judicial

scrutiny and the application of a higher threshold for granting bail under the NDPS
Act. This approach is essential to maintain the integrity of the legal framework
designed to control and prevent narcotic drug offences, thereby protecting society
from the adverse impacts of drug trafficking.
Rahul Gandhi's Plea to Stay Conviction in Criminal Defamation Case: A
Detailed Analysis

Introduction

Congress leader and former Member of Parliament (MP) Rahul Gandhi has recently
filed an affidavit in the Supreme Court seeking a stay on his conviction in a criminal
defamation case. The case revolves around his remark, "why all thieves share Modi
surname," made during a political rally in Karnataka’s Kolar in 2019. This statement
led to a complaint by Bharatiya Janata Party (BJP) MLA and former Gujarat minister
Purnesh Modi, who accused Gandhi of defaming all individuals with the Modi
surname. This analysis provides an in-depth look at the case, the legal arguments
presented, and the implications of the ongoing judicial proceedings.

Case: Rahul Gandhi v. Purnesh Ishwarbhai Modi & Anr. Special Leave
Petition (Criminal) No. 8644 of 2023

Background of the Case

The controversy began when Rahul Gandhi, during a political rally, questioned why
all individuals involved in significant financial scandals seemed to share the Modi
surname. This remark was perceived as a broad generalization and defamation of all
individuals named Modi. Purnesh Modi filed a complaint under Sections 499 and
500 of the Indian Penal Code, 1860, which deal with criminal defamation. The case
was heard in a local court in Surat, Gujarat, which convicted Gandhi and sentenced
him to two years in jail in March.

Following his conviction, the Chief Judicial Magistrate HH Varma suspended the
sentence, allowing Gandhi to appeal within 30 days but did not stay the conviction.
Consequently, Gandhi was disqualified as an MP from Kerala’s Wayanad
constituency the very next day, in accordance with Article 102(1)(e) of the
Constitution and Section 8 of the Representation of the People Act, 1951. Gandhi's
subsequent applications for a stay on his conviction were dismissed by the sessions
court and the Gujarat High Court, leading him to approach the Supreme Court.
Legal Provisions Involved

The crux of the legal arguments in this case lies in the interpretation of Sections 499
and 500 of the Indian Penal Code and the conditions for granting bail and staying
convictions under the Indian legal framework. Additionally, the Representation of
the People Act, 1951, and its implications for disqualification of convicted MPs play
a significant role.

Rahul Gandhi's Affidavit and Legal Arguments

In his latest affidavit, Rahul Gandhi asserts that there is no need for him to apologize
for his remark. He maintains his stance that he is not guilty of the offence and that
the conviction is unsustainable. Gandhi argues that if he had intended to apologize
and compound the offence, he would have done so much earlier. This assertion
comes in response to the complainant's accusation that Gandhi's refusal to apologize
indicates arrogance and a lack of repentance.

Gandhi's affidavit emphasizes that using the criminal process to coerce him into
apologizing constitutes an abuse of the judicial process. He contends that criminal
defamation does not involve moral turpitude and that awarding him the maximum
punishment is, by itself, an exceptional circumstance warranting a stay on his
conviction. He points out that defamation is one of 22 offences under the Indian
Penal Code that attract only simple imprisonment, highlighting that it is bailable,
non-cognizable, and compoundable, and therefore, not a grave offence.

Supreme Court Precedents and Legal Principles

Several Supreme Court decisions provide context for understanding the strict
conditions under which bail can be granted in criminal defamation cases. For
instance, in Union of India v. Nawaz Khan (2021) 10 SCC 100, the Court
emphasized adherence to the conditions set by the NDPS Act. Similarly, in Union
of India v. Shiv Shanker Kesari (2007) 7 SCC 798, the Court highlighted that bail
could be canceled if granted without considering the stringent conditions. These
precedents underscore the judiciary's cautious approach in granting bail for offences
involving significant allegations.
Challenges to the Evidence and Procedural Issues

Gandhi's affidavit raises several procedural issues regarding the evidence presented
against him. He argues that the complainant, Purnesh Modi, did not hear the speech
himself but relied on a WhatsApp screenshot of a news article. This reliance on
secondary evidence, according to Gandhi, undermines the credibility of the
complaint.

Moreover, Gandhi challenges the presence of an oral witness who was neither
mentioned in the complaint nor known to him. This witness's alleged strong ties with
a political rival party further raise questions about potential bias. Gandhi also points
out that the electronic evidence (CDs) presented against him was not properly sealed
or attached to the complaint, which violates legal standards for evidence submission.

Defamation and the Modi Surname

A significant part of Gandhi's defense rests on the argument that there is no

identifiable "Modi Samaj" or community as such. He asserts that the Modi surname
spans various castes, and the complainant himself admitted that individuals like
Nirav Modi, Lalit Modi, and Mehul Choksi do not belong to the same caste. This,
Gandhi argues, means that the group of people allegedly defamed is undefined and
amorphous, not an identifiable class.

Implications of Conviction on Parliamentary Role

Gandhi emphasizes the adverse impact of his conviction on his role as a

Parliamentarian and leader of the opposition. He argues that his duty involves
critically evaluating the conduct of the ruling establishment, and his speech should
be viewed in its entirety to understand the context and intention. Gandhi contends
that his inability to participate in the ongoing sessions of the Lok Sabha due to his
disqualification is causing him irreparable harm, while the respondent would not
suffer any significant harm if the conviction is stayed.

Conclusion
The case of Rahul Gandhi's plea to stay his conviction in the criminal defamation
case highlights the intersection of legal principles, political context, and judicial
scrutiny. Gandhi's affidavit presents a robust defense against the accusations,
emphasizing procedural lapses, the non-grave nature of the offence, and the broader
implications for his role as a Parliamentarian. The Supreme Court's decision on this
matter will have significant implications not only for Gandhi but also for the broader
interpretation of defamation laws and their application to public figures in India.

As the case progresses, it will be crucial to observe how the judiciary balances the
principles of justice, the right to free speech, and the need to uphold the integrity of
public discourse. The outcome will likely set a precedent for future cases involving
similar allegations and the interpretation of defamation laws in the context of
political statements.

Supreme Court Sentences Four Convicts to Life Imprisonment Without

Remission in 1996 Lajpat Nagar Bomb Blast Case

Case Details

1. Mohd Naushad v. State (Govt. of NCT of Delhi) | Criminal Appeal No. 1269
of 2013
2. Javed Ahmed Khan v. State (Govt. of NCT of Delhi) | Criminal Appeal No.
1270-71 of 2013
3. State (Govt. of NCT of Delhi) v. Mohd Naushad & Ors. | Special Leave
Petition (Criminal) Nos. 6447-6451 of 2013

In a landmark judgment, the Supreme Court of India on July 6, 2023, upheld the
conviction of four accused in the 1996 Lajpat Nagar bomb blast case. The apex court
sentenced them to life imprisonment without remission, thereby bringing to a close
a protracted legal battle that spanned over two decades. This analysis delves into the
court's decision, the background of the case, and the significant legal precedents that
influenced the verdict.

Case Background
The Lajpat Nagar bomb blast, which occurred on May 21, 1996, was a devastating
terrorist attack that rocked Delhi's bustling central market. The blast claimed the
lives of 13 people, injured 38 others, and caused extensive damage to property. The
Jammu and Kashmir Islamic Front (JKIF), a terrorist organization, claimed
responsibility for the attack. The investigation revealed that the conspiracy was
orchestrated by JKIF chief Bilal Ahmed Beg, with alleged involvement from
Pakistan's Inter-Services Intelligence (ISI).

Following the blast, the Delhi Police charged six suspected Kashmiri militants, along
with two other individuals, including a woman. Among the accused were notorious
mafia dons Dawood Ibrahim and Tiger Menon. The investigation culminated in a
charge sheet that detailed the planning and execution of the attack.

Legal Proceedings

In April 2010, a local court in Delhi sentenced three of the six convicted
individuals—Mohammed Naushad, Mohammed Ali Bhatt (alias Killey), and Mirza
Nissar Hussain (alias Naza)—to death, citing the severity of their involvement in the
heinous crime. Another convict, Javed Ahmed Khan (alias Chhota Javed), was
sentenced to life imprisonment. Two other convicts, Farooq Ahmed Khan and Farida
Dar, were released due to the time already served during the trial.

Delhi High Court's Ruling

In November 2012, the Delhi High Court reviewed the appeals filed by the four
convicts and a reference from the police for confirmation of the death sentences. The
High Court, comprising Justices S Ravindra Bhat and GP Mittal, criticized the police
for significant lapses in the prosecution's case. The court noted the lack of proof
connecting some of the accused to the bomb incident, the failure to conduct a Test
Identification Parade (TIP) for articles and the accused, and the omission of vital
witness statements.

The High Court subsequently acquitted Mirza Nissar Hussain and Mohammed Ali
Bhatt, who were on death row, and commuted Mohammed Naushad's death sentence
to life imprisonment. The life term awarded to Javed Ahmed Khan by the lower
court was upheld.
Supreme Court's Decision

The appeals and the State's special leave petition were pending before the Supreme
Court for over a decade. The bench of Justices BR Gavai, Vikram Nath, and Sanjay
Karol finally decided on the matter. The Supreme Court upheld the conviction of
Mohammed Naushad and Javed Ahmed Khan and restored the convictions of Mirza
Nissar Hussain and Mohammed Ali Bhatt, who had been acquitted by the Delhi High
Court. However, the apex court refused to reinstate the death sentences initially
awarded by the lower court.

The Supreme Court observed, "Even though it is the rarest of the rare case,
nonetheless considering several factors, we impose a sentence of imprisonment
without remission extending to natural life. The accused, if on bail, are directed to
immediately surrender. A5 (Mirza Nissar Hussain) and A6 (Mohammed Ali Bhatt)
are directed to surrender.”

Significance of the Judgment

The Supreme Court's judgment is significant for several reasons. Firstly, it

underscores the judiciary's commitment to delivering justice in terrorism-related
cases, even after prolonged delays. Secondly, the decision to impose life
imprisonment without remission reflects a nuanced approach to sentencing,
balancing the severity of the crime with the principles of justice and reformation.

The court's refusal to reinstate the death penalty, despite acknowledging the gravity
of the offence, highlights the evolving judicial perspective on capital punishment in
India. The judiciary has increasingly favored life imprisonment without remission
as an alternative to the death penalty, ensuring that the convicts remain incarcerated
for their natural lives without the possibility of early release.

Legal Precedents and Principles

The Supreme Court's decision was influenced by several legal precedents and
principles. The court considered the rarest of the rare doctrine, which guides the
imposition of the death penalty in India. This doctrine, established in the landmark
case of Bachan Singh v. State of Punjab (1980), mandates that the death penalty
should only be awarded in the gravest of cases where alternative punishments are
inadequate.

Additionally, the court took into account the principles of proportionality and
reformation. The principle of proportionality requires that the punishment must
correspond to the severity of the offence. The reformation principle emphasizes the
potential for rehabilitating the convict, even in cases involving serious crimes.

Conclusion

The Supreme Court's decision in the 1996 Lajpat Nagar bomb blast case brings a
sense of closure to a long and arduous legal battle. The judgment reaffirms the
judiciary's resolve to uphold justice in terrorism-related cases while balancing the
need for reformation and proportionality in sentencing. By imposing life
imprisonment without remission, the court ensures that the convicts remain
incarcerated for their natural lives, reflecting the seriousness of their crimes and the
impact on the victims and society.

As the legal community and the public reflect on this judgment, it serves as a
reminder of the importance of diligent prosecution, robust evidence, and the
judiciary's role in delivering justice, even in the face of significant challenges and
delays. The case underscores the need for continued vigilance and rigorous legal
processes to combat terrorism and uphold the rule of law in India.

Supreme Court Upholds Constitutionality of Section 10(a)(i) of the UAPA,

1967: A Detailed Analysis

Case: Arup Bhuyan v. State of Assam, (2023) 8 SCC 745

In a landmark judgment delivered on March 27, 2023, the Supreme Court of India
upheld the constitutionality of Section 10(a)(i) of the Unlawful Activities
(Prevention) Act, 1967 (UAPA). This provision criminalizes continued membership
in an association declared unlawful. The decision, delivered by a full bench
comprising Justices M.R. Shah, C.T. Ravikumar, and Sanjay Karol, marks a
significant development in the legal framework governing unlawful activities in
India. This analysis delves into the details of the judgment, its background, the legal
principles involved, and the implications of the verdict.
Background of the Case

The Supreme Court's decision stemmed from a reference made by the Union of India
and the State of Assam to a larger bench. The reference challenged the judgments in
two earlier cases: Arup Bhuyan v. Union of India, (2011) 3 SCC 377, and State of
Kerala v. Raneef, (2011) 1 SCC 784. These cases had questioned the
constitutionality of Section 10(a)(i) of the UAPA, which penalizes continued
membership in a banned organization.

In Arup Bhuyan, the Supreme Court had read down Section 3(5) of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (TADA), stating that mere membership
in a banned organization would not incriminate a person unless they resorted to
violence or incited violence. Similarly, in Raneef, the Court observed that mere
membership in a banned organization could not constitute a criminal offence without
active involvement in unlawful activities.

Key Issues Addressed by the Supreme Court

The Supreme Court addressed several crucial issues in its judgment:

1. Validity of Previous Judgments:

○ Whether the judgments in Raneef and Arup Bhuyan were correctly
decided.
○ Whether "active membership" needs to be proven beyond mere
membership in a banned organization under the UAPA.
2. Procedural Concerns:
○ Whether the constitutional validity of Section 10(a)(i) of the UAPA was
correctly adjudicated without hearing the Union of India.
○ The implications of reading down a statutory provision without
considering the legislative intent and hearing all relevant parties.
3. Comparative Constitutional Analysis:
○ The appropriateness of relying on American decisions concerning
freedom of speech while interpreting the right to freedom of association
under the Indian Constitution.
 ○ The structural differences between the Indian Constitution and the U.S.
Constitution, particularly regarding Articles 19(1)(c) and 19(4) of the
Indian Constitution.

Supreme Court’s Observations and Rulings

1. Validity of Previous Judgments:

The Court observed that the judgments in Raneef and Arup Bhuyan had not correctly
considered the legislative intent behind Section 10(a)(i) of the UAPA. In Raneef, the
Court was dealing with a bail application and did not challenge the constitutional
validity of Section 10(a)(i). Moreover, the Union of India was not a party to the case,
and the decision was made without hearing the Union's perspective. Similarly, in
Arup Bhuyan, the constitutional validity of Section 3(5) of TADA was not in
question, and the Union of India was not heard.

The Supreme Court held that reading down Section 10(a)(i) of the UAPA without
hearing the Union of India and without any challenge to its constitutional validity
was inappropriate. The Court emphasized that any provision of parliamentary
legislation should not be read down in the absence of the Union, as it could cause
significant harm to the state's interests.

2. Procedural Concerns:

The Court highlighted that the UAPA, enacted under Article 19(2) and (4) of the
Constitution, aims to provide effective prevention of certain unlawful activities. The
legislation was framed to deal with activities that threaten India's sovereignty and
integrity. The Court noted that before an association is declared unlawful, a detailed
procedure is followed, including public notifications and opportunities for the
association to present its case before a tribunal.

The Court clarified that once an association is declared unlawful, continued

membership in such an association reflects a conscious decision by the individual.
This conscious decision makes the individual liable to be penalized under Section
10(a)(i) of the UAPA. The Court stressed that this does not infringe upon the
individual's rights under Articles 19(1)(a) and 19(1)(c), as these rights are subject to
reasonable restrictions.
3. Comparative Constitutional Analysis:

The Supreme Court criticized the reliance on American decisions concerning

freedom of speech and association without considering the structural differences
between the Indian and U.S. Constitutions. The Court pointed out that while the U.S.
Constitution provides for absolute freedom of speech, the Indian Constitution
permits reasonable restrictions on these freedoms in the interest of public order,
sovereignty, and integrity.

The Court noted that in Arup Bhuyan and Raneef, the Indian judiciary had followed
U.S. Supreme Court decisions without adequately considering the differences in the
legal frameworks of the two countries. The Court emphasized that while U.S.
decisions could provide guidance, Indian courts must always consider the specific
provisions and principles of the Indian Constitution.

4. Final Verdict:

The Supreme Court upheld the constitutionality of Section 10(a)(i) of the UAPA,
stating that it is a necessary provision for the effective prevention of unlawful
activities. The Court overruled the judgments in Raneef and Arup Bhuyan to the
extent that they conflicted with this interpretation. The Court reiterated that mere
membership in a banned organization is sufficient for penal action under the UAPA,
provided the individual is aware of the organization's unlawful status and chooses to
continue their membership.

Implications of the Verdict

The Supreme Court's judgment has significant implications for the legal landscape
in India, particularly concerning the fight against terrorism and unlawful activities.
By upholding the constitutionality of Section 10(a)(i) of the UAPA, the Court has
reinforced the legislative intent to curb activities that threaten national security. The
judgment clarifies that continued membership in a banned organization is a serious
offence, reflecting a conscious alignment with the organization's unlawful
objectives.
1. Strengthening Anti-Terrorism Laws:

The judgment strengthens India's anti-terrorism laws by ensuring that individuals

cannot evade prosecution merely by claiming passive membership in banned
organizations. It reinforces the idea that continued association with unlawful entities
is inherently harmful to national security and public order.

2. Balancing Rights and Restrictions:

The verdict underscores the balance between individual rights and reasonable
restrictions. It reaffirms that while the right to freedom of speech and association is
fundamental, it is not absolute and can be curtailed in the interest of national security.
This balance is crucial in maintaining a stable and secure society.

3. Judicial Prudence in Comparative Analysis:

The judgment also highlights the importance of judicial prudence when considering
foreign legal precedents. It serves as a reminder that while foreign judgments can
offer valuable insights, Indian courts must always contextualize them within the
framework of the Indian Constitution and legal principles.

Conclusion

The Supreme Court's judgment upholding the constitutionality of Section 10(a)(i) of

the UAPA, 1967, marks a pivotal moment in India's legal history. The decision not
only reinforces the legislative intent behind the UAPA but also underscores the
importance of a balanced approach to individual rights and national security. By
addressing procedural concerns and providing clarity on the application of
comparative constitutional principles, the judgment sets a precedent for future cases
involving anti-terrorism laws and unlawful activities.

As India continues to face challenges related to national security and unlawful

activities, the Supreme Court's judgment serves as a robust legal foundation for
addressing these issues. It reflects the judiciary's commitment to upholding the rule
of law while ensuring that the rights of individuals are protected within the
framework of reasonable restrictions.
Anuradha Bhasin v. Union of India 2020

Anuradha Bhasin v. Union of India 2020

On January 10, 2020, the Supreme Court of India delivered a pivotal judgment in
Anuradha Bhasin v. Union of India, which came to be a cornerstone in the discourse
surrounding Internet freedom in India. The Court's decision acknowledged the
Internet as a fundamental right under the Indian Constitution, specifically
underlining the importance of access to the Internet as an extension of the right to
freedom of speech and expression and the right to practice any profession, trade, or
business. This ruling set forth strict guidelines that any government-imposed Internet
restrictions must be temporary, limited, lawful, necessary, and proportionate to meet
constitutional muster.

The Supreme Court’s Ruling in Anuradha Bhasin v. Union of India

The Supreme Court explicitly recognized that the freedoms of speech and
expression, along with the right to carry on any profession or business over the
Internet, are protected under Articles 19(1)(a) and 19(1)(g) of the Constitution. The
Court decreed that any restrictions on these rights must adhere to the stipulations of
Articles 19(2) and 19(6), which include conforming to the proportionality test. The
ruling emphasized that indefinite suspension of Internet services is impermissible
and noted that any suspension order under the Temporary Suspension of Telecom
Services (Public Emergency or Public Service) Rules, 2017, can only be temporary.
Furthermore, every such order must meet the principle of proportionality and is
subject to judicial review.

Aftermath of the Supreme Court's Decision

Despite the clarity provided by the Supreme Court's decision, the subsequent year
saw an unexpected rise in Internet shutdowns across India, which not only continued
but intensified, suggesting a gap between judicial directives and governmental
action. In 2020, India was responsible for over 70% of the global economic losses
due to Internet restrictions. Notable incidents post-judgment include the restrictions
in Jammu and Kashmir following the death of Syed Ali Shah Geelani, and during
the farmer protests in Haryana, which underscored the ongoing challenges in the
implementation of the Court's directives.

Governmental Compliance with the Supreme Court’s Decision

The government’s adherence to the Supreme Court's directives has been less than
satisfactory. There has been a significant reluctance to publish the orders for Internet
shutdowns, which not only erodes trust in governmental operations but also creates
a barrier to accountability as it hinders the ability of affected parties to legally
challenge these orders. This lack of transparency and the government’s failure to
provide statutory recognition to the Supreme Court’s directions exacerbates the
situation, leading to a trust deficit among the populace.

Implications of Non-Publication of Orders

The non-publication of Internet suspension orders poses serious challenges. Affected
individuals and businesses find it difficult to challenge the legality of such orders
due to their inability to access them. Moreover, when these cases do reach the courts,
the delays in producing the orders can lead to a situation where the government can
avoid accountability. This scenario not only enables potentially illegal restrictions
but also significantly diminishes public confidence in the governance system.

Lack of Awareness and Misapplication

The general lack of awareness and understanding of the Supreme Court’s decision
contributes significantly to its misapplication. This is analogous to the continued
misuse of Section 66A of the Information Technology Act, 2000, even after its
striking down by the Supreme Court. Instances like the State of Meghalaya’s
ignorance of the Anuradha Bhasin judgment highlight the urgent need for
widespread dissemination and recognition of such landmark legal decisions.

Economic, Social, and Psychological Consequences of Internet Shutdowns

The economic impact of Internet shutdowns in India has been profound, with
substantial losses incurred each year. However, the adverse effects are not limited to
the economy alone; the psychological, social, and journalistic damages caused by
these disruptions are immense. The Internet has become an essential tool for
information, entertainment, healthcare, education, livelihood, and democratic
expression. Any restrictions on Internet access hinder not just individual rights but
also the collective progress of the nation.

Conclusion: Steps Towards Compliance and Progress

To move away from the notorious label of the "Internet shutdown capital," India
needs to align more closely with the Supreme Court's guidelines. This requires
transparent governance, statutory recognition of judicial decisions, and regular
reviews of Internet suspension orders. Only through faithful compliance with these
measures can India hope to protect constitutional rights effectively and fulfill the
potential of a truly Digital India. The pathway to progress demands a firm
commitment to maintaining the uninterrupted flow of information, fostering
innovation, and nurturing democratic expression within the country.

Shilpa Mittal v. State of NCT Delhi and Ors. (2020)

The Supreme Court of India's ruling in Shilpa Mittal v. State of NCT Delhi and Ors.
addresses a critical and sensitive issue involving juvenile justice in India. This case
brings into focus the legal implications and challenges associated with categorizing
and sentencing offenses committed by juveniles. The legal discourse revolves
around the interpretation of the Juvenile Justice (Care and Protection of Children)
Act, 2015, specifically concerning the sentencing of juveniles involved in severe
offenses.
Case Background
The case stemmed from a tragic incident where a juvenile, referred to as 'X' and aged
between 16 and 18, was accused of causing a fatal car accident, leading to charges
under section 304 of the Indian Penal Code, 1860 (IPC). The incident resulted in the
death of the appellant, Shilpa Mittal's brother. Following the accident, the matter
was brought before the Children’s Court, which delivered a decision subsequently
challenged in the High Court of Delhi. The High Court ruled that the offense did not
qualify under section 2 of the Juvenile Justice Act, 2015, due to the lack of a
prescribed minimum sentence, prompting Shilpa Mittal to escalate the matter to the
Supreme Court.
Legal Framework and Definitions
Under the Juvenile Justice Act, 2015, offenses are categorized into three primary
groups: heinous, serious, and minor offenses. Heinous offenses are defined as those
for which the Indian Penal Code (IPC) or any other law prescribes a minimum
sentence of seven years or more. The controversy in this case arose because the
offense committed by juvenile 'X' did not fall neatly into these categories, as the IPC
prescribes a maximum sentence of ten years for section 304 but does not specify a
minimum sentence.
Arguments Presented
Appellant’s Argument:
The appellant's counsel, Siddharth Luthra, argued that the absence of a minimum
sentence for certain offenses creates a gap in the legislation, leading to ambiguities
and potential injustices. He contended that excluding a fourth category of offenses,
where the maximum sentence is more than seven years but lacks a minimum
sentence, leads to absurd outcomes. Luthra pushed for a judicial interpretation that
would expand the definition of heinous offenses to include such crimes, ensuring
that they are not overlooked by the juvenile justice system.
Respondent’s Argument:
On the other hand, the juvenile’s counsel, Mukul Rohatgi, argued that it is not within
the judiciary's purview to amend the law by expanding the definition of heinous
offenses. He maintained that the legislative intent was clear and that any gaps or
ambiguities should be addressed by the legislature rather than through judicial
interpretation.

Court’s Rationale and Decision

The Supreme Court's deliberation focused heavily on the interpretation of Section
2(33) of the Juvenile Justice Act, which defines heinous offenses. The Court
examined the legislative intent behind the categorization of offenses and the
implications of the word "minimum" in the statute. The justices acknowledged the
legislative oversight but also emphasized the judiciary's role in safeguarding the
rights and welfare of juveniles.
The Court concluded that it could not legislate but must interpret the existing laws
in a manner that aligns with constitutional principles and justice. It held that offenses
like the one committed by juvenile 'X' should indeed be treated with the seriousness
they warrant, given their impact on victims and society.
Legal and Social Implications
The ruling underscored the need for a more nuanced approach to juvenile justice,
one that recognizes the severity of certain crimes without automatically relegating
juvenile offenders to adult courts. The decision highlighted the challenges in
balancing the rehabilitative goals of the juvenile justice system with the need for
accountability and the protection of societal interests.
Conclusion and Recommendations
Shilpa Mittal v. State of NCT Delhi and Ors. (2020) serves as a landmark in
interpreting the Juvenile Justice Act, 2015. It calls for legislative clarity to prevent
ambiguities that complicate the legal process and affect the outcomes for young
offenders and victims alike. The case advocates for a legislative review to refine the
definitions and ensure that all offenses are adequately addressed within the juvenile
justice framework, promoting both justice and rehabilitation.

This case brings to light the complexities of juvenile justice in India and the pressing
need for coherent policies that address the full spectrum of juvenile offenses while
upholding the principles of fairness, justice, and rehabilitation.

Shivaji Chintappa Patil v. State of Maharashtra (2021) 5 SCC 626

In the landmark judgment of Shivaji Chintappa Patil v. State of Maharashtra, the
Supreme Court delved deep into the intricacies of murder, emphasizing the role of
circumstantial evidence in establishing the liability of the accused under Section 302
of the Indian Penal Code, 1860. This case comment explores the details and
implications of the judgment, illustrating the legal complexities associated with
distinguishing between homicidal and suicidal deaths in the context of criminal law.
The case arose from the tragic death of Jayshree, the wife of the appellant Shivaji
Chintappa Patil, who was found dead in their home under circumstances suggesting
she had hanged herself. The couple had been married for nine years and had two
children. The appellant, accused of murdering his wife, faced trial under Section 302
of the IPC. The prosecution charged that the appellant, driven by alcoholism,
habitually assaulted his wife, demanding she procure money from her family, which
allegedly culminated in her death.
Legal Proceedings
The local police station filed a case under Section 302 IPC based on the appellant’s
brother’s information. The medical examination suggested death by asphyxia due to
strangulation, raising suspicions of foul play rather than suicide. The trial proceeded
in the Sessions Court, which found Patil guilty. This decision was upheld by the
High Court, leading to the subsequent appeal to the Supreme Court.
Issues Raised
Primary Legal Question: Whether Shivaji Chintappa Patil should be held liable for
murder under Section 302 of the IPC in the absence of direct evidence, relying solely
on circumstantial evidence?
Applicable Laws
Indian Penal Code, 1860 - Section 302
Indian Evidence Act, 1872 - Sections 8 and 106
Code of Criminal Procedure, 1973 - Section 313
Analysis of Arguments
Defense Contentions:
The defense argued the prosecution failed to establish beyond reasonable doubt that
the death was homicidal.
Relied on judicial precedents to assert that the burden of proof did not shift to the
accused without conclusive proof from the prosecution.
Questioned the establishment of motive, noting the prosecution's failure to link the
alleged financial demands to the act of murder.
Prosecution Contentions:
Maintained that the concurrent findings of the lower courts were justifiable and
should not be disturbed.
Emphasized the established circumstantial evidence principles, arguing that the
chain of evidence conclusively pointed to the guilt of the accused.
Judgment Analysis
The Supreme Court embarked on a meticulous examination of the circumstantial
evidence presented. Key considerations included:
Nature of Death: Scrutiny of medical reports and scene investigation to determine if
the hanging could be self-inflicted or if foul play was evident.
Behavioral Evidence: Analysis of the appellant's behavior post-incident and
historical treatment of the deceased.
Section 106 of the Indian Evidence Act, 1872: Discussion on the burden of proof
when specific facts are within the accused's knowledge.
Judicial Precedents: Application of principles from landmark cases concerning
circumstantial evidence.
The court found that the evidence on record did not satisfactorily exclude the
hypothesis of suicide or accidental death. The lack of defensive wounds or signs of
struggle played a crucial role in challenging the prosecution's claim of homicidal
hanging.

Conclusion
The Supreme Court, in Shivaji Chintappa Patil v. State of Maharashtra, overturned
the convictions from the lower courts, underscoring the importance of a meticulously
constructed chain of circumstantial evidence to support a conviction in homicide
cases. The judgment reaffirms the principle that in criminal law, the benefit of doubt
must go to the accused, especially in cases hinging on the interpretation of indirect
evidence. This case sets a significant precedent in the evaluation of circumstantial
evidence in homicide cases, emphasizing the judiciary's role in ensuring that justice
is served through careful and fair scrutiny of all available evidence.
Sudha Singh v. State of UP & Anr, SC
Bench: Former CJI SA Bobde, Justice AS Bopanna, and Justice V.
Ramasubramanian
In the landmark judgment of Sudha Singh v. State of UP & Anr., the Supreme Court
of India overturned the Allahabad High Court's decision to grant bail to an individual
implicated under the Uttar Pradesh Gangster and Anti-Social Activities (Prevention)
Act, 1986. This case is particularly notable due to its emphasis on the significant
dangers posed by releasing high-profile criminals on bail and the implications this
has for public safety and witness protection.
Background and Facts
The case involved an accused, Sudha Singh, who had an extensive criminal
background including allegations of being a contract killer and sniper involved in
the murder of Rajnarain Singh. The accusations against him included murder,
attempted murder, and criminal conspiracy spanning over fifteen previous cases. The
High Court of Allahabad had granted him bail, which was challenged by the
deceased's spouse on several grounds, including the accused's history and the
potential threat to witnesses.
Legal Framework
Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Act, 1986 - Section
3(1): This provision aims to curb organized crime by imposing stringent conditions
on the activities of gangsters.
Issues at Hand
Assessment of Bail Application: The Supreme Court was tasked with evaluating
whether the Allahabad High Court had erred in granting bail to a high-risk criminal
with a significant potential to tamper with witnesses and disrupt public order.
Contentions Raised by the Appellant
The widow of the deceased, acting as the appellant, argued that the High Court failed
to consider the accused's extensive criminal background and the potential risk he
posed to witnesses. She highlighted instances during the trial where the accused had
attempted to manipulate proceedings and intimidate witnesses. The appellant
compared this case to the notorious Vikas Dubey incident, where a criminal with a
similar profile had previously been granted bail and subsequently involved in the
murder of police officers.
Contentions Raised by the Prosecution
The prosecution argued that the accused led a gang involved in serious crimes that
instilled significant fear in the community, effectively preventing people from
opposing his activities, including testifying against him in legal proceedings. They
emphasized that the accused's behavior during the trial underscored his potential to
disrupt justice by threatening witnesses and manipulating legal processes.
Supreme Court's Rationale
The Supreme Court's decision was informed by several precedents and legal
principles emphasizing the necessity of considering the broader impact of granting
bail to individuals involved in organized crime. The Court referenced the need for
courts to exercise caution and consider the potential effects on witnesses and public
order. It highlighted previous rulings where it was established that bail should not
be granted merely based on the factual matrix presented by the defense but should
also take into account the accused's criminal history and behavior during the trial.
The Court pointed out that the accused had a documented history of manipulating
court proceedings and intimidating witnesses, which was evident from the need for
witness protection during the trial. The judgment stressed that releasing such an
individual could not only hinder the trial process but also pose a significant risk to
public safety and order.
Defects in the Law and Suggestions
The Supreme Court criticized the Allahabad High Court for its failure to adequately
consider the full spectrum of risks associated with granting bail to the accused. The
judgment suggested that there is a crucial need for judicial bodies to not only assess
the direct implications of releasing an accused on bail but also the broader societal
risks, especially in cases involving organized crime.
Conclusion
The Supreme Court's reversal of the Allahabad High Court's decision in Sudha Singh
v. State of UP & Anr. is a pivotal judgment that reinforces the principle that bail
decisions must be made with careful consideration of the accused's background and
potential risks to public safety and justice. By emphasizing the need for a cautious
approach in granting bail to individuals with a history of serious crimes, the Supreme
Court has underscored the judiciary's role in upholding public order and protecting
the integrity of the judicial process. This case serves as a crucial reminder of the
dangers of underestimating the impact of organized crime on society and the justice
system.

Selvi vs. State of Karnataka AIR 2010 SC 1974, (2010) 7 SCC 263
The case under review is a pivotal decision by the Supreme Court of India that
addressed the constitutional validity of neuroscientific investigative techniques like
narcoanalysis, Brain Electrical Activation Profile (BEAP), and polygraph tests
within the criminal justice system. This judgment is seminal in its exploration of the
intersection between these modern investigative techniques and fundamental
constitutional rights such as the right against self-incrimination under Article 20(3)
and the right to life and personal liberty under Article 21.
Nature of Case: Criminal Law - Constitutionality of investigative techniques
Background
The Supreme Court was approached following a special leave petition concerning
the involuntary administration of neuroscientific techniques to gather evidence
against accused, suspects, and witnesses in criminal investigations. These techniques
included the polygraph test, which measures physiological responses to assess
deception; narcoanalysis, involving the administration of sodium pentothal to induce
a hypnotic state; and BEAP, which detects brain activity in response to stimuli to
check recognition of known facts by the suspect.
Legal Framework
Article 20(3) of the Indian Constitution: Protects against self-incrimination, ensuring
that no individual accused of any offense shall be compelled to be a witness against
themselves.
Article 21 of the Indian Constitution: Guarantees the right to life and personal
liberty, extending to a fair trial and due process.
Issues Raised
Does the involuntary administration of neuroscientific techniques infringe upon the
constitutional right against self-incrimination as enumerated in Article 20(3)?
Is the involuntary use of these techniques a reasonable restriction on personal liberty
under Article 21?
Arguments Presented
Petitioners:
Argued that these techniques constitute testimonial compulsion, thus violating
Article 20(3).
Highlighted the right to mental privacy and autonomy as integral aspects of personal
liberty under Article 21.
Contended that the techniques lack scientific reliability and thus should not form the
basis for admissible evidence.
Emphasized the potential for cruel, inhuman, or degrading treatment with the forced
use of these techniques.
Respondents:
Defended the use of such tests as crucial for extracting vital information which could
aid in preventing crime and securing evidence.
Argued that these tests do not cause bodily harm and the information obtained is
used purely for investigative purposes.
Analysis of the Judgment
The Supreme Court undertook a comprehensive examination of the use of
neuroscientific techniques in the criminal justice context. The judgment delved into
international jurisprudence and scientific studies addressing the efficacy and ethical
implications of such techniques.
Right Against Self-Incrimination:
The Court held that involuntary administration of these tests amounts to testimonial
compulsion, thereby infringing on Article 20(3). It emphasized that the protection
conferred by this article is pertinent not only within the courtroom but also during
the stages of criminal investigation.
Right to Personal Liberty:
The Court recognized that substantive due process under Article 21 necessitates that
any restraint on personal liberty must not only be legally valid and procedurally fair
but also just, fair, and reasonable in substance. By compelling an individual to
undergo these tests, their fundamental right to privacy, dignity, and mental autonomy
is compromised.
Interrelationship of Rights:
The judgment explored the interplay between the right against self-incrimination and
the right to a fair trial, noting that both rights are designed to ensure the reliability of
testimonial evidence while safeguarding the dignity and integrity of the individual
involved.

Decision
The Court concluded that the results derived from involuntary administration of
neuroscientific techniques qualify as testimonial responses, thus invoking the
protection under Article 20(3). Furthermore, it asserted that such practices infringe
upon the sanctity of mental privacy and autonomy upheld by Article 21.
Conclusion
The Supreme Court's ruling mandates that no neuroscientific tests can be conducted
without the explicit consent of the individual, obtained in a legally prescribed
manner. This landmark judgment not only protects fundamental rights but also sets
a precedent on the use of modern scientific techniques in law enforcement and
judicial processes. It underscores the necessity of balancing technological
advancements with constitutional mandates and human rights, ensuring that the
pursuit of justice does not override the basic dignities afforded to every individual
under the law.

Supreme Court Reaffirms CJI as 'Master of Roster': Analysis of Shanti

Bhushan's Petition Dismissal

Introduction

On July 6, 2018, the Supreme Court of India reiterated the Chief Justice of India
(CJI)'s role as the 'Master of the Roster,' dismissing a petition filed by Senior
Advocate Shanti Bhushan. This petition sought to regulate the CJI's powers in
constituting benches and allocating cases. This analysis provides an in-depth look at
the Court's decision, the arguments presented, and the broader implications of this
ruling.
Background

Shanti Bhushan's petition challenged the concentration of absolute powers in the

hands of the CJI concerning the determination of the roster. The petition argued that
such concentration was unconstitutional and sought a declaration that the roster
should be decided not by the CJI alone but by a collegium of five senior judges.
However, the Supreme Court bench comprising Justice A.K. Sikri and Justice Ashok
Bhushan rejected this contention, reaffirming the CJI's exclusive authority.

Case: Shanti Bhushan vs Supreme Court Of India Through Its Registrar, 2018
(Master of roster case)

Arguments Presented

1. Petitioner's Contentions:

Shanti Bhushan contended that the unbridled power vested in the CJI to allocate
cases was against democratic principles and could lead to potential misuse. He cited
several instances where this absolute power was allegedly abused, including the
listing of petitions related to high-profile cases such as the investigation into the
medical college bribery case, the appointment of the CBI Special Director, and Jay
Amit Shah's defamation case against 'The Wire.'

Bhushan argued that the Supreme Court Rules, 2013, and the Handbook on Practice
and Procedure should guide the listing of matters, subject to the clarification that the
term 'Chief Justice of India' should be interpreted to mean a collegium of the five
senior-most judges. He emphasized that the Constitution's silence on the CJI's role
as the 'Master of the Roster' indicated the need for a more collective approach.

2. Respondent's Defense:

The defense, represented by the Attorney General (AG) K.K. Venugopal, supported
the exclusive power of the CJI in determining the roster and allocating cases. The
AG argued that this power was essential for the efficient functioning of the Court
and that involving multiple judges in this process would lead to practical difficulties
and internal conflicts.
The AG also highlighted the historical context and the precedents that established
the CJI's role as the 'Master of the Roster,' citing various judgments that affirmed
this practice as necessary for maintaining discipline and decorum within the
judiciary.

Supreme Court’s Observations and Ruling

1. Constitutionality of CJI’s Role:

The Supreme Court observed that although the Constitution does not explicitly
define the CJI's role as the 'Master of the Roster,' it is a well-established practice
rooted in the need to maintain discipline and decorum in the Court. Justice Sikri
noted that conferring this authority on the CJI ensures a streamlined and efficient
judicial process.

The Court also referenced the recent judgment in Asok Pande's case, where it was
declared that the CJI is an institution in himself. This judgment asserted that the
reference to the 'CJI' could not be deemed to mean the collegium, thereby reinforcing
the CJI's exclusive authority in this matter.

2. Practical Considerations:

Justice Sikri highlighted the practical difficulties that would arise if the petitioner's
plea were accepted. He noted that requiring a collegium of five senior judges to
decide the roster would complicate the Court's daily functioning and lead to
inefficiencies. The current system, where the CJI allocates cases, ensures a more
organized and efficient judicial process.

3. Arbitrariness and Allegations:

Shanti Bhushan's petition raised concerns about the alleged misuse of the CJI's
powers, citing specific cases where the allocation of sensitive matters appeared
arbitrary. The Court acknowledged these concerns but emphasized that the solution
lay in maintaining the existing system with checks and balances rather than
overhauling it entirely.

Justice Sikri noted that the acceptance of the petitioner's plea would undermine the
well-established judicial practice and could lead to internal strife within the
judiciary. He stressed that the current system of the CJI as the 'Master of the Roster'
was based on long-standing practice and judicial precedents.

4. Comparison with International Practices:

The petitioner's counsel, Dushyant Dave, and Kapil Sibal, presented arguments
comparing the Indian judicial system with international practices. They highlighted
that in many international courts, the allocation of cases is more democratic and
involves multiple judges.

However, Justice Sikri and Justice Bhushan noted the structural differences between
the Indian judiciary and other international courts. They emphasized that the Indian
judicial system has its unique requirements and challenges, and practices from other
jurisdictions cannot be directly applied without considering these differences.

5. Importance of Judicial Discipline:

The Supreme Court underscored the importance of judicial discipline and the need
to maintain a hierarchical structure within the judiciary. The role of the CJI as the
'Master of the Roster' ensures that the allocation of cases is carried out efficiently
and consistently, maintaining the integrity of the judicial process.

Conclusion

The Supreme Court's decision to dismiss Shanti Bhushan's petition and reaffirm the
CJI's role as the 'Master of the Roster' underscores the importance of maintaining
established judicial practices. While acknowledging the petitioner's concerns about
potential misuse of power, the Court emphasized the practical necessity and
historical context of the CJI's exclusive authority in allocating cases.

This ruling reinforces the principle that the judiciary must operate within a
framework that ensures discipline, efficiency, and consistency. By upholding the
CJI's role, the Supreme Court has reaffirmed its commitment to these principles,
ensuring the smooth functioning of India's highest judicial institution.

Rape & Murder - Speedy Justice: Challenges Before Judiciary & Society
Case: Mohd. Akhtar v. State of Jammu & Kashmir, 2018 SC 494
Rape is the most heinous crime, not only against the victim but also against society
at large. It causes both psychological and physical harm to the victim, leaving
indelible marks on her and shaking the very core of her life (Deepak Gulati v. State
of Haryana; 2013 (7) SCC 675). Rape is a violent violation of the private person of
a woman—an outrage by all means (State of MP v. Munna Choubey; 2005 (2) SCC
710).

The Supreme Court of India has reiterated time and again that "rape is a crime
against the basic human rights of a woman and is violative of the most cherished
fundamental right in the Constitution of India, i.e., the right to life and personal
liberty contained in Article 21." It is unfortunate that society is witnessing incidents
of rape, gang rape, and rape and murder crossing all bounds of brutality. The
frequency of such incidents prevents society from getting over the shock of one
incident before another occurs.

Data retrieved from the official website of the Government of India (data.gov.in)
shows an alarming number of rape cases reported each year. In the last 15 years,
3,41,400 (three lakh forty-one thousand and four hundred) rape cases have been
reported. The conviction rate each year, however, is minimal, which should be a
matter of serious concern for a civilized society committed to equal treatment of its
women. In 2014, there were only 6,636 convictions out of 36,735 reported cases of
rape. Similarly, in 2015, there were 7,135 convictions against 35,651 reported cases,
and in 2016, there were 6,289 convictions against 38,947 reported cases. These
figures may not be exhaustive and only refer to the reported cases, while unreported
cases each year may be of the same number or more.

It has become routine to find mention of rape incidents daily in news reports. In 2019
alone, several horrifying rape cases were reported, such as:

● a 16-year-old girl gang-raped for 5 days in Andhra Pradesh

● a 19-year-old girl from Bihar gang-raped by 6 men in front of her father
● an 11-year-old girl raped and murdered in Unnao with her body found in an
orchard
● a 3-year-old girl allegedly raped by her 11-year-old neighbor in Dehradun
● a 9-month-old girl raped in Telangana
● a 3-year-old girl raped in Bandipora, J&K during Ramzan
 ● a married woman gang-raped in Bikaner while collecting firewood
● a woman repeatedly gang-raped in Ludhiana after abduction and looting
● a 16-year-old girl raped at gunpoint in UP's Shamli district
● a 5-year-old girl raped and murdered by her neighbor during a puja.

The most recent incident of brutal rape and murder was the Hyderabad case, where
a young female doctor was gang-raped and murdered, shaking the nation's
conscience and leading to mass protests.

The rise in crime against women and rape cases in India is alarming. We must
seriously consider what we as a nation and civic society should do to ensure that
women and girls can live freely and without fear. As a society, we have failed to
handle this problem, and we are searching for a solution within ourselves. While
there are several facets to this problem, we will focus on the legal aspects and
possible solutions to improve society for women.

When considering the law, questions arise about whether existing laws are sufficient
to address the menace of rape, whether the legal framework offers enough
deterrence, and whether educating society about legal protections for women can
help.

One major reason for the lack of deterrence and the increase in rape incidents is the
judicial system's lengthy process in punishing perpetrators. This delay has become
routine in all rape cases, including those widely reported and debated. The delay is
attributable to all wings of the justice delivery system:

1. Police – Investigating Agency

2. Courts – Judicial Process
3. Law Making Body (Legislators)

1. Police - Investigating Agency

Failure begins when a person rapes a woman or girl. The second failure occurs when
the victim or her family decides to lodge a complaint. Section 154 of the Code of
Criminal Procedure mandates that a police officer must immediately record the
complaint and register the FIR, take the victim for a medical examination, and record
her statement under 164 CrPC at the earliest, irrespective of jurisdiction. However,
it is often heard that police refuse or avoid registering the FIR on various pretexts,
as in the Hyderabad case. This negative approach further traumatizes the victim, who
faces non-cooperation instead of protection. A major reform is needed to make the
investigating agency victim-friendly, offering a supportive environment and
ensuring perpetrators are punished.

In rape cases, witnesses are usually few, so a quick police response—from

registering the FIR to catching the accused and completing the investigation
scientifically—is crucial. The Supreme Court, in State of Karnataka v. Shivanna @
Tarkari Shivanna (2014 (8) SCC 913), noted the disturbing recurrence of rape and
gang rape and issued guidelines for fast-track investigation.

Fair and effective investigation in a fast-track mode with media reporting at

appropriate stages can significantly contribute to speedy justice, followed by an
expeditious judicial process.

2. Role of Courts

Delay in the justice delivery system is a well-known problem in India. Speedy trial
is essential for the fundamental right to life and liberty (Article 21 of the
Constitution). Supreme Court cases such as Kartar Singh v. State of Punjab,
Hussainara Khatoon (I) v. Home Secretary, State of Bihar, A. R. Antulay, and P.
Ramachandra Rao have emphasized the need for a speedy trial. The Supreme Court
has directed day-to-day trials in cases like the 2G Scam, PIL against Honour Killing,
and West Bengal Kangaroo Court, among others.

However, the mandate of section 309 CrPC, which requires day-to-day trials, is often
ignored by trial courts. Compliance with this legislative mandate can significantly
reduce trial duration. Conscious effort from lawyers and courts to follow section 309
CrPC can achieve the goal of concluding criminal trials quickly.

The reality is that many rape victims do not report incidents, and delays in justice
undermine deterrence. Even high-profile cases like the Pune BPO employee gang
rape, Shopian Rape and Murder Case, Shakti Mill gang rape case, Kamduni Gang
rape case, Bilkis Bano case, and Nirbhaya's case faced prolonged judicial processes.
For instance, the Nirbhaya case took seven years for the final verdict and is still
pending due to procedural delays. The Priyadarshani Mattoo case took 14 years for
a final verdict.

In these cases, the delay in concluding trials and appeals has a direct impact on
societal confidence and the theory of deterrence. The Supreme Court has recognized
the need for effective and timely administration of justice, emphasizing the adverse
effects of prolonged litigation.

3. Legislative Reforms

Enacting comprehensive legislation for crimes against women can address

prolonged trials and appeals. Similar to the Prevention of Corruption Act, Negotiable
Instruments Act, SC and ST (Prevention of Atrocities) Act, and others, a special
legislation for crime against women, with designated courts and public prosecutors,
can ensure timely trials and appeals. The Supreme Court and High Courts should
designate benches to handle appeals in rape cases regularly.

Sensitization of Stakeholders

Stakeholders in the justice delivery system need sensitization to ensure the

implementation of legislative mandates. Awareness programs and advertisements
about legal protections and penal provisions can help. Utilizing funds like the
NIRBHAYA FUND for awareness programs and public education can create a
supportive environment for victims and deter potential offenders.

Reducing Juvenile Age for Rape Offences

The involvement of juveniles in rape cases necessitates reducing the age for treating
offenders as juveniles. Studies show that children understand privacy and sexuality
from a young age. Courts should have discretion in applying the defense of
innocence based on the nature of the crime.

Supreme Court Transfers Kathua Rape-Murder Case Trial to Pathankot

Court; In-Camera Proceedings to Take Place on Day-to-Day Basis

Supreme Court: Taking note of the seriousness of the issue related to the abduction,
rape, and murder of an eight-year-old girl in Kathua District of Jammu & Kashmir
in January, the Supreme Court bench comprising Chief Justice Dipak Misra, Justice
Dr. D.Y. Chandrachud, and Justice Indu Malhotra transferred the trial from the
District & Sessions Judge, Kathua to the District & Sessions Judge, Pathankot, in
the State of Punjab.

Background and Arguments

Senior Advocate Indira Jaising, representing the victim's family, argued before the
Court that unwarranted situations had occurred in and outside the Kathua Bar
Association, involving various groups, making a fair trial impossible in Kathua.
Emphasizing the sacrosanct principle of a fair trial under Article 21 of the
Constitution of India, which must be fair to both the accused and the victims, the
Court issued the following directions for the transfer:

Directions Issued by the Supreme Court

1. Trial Assignment:

The learned District & Sessions Judge, Pathankot shall personally take up the
trial and not assign it to any Additional Sessions Judge.

2. Fast-Tracking the Trial:

The learned District & Sessions Judge, Pathankot shall fast-track the trial and
conduct it on a day-to-day basis to avoid any delays.

3. Examination of Witnesses:

The examination-in-chief and cross-examination of witnesses shall occur

continuously without deferral for any reason.

4. In-Camera Trial:

The trial shall be held in-camera to ensure the protection of witnesses and the
safety of the accused persons.

5. Exclusive Jurisdiction:

As the Supreme Court is monitoring the matter, no other court shall entertain
any petitions related to this case.
 6. Application of Ranbir Penal Code:

The transferee court shall proceed under the Ranbir Penal Code, applicable to
the State of Jammu & Kashmir.

7. Translation of Statements:

Witness statements recorded in Urdu shall be translated to English to facilitate

the trial process for the transferee court.

8. Provision of Interpreters:

The State of Jammu & Kashmir shall provide the requisite number of
interpreters as directed by the District & Sessions Judge, Pathankot to ensure
accurate recording and translation of witness depositions.

9. Transportation and Facilities:

The State of Jammu & Kashmir shall ensure the transportation of witnesses to
Pathankot and provide necessary facilities, including food, to prevent any
inconvenience.

10.Fair Treatment of Accused:

The accused persons shall receive similar treatment, ensuring they do not feel
presumed guilty, adhering to the principle of innocence until proven guilty.

11.Appointment of Public Prosecutor:

The State of Jammu & Kashmir has the liberty to appoint the Public
Prosecutor for the prosecution of the case.

12.Juvenile Care:

The juvenile accused shall be dealt with according to the law, receiving
special care and protection as mandated.

Emphasis on Fair Trial

The Court emphasized the concept of a fair trial, stating: "In the instant case, direct
victims are the family members of the deceased, although ultimately the collective
society is the victim of such crime. A fair trial commands a free atmosphere where
the victims, the accused, and the witnesses feel safe. They must not suffer from any
kind of phobia while attending the court. Fear and fair trial are contradictory terms
and cannot coexist."

Continued Protection for Victim’s Family & Lawyers

The Court reiterated that the protection granted to the victim’s family and their
lawyers via the order dated April 16, 2018, shall continue until the trial concludes.

This decision was made in the case of Mohd. Akhtar v. State of Jammu &
Kashmir, 2018 SC 494, with the order issued on May 7, 2018.

In conclusion, a concerted effort is needed to address the challenges of rape and

murder cases in the judiciary and society. Legislative reforms, judicial efficiency,
stakeholder sensitization, and public awareness can collectively create a safer
environment for women and ensure speedy justice.