Case BriefsHigh Courts

Karnataka High Court: Krishna S. Dixit J. disposed off the petition and remarked “there is & shall be no cause of action against the foster parents in civil or criminal law concerning the alleged kidnapping of the child.”

The facts of the case involve rival claims for the custody of a toddler between a genetic mother and a foster mother; this child is christened by the genetic parents as “Master Mohammed Arhaan” and later named by the foster mother as “Adwik”.

Counsel for the foster mother submitted that she having fostered the child all these months abundant with love, affection & care and the genetic mother already has two children whereas the foster mother has none and hence a child well fostered for long cannot be parted away to the genetic mother without causing enormous violence to the foster mother. It was further submitted that in matters of custody, interest of the child is paramount and therefore the claims founded on genealogy has no merit.

Counsel for the genetic mother submitted that between a genetic mother and a foster one, the claim of the latter should be given preference as well as the agony which the genetic parents of the child have undergone since a year or so also highlights the difficulties of a lactating mother from whom the suckling infant is kept away; thus he seeks dismissal of the opposite claim.

International Convention on the Rights of the Child, 1989; Article 3 (1) of this Convention provides:

“…in all actions concerning children, whether undertaken by public or private social welfare institutions, court of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration . . .”

Similarly, Article 7(1) of the Convention says:

“The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents”. Article 8 (1) & (2) of the Convention provide for the State Parties to respect the right of child inter alia to preserve its identity, ‘name and family relations as recognized by law’. It also provides that where a child is illegally deprived of some or all of the elements of its identity, State Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily its identity.”

Article 8 (1) & (2) of the Convention provide for the State Parties to respect the right of child inter alia to preserve its identity, ‘name and family relations as recognized by law’. It also provides that where a child is illegally deprived of some or all of the elements of its identity, State Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily its identity.

Article 25 (2) of the Universal Declaration of Human Rights provides:

“Motherhood and childhood are entitled to special care and assistance…”

Article 24(1) of the International Covenant on Civil and Political Rights (ICCPR, 1966) recognizes right of the child to the measures of protection as are required by its status as a minor and the correlative duty resting on the shoulders of its family, society and the State. In October 1979 a Joint WHO/UNICEF Meeting on Infant & Young Child Feeding adopted the following statement: “Breastfeeding is an integral part of the reproductive process, the natural and ideal way of feeding the infant and unique biological and emotional basis for child development. … It is therefore a responsibility of society to promote breastfeeding and to protect pregnant and lactating mothers to many influences that would disrupt it”.

Further, Section 3(ix) of the Juvenile Justice (Care and Protection of Children) Act 2015 which enacts inter alia the above principle of paramount interest of the child reads as under:

“All decisions regarding the child shall be based on the primary consideration, that they are in the best interest of the child and to help the child to develop full potential.”

Section 2(9) of the said Act defines the term ‘the best interest of the child’ to mean – “…The basis for any decision taken regarding the child, to ensure fulfillment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development.”

The Court thus observed that breastfeeding needs to be recognized as an inalienable right of lactating mother; similarly, the right of the suckling infant for being breastfed too, has to be assimilated with mother’s right; arguably, it is a case of concurrent rights; this important attribute of motherhood, is protected under the umbrella of Fundamental Rights guaranteed under Article 21 of the Constitution of India.

On an analogy being drawn between Yashoda Maa and Devaki Maa the Court observed that unsubstantiated episodes from some history or mythology do not much guide the decision making process; ordinarily, scriptures cannot be cited as precedents or as instruments having force of law, notwithstanding the light they throw when the path we tread is shrouded in darkness; in matters like this, scriptural texts are not treated as edicts of law, unless they are legislated expressly or by necessary implication or otherwise recognized.

The Court on the argument of the foster mother  that she does not have any children whereas the genetic mother has already two at home and therefore, the custody of this child should be allowed to continue with his client remarked that its ludicrous and children are not chattel for being apportioned between their genetic mother and a stranger, on the basis of their numerical abundance; the principle of distributive justice which intends to bridge the gap between “haves and have nots” is not invocable, at least in this case

The Court remarked that having being convinced of the legitimacy and priority of the claim of the foster mother it was held that the foster mother “gracefully delivered the custody of the child to its genetic parents; the genetic mother too, with equal grace, states that the foster mother may see the child whenever her heart so desires; such kind gestures coming from two women hailing from two different religious backgrounds, are marked by their rarity, nowadays; thus, this legal battle for the custody of the pretty child is drawn to a close with a happy note, once for all.”[Husna Bano v. State of Karnataka, WP No. 16729 of 2021, decided on 24-09-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For petitioner: Mr. Sirajuddin Ahmed

For respondents: Mr. Vinod Kumar and Mr. S. Subramanya

Case BriefsHigh Courts

Rajasthan High Court: Pushpendra Singh Bhati J. disposed of the instant petition with a direction to the petitioners to appear before the Station House Officer, Police Station, Feench, Luni, District Jodhpur alongwith appropriate representation regarding their grievance. 

Facts

The facts of the present case are that petitioner is in live-in relationship with petitioner even when she was married with one. The petitioner 1 alleged in the petition that due to continuous harassment and violence, resulting out of her giving birth to a girl child, she had to make a choice of entering into a live-in relationship to live life with liberty and dignity. The present petition was filed to seek protection, as right to life is a fundamental right enshrined under Article 21 of the Constitution of India, and protection of right to life is imbibed in the same, and thus, such fundamental right cannot be done away with, except by due process of law.

Issues

The issues before this Court for consideration are:

(i) Whether the State ought to intervene in the personal relationships of adult citizens?

(ii) As to what would prevail, in case there is a conflict between law and morality; and

(iii) Whether the State, having a duty of protecting its citizens, is having any kind of restrictions, reservations or exception?

Observations

The Court relied on judgment Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 wherein it was observed that surrender of one’s autonomy to another must be willful, and their intimacy and privacy is a matter of their choice.

“64. The right to privacy enables an individual to exercise his or her autonomy, away from the glare of societal expectations. The realisation of the human personality is dependent on the autonomy of an individual. In a liberal democracy, recognition of the individual as an autonomous person is an acknowledgment of the State’s respect for the capacity of the individual to make independent choices.”

The Court relied on judgment in Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368 wherein it was observed:

“23. . . . . .The High Court has lost sight of the fact that she is a major, capable of taking her own decisions and is entitled to the right recognised by the Constitution to lead her life exactly as she pleases. Intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the state. Courts as upholders of constitutional freedoms must safeguard these freedoms. The cohesion and stability of our society depend on our syncretic culture.”

The Court relied on judgment S.S. Ahluwalia v. Union of India, (2001) 4 SCC 452  wherein it was observed that “it is the duty of the State to create a climate where members of the society belonging to different faiths, caste and creed live together and, therefore, the State has a duty to protect their life, liberty, dignity and worth of an individual which should not be jeopardized or endangered.”

 The Court thus observed that it is well- settled that it is not in the Court’s domain to intrude upon an individual’s privacy. Any scrutiny or remark upon the so-called morality of an individual’s relationship and blanket statements of condemnation especially in matters where it is not called into question, to begin with, would simply bolster an intrusion upon one’s right to choice and condone acts of unwarranted moral policing by the society at large.

It was also observed that the sanctity and supremacy of law must be protected at all costs. Even the due process of law through which the fundamental rights of any person are taken away must conform with the principles of justice and fair play and has to be reasonably administered according to the circumstances of the case i.e. there must be a proportionality between the illegality of the act and the right taken away through the due process of law.

The Court held “the present petition is disposed of, with a direction to the petitioners to appear before the Station House Officer, Police Station, Feench, Luni, District Jodhpur alongwith appropriate representation regarding their grievance. The Station House Officer, Police Station, Feench, Luni, District Jodhpur shall in turn hear the grievance of the petitioners, and after analyzing the threat perceptions, if necessitated, may pass necessary orders to provide adequate security and protection to the petitioners.”

[Leela v. State of Rajasthan, S.B. Criminal Misc (Pet.) No. 5045/2021, decided on 15-09-2021]


Appearances

For Petitioner(s): Mr. Gajendra Panwar

For Respondent(s): Mr. Arun Kumar


Arunima Bose, Editorial Assistant has reported this brief. 

Experts CornerThe Dialogue

The pro-democracy protests of Hong Kong and Belarus where citizens congregated using mobile apps are evidence of the political power of social media. This significance of the internet ecosystem amplified further during the second wave of the Covid-19 pandemic when social media played a major role in tackling the demand and supply gaps by amplifying requests for oxygen cylinders, life-saving drugs and other essential resources. However, while on one hand, the internet has provided new platforms for civic mobilisation and dissemination of information, on the other hand emerging online challenges have led to calls for digital surveillance and online censorship. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021) that envisages a new regime for governing the internet ecosystem is an apt example in this regard.

 

While appropriate regulation is critical for preserving rule of law in the digital realm, such actions need to be cautiously scrutinised owing to their ability to impinge upon the fundamental right to free speech, privacy and anonymity of the users especially women and other marginalised groups.

The feasibility of internet shutdowns

The last few years have witnessed Governments around the world increasingly resorting to internet shutdowns in times of crisis due to concerns of public safety or to curb the spread of misinformation. A shutdown is an intentional disruption of the internet-based services rendering it inaccessible for a specific location or population. Countries including Sudan, Benin, Malawi, India and Egypt amongst many others have witnessed internet shutdowns at alarming rates since 2015. The reasons are manifold but usually range from legitimate national security concerns to those around elections and pro-democracy protests where shutdowns are used as a tool for curbing dissent.

 

Such sweeping measures are like a collective punishment and not a strategic response. When the internet is off, the ability of people to freely express themselves gets limited[1], journalists struggle to upload photos and videos[2], students are cut off from their classes, accessing health care services gets difficult[3] and the economy suffers[4]. In all, such actions lead to skewing the development of a population, widening the socioeconomic disparity between them and other States of the same country, and other countries.

App bans: Can national security be ensured at the cost of fundamental rights?

 

Restricting one’s access to digital applications has been a novel way of online censorship. Various apps, including social media are used to widen one’s platform of expression. It allows one to have better access to information and ensure creation of a more inclusive space considering that the internet transcends borders. Social media apps were even used by people during the initial days of the pandemic last year to develop businesses and to increase awareness of discrimination or injustices faced by the vulnerable and minority communities. Further, they also served as a powerful tool during the 2020 United States elections,[5] where people used platforms to disseminate relevant information for voters.

 

Despite the advantages, Governments commonly justify the actions around banning internet applications by citing concerns for national security and public safety. For instance, with over 140 apps banned in India last year, the reasons for the same included dangers posed to the sovereignty, integrity and defence of India. However, experts across regimes have noted that such actions are most often counterproductive where they result in severely restricting people’s freedom of expression and right to information.

They also signal towards the deep-rooted regulatory incapabilities in a country’s cybersecurity infrastructure that forces it to rely upon such emergency blocking orders and bear the ensuing economic and geopolitical implications.

Online censorship: How much can a democracy withstand?

Censorship, for decades together, has been a tool used to curtail free speech and suppress dissent. In India, Section 69-A of the Information Technology Act, 2000 authorises the Central Government to block public access of any information online. Similar to all other fundamental rights, free speech is also subject to certain reasonable restrictions like national security amongst others and the mandate under Section 69 is in pursuance of the same. However, the non-disclosure of the orders for public scrutiny leading to disabling the citizens and the higher judiciary to meaningfully exercise their right to constitutional remedies and the power of judicial review respectively is a concern.

 

Likewise, the IT Rules, 2021 were promulgated to tackle the legitimate cybersecurity threats grappling the internet and ensure better protection of user interest. However, certain provisions like the stringent timelines for takedown and information assistance, personal liability of compliance officers, originator traceability, proactive monitoring, extended time period for data retention and enhanced scope of “actual knowledge” requiring intermediaries to take down content on the behest of users have led to concerns regarding the successful implementation of the new regime owing to their legal and technical infeasibility. Though enacted with the purpose of creating a more inclusive ecosystem, the overarching nature of these mandates pose concerns like a chilling effect on free speech, unreasonable restrictions on privacy and disproportionate censorship.

The road ahead: Laying the foundation for a free and inclusive internet

 

The future of free expressions, privacy and democratic governance rests on the decisions we make today. The importance of preserving right to free speech and access to information for creating an empowering online space has been observed by constitutional courts across the world.

 

Similar observations have also been made by several internationally acclaimed bodies including the UN Human Rights Council[6] and the ITU-UNESCO Commission[7].

 

A study conducted by The Dialogue on the American and Indian platform regulation regime shows that privacy and safety can and should be achieved together.[8] In fact overarching restrictions on civil rights lead to a deleterious impact on user safety and national security as well. Accordingly, with the past experiences and evidence-based research proving that measures like rampant internet shutdowns, app bans and online censorship are not sustainable, it is crucial to adopt a multi-stakeholders approach to tackle the perennial law and order challenges on the internet.

 

To this end, Governments should ensure that social media companies continue to benefit from the safe harbour protections unless they have an “actual knowledge” regarding the illegality of any content. Overarching regulations around content takedown, proactive monitoring, originator traceability and personal liability of platform’s employees should be resisted and implementable standard operating procedures should be developed with the help of legal and technical experts to ensure the feasibility of the norms governing the digital space.

 

Likewise, platforms must prioritise the user’s right to free speech and expression by ensuring that their terms of service and community guidelines align with their obligations under Pillar II of the UN Guiding Principles on Business and Human Rights[9]. Aligning the content moderation policies with the Manila Principles on Intermediary Liability[10] and the Santa Clara Principles on Transparency and Accountability in Content Moderation[11] which are the global standards on progressive platform regulation is also crucial.

 

Moreover, given that protection of rights is impossible without appropriate awareness regarding their existence and importance, initiatives around propagating digital literacy and awareness must also be prioritised. Civil society organisations should work towards educating users about appropriate behaviour in digital space and the ways to protect oneself from online harms through training around ways to detect misinformation or to flag and report inappropriate content on the prominent platforms.

 

Only with the users, Government, platforms, and civil society working together towards finding meaningful solutions can a free and inclusive internet that is crucial for living a life in this digital age be ensured for all.


† Research Associate (Platform Regulation) at The Dialogue.

[1] Freedom of Expression on the Internet, Organisation for Security and Cooperation in Europe, 15-12-2011 <https://www.osce.org/fom/80723>.

[2] Lungelo Ndhlovu, Facing Internet Restrictions, Journalists Turn to VPNs, 26-3-2015 <https://ijnet.org/en/story/facing-internet-restrictions-journalists-turn-vpns>.

[3] Meenakshi Ganguly, “Kashmir Shutdown Raises Healthcare Concerns”, Human Rights Watch, 30-8-2019 <https://www.hrw.org/news/2019/08/30/kashmir-shutdown-raises-healthcare-concerns>.

[4] “The Economic Costs of Government Internet Interruptions”, 7-5-2019 <https://www.riskmanagementmonitor.com/the-economic-costs-of-internet-interruptions/>.

[5] Rosamund Hutt, ​​”What are your Digital Rights?”, World Economic Forum, 13-11-2015 <https://www.weforum.org/agenda/2015/11/what-are-your-digital-rights-explainer/>.

[6] Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom, A/ HRC/ 17/27, 16-5-2011 <https://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf>.

[7] Cannataci Joseph, Privacy, Free Expression and Transparency: Redefining Their New Boundaries in the Digital Age, UNESCO Series on Internet Freedom, <https://en.unesco.org/unesco-series-on-internet-freedom>.

[8] Shreya and Tiwari, Analysing the American Safe Harbour Regime: Takeaways for India, The Dialogue, Dec 2020 <https://thedialogue.co/wp-content/uploads/2020/12/Analysing-the-American-Safe-Harbour-Regime_Takeaways-for-India_The-Dialogue.pdf>.

[9] Pillar II, “UN Guiding Principles on Business and Human Rights”, OHCHR <https://www.ohchr.org/documents/publications/guidingprinciplesbusinesshr_en.pdf>.

[10] Manila Principles on Intermediary Liability, <https://www.manilaprinciples.org/>.

[11] “The Santa Clara Principles: On Transparency and Accountability in Content Moderation” <https://santaclaraprinciples.org>.

OP. ED.SCC Journal Section Archives

The Constitution of a country is the supreme law. A written Constitution with a Bill of Rights seeks to place certain human rights and fundamental freedoms beyond the reach of ordinary laws. When human rights are incorporated into the municipal law and guaranteed by a written constitution, they are called fundamental rights and are justiciable and enforceable. As the Supreme Court significantly observed in Minerva Mills Ltd. v. Union of India1:

 

All States, whether democratic or authoritarian, purported to govern for the welfare of the people. What distinguishes a democratic State from a totalitarian one is that a free democratic State respects certain basic human rights or fundamental rights and endeavours to achieve its objectives through the discipline of fundamental freedoms.

 

We begin with the concept of “State” in Article 12. The constitutional mandate in many of the provisions in the chapter on fundamental rights is to the State not to violate fundamental rights. The State is prohibited from making laws inconsistent with Part III. Fundamental rights are enforceable against the State whose import has been expanded over a period of time.

 

The protection and enforcement of fundamental rights and freedoms is both the power and duty of the courts and the grant of appropriate remedy is not discretionary but obligatory. Even in England with no Bill of Rights it was said over a century ago:

To remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand. (Scott v. Scott2)

 

The judiciary, particularly the Supreme Court, is constituted the guardian of fundamental rights. Consistent with that function and responsibility the Court cannot refuse to entertain cases seeking protection against infringement of fundamental rights. A petition under Article 32 has to be entertained if the existence of a fundamental right and its breach, actual or threatened, is alleged and prima facie established. The position of the High Courts under Article 226 in this regard is no different.

 

Every action of the State, legislative, executive or judicial, if it violates fundamental rights is void. It is well settled that a writ lies against the judiciary in the exercise of its non-judicial functions, administrative or executive like appointments of officials as also legislative like rule making. But it has been held that the judiciary is not included in “State” in Article 12 insofar as it relates to exercise of judicial power and no writ would lie against it. The raison d’être for this is that a judicial decision in an adjudication by a court of competent jurisdiction cannot affect fundamental rights and no writ of certiorari can be issued against a court. The proposition that judicial orders cannot at all violate fundamental rights appears to suffer from some fundamental flaws.

 

Can judicial orders made by a court which is the guardian of our rights and liberties result in breach of fundamental rights and, if so, with what result and remedy? Who watches the watchmen? Can the judiciary in the discharge of judicial functions violate fundamental rights and be amenable to the writ jurisdiction is an issue of seminal importance touching upon the rule of law and our constitutional scheme.

 

In this context it has been held that (i) the judiciary in the discharge of its judicial functions cannot infringe fundamental rights, and (ii) no writ would lie against the judiciary.

 

The majority in Mirajkar3 held that it is singularly inappropriate to assume that judicial decisions can affect fundamental rights; at best it could only be a mistaken or wrong exercise of jurisdiction which can be corrected in appeal or revision but it is not open to be corrected by exercise of writ jurisdiction. On the facts it was held that there was no violation of the fundamental right under Article 19(1)(a), as contended. Assuming that a fundamental right had been violated, it was considered and held that a writ of certiorari was not available against the High Court.

 

Antulay4 is perhaps the only decision where the Court held by a majority that an order of the court, be it administrative or judicial, against the provisions of the Constitution or violative of principles of natural justice can always be remedied ex debito justitiae. Of course this was an appeal by special leave and not a writ petition.

 

There was a powerful dissent by Venkatachaliah, J. where the learned Judge held that the impugned withdrawal of the case from the Special Judge to the High Court had been challenged earlier and upheld by the Supreme Court and it could not again be sought to be undone by a side wind, as it were. There was thus a finding against any such violation; the principle of finality of judgments/orders would apply.

 

In Hurra case5 it was laid down that a judgment may be assailed as a nullity on grounds like violation of natural justice, where the applicant was not a party to the lis or was not notified of the proceedings or where there was reasonable apprehension of bias of the Judge. But even in Hurra5 which innovated the concept of a curative petition and held that a judgment may be impugned as noted above, it was emphatically reiterated that a judicial decision cannot be violative of fundamental rights and no writ would be maintainable against the judiciary on that ground. Further a curative petition is a proceeding after one has exhausted all remedies-appeal, review, et al.

 

It is only in Mirajkar3 that the question directly arose whether a judicial order may breach fundamental rights, and if it did, whether as a remedy therefor a writ could issue to a superior court. The majority answered both in the negative-the judiciary cannot in discharging judicial functions infringe fundamental rights and no writ of certiorari will issue to a superior court to remedy the violation, if any. The dissent of Hidayatullah, J. took the opposite view on both counts.

 

There are two aspects of the issue : one, whether a judicial decision can violate fundamental rights and the other, the remedy therefor if it did-whether a writ would lie.

 

It is significant that Mathew, J. hit the nail on the head when he observed in Kesavananda Bharati6 that Hidayatullah, J. in his dissenting judgment in Mirajkar3 rightly took the view that the judiciary is also “State” within the definition of that word in Article 12. He went on to say that convicting and punishing a person twice for an offence by a judgment is equivalent to the “State passing a law in contravention to the rights conferred by Part III” for the purpose of enabling the person to file a petition under Article 32 to quash the judgment.7

 

It is submitted that in all cases, particularly Mirajkar3, the Court’s enquiry started from the wrong end i.e. whether a writ of certiorari would lie to a superior court. The Court conceptualised and defined the wrong having regard to and conditioned by the remedy available to right the wrong. This question of the remedy if there is a wrong is indeed the secondary question; the primary question is whether a judicial order can infringe a fundamental right. The Court seems to have forgotten the maxim that every right has a remedy.

 

Any State action, legislative, administrative or judicial, which violates “due process”, either directly or indirectly, is void. [Basu’s Commentary on the Constitution of India, (7th Edn.) Vol. C, p. 29 – with reference to the position in the USA.] There are many instances. The American Constitution XIV Amendment is similar to our Article 14.

  1. … it has never been suggested that State court action is immunized from the operation of those provisions [XIV Amendment’s prohibitory provisions] simply because the act is that of the judicial branch of the State Government. [Shelley v. Kraemer8]

 

It may be difficult to establish violation of Article 14 or any other provision of Part III by a Judge acting judicially, but if proved it has to be condemned and remedied. Transfer of cases-civil and criminal-which the law permits, withdrawal of cases before a smaller Bench to a larger Bench may be impugned as being arbitrary or violating Article 14 by denying the petitioner a right of appeal available to all other litigants. That would be carrying matters to absurd lengths and making a mockery of the system of administration of justice. Otherwise a litigant could always complain that a Judge heard a particular case for a longer time and his for a shorter duration and denied him equality of opportunity offending Article 14. These are not the kind of violations of fundamental rights that we are discussing, but it is something more substantial.

 

As Seervai points out as an illustration [H.M. Seervai, Constitutional Law of India, 4th Edn., Vol. 1, p. 395], if a Judge denied discretionary orders of a particular kind to members of one community while granting them under similar circumstances to members of another community, it is difficult to see how the court can shy away from its duty of nullifying such action as violation of fundamental right. To suggest that the aggrieved person should exhaust his remedies of appeals and/or revision would mean that the person is denied the fundamental right of having a speedy, effective remedy and the fundamental right and constitutional remedy under Article 32 is rendered a sonnet writ on water. It is not inconceivable that a Judge may commit breach of Articles 14, 15, 17, 19, 20, 21, 22 by his judicial order.

 

It is not uniformity of decisions or even the process of hearing or merely erroneous or mistaken or wrong decisions on constitutional or other legal points that can be said to be violative of fundamental rights. Such challenge must be more solid and meaningful and rest on surer foundations.

 

What may superficially appear to be an unequal application of the law may not necessarily amount to a denial of equal protection of law unless there is shown to be present in it an element of intentional and purposeful discrimination. [Stone, C.J. in Snowden v. Hughes9] As Hidayatullah, J. said in his Mirajkar3 dissent:

  1. 122. The power and jurisdiction of this Court [under Article 32] is so narrow that nothing on the merits of a controversy of a civil case can ever come up before it under Article 32. … It is unlikely that this Court will torture cases to fit them into Article 32. It cannot be brought here by pleading breach of fundamental rights. It is only when a Judge directly acts in some collateral matter so as to cause a breach of a fundamental right that the ordinary process of appeals being unavailable or insufficient, a case under Article 32 can be made out. … Where a High Court Judge acts collaterally to cause a breach of fundamental right, I am clear that an approach to this Court is open under Article 32.10

 

It is fruitful to refer to the concurring opinion of Frankfurter, J. in Snowden v. Hughes9:

  1. The Constitution does not assure uniformity of decisions or immunity from merely erroneous action, whether by the courts or the executive agencies of a State.11

 

This passage and the one from Stone, C.J. in the same case quoted supra were quoted by S.R. Das, J. in Budhan Choudhry v. State of Bihar12. But there is another passage in the same paragraph in the judgment of Frankfurter, J. (as Seervai points out p. 390) which is directly relevant:

  1. 30. … And if the highest court of a State should candidly deny to one litigant a rule of law which it concededly would apply to all other litigants in similar situations, could it escape condemnation as an unjust discrimination and therefore a denial of the equal protection of the laws?13

 

It is submitted that the two passages in the opinion of Frankfurter, J. taken together seem to lay down the correct principle, though that case did not relate to judicial orders as pointed out by Gajendragadkar, C.J. in Mirajkar3.

 

It is noteworthy that a unanimous Constitution Bench in Shivdev Singh v. State of Punjab14 held that the inherent power under Article 226 could be invoked by way of a writ petition to review an order made in an earlier writ petition where the High Court had passed an order to the prejudice of the person filing the fresh writ petition without having heard such person.

 

It is necessary and appropriate at this stage to refer to two other cases which have a bearing on this issue:

 

In Supreme Court Bar Assn. v. Union of India15, the SCBA filed a writ petition under Article 32 seeking a declaration that only the Disciplinary Committee of the Bar Council can impose any punishment on an advocate for professional misconduct and suspend his licence and courts have no such jurisdiction including under Articles 129, 142 or 215. This was a sequel to the Supreme Court in purported exercise of powers under Articles 129 and 142 holding16 an advocate guilty of contempt of court and sentencing him to simple imprisonment for 6 months which sentence was suspended for the time being and further suspending his licence/sanad for 3 years thereby debarring him from practising as an advocate. The Constitution Bench in SCBA15 unanimously held that the Court had no jurisdiction to suspend an advocate’s licence in exercise of powers under Article 129 read with Article 142. This was indeed a case of violation of fundamental right by a judicial order though it was not so contended expressly and the Supreme Court in exercise of its writ jurisdiction granted the relief.

 

In M.S. Ahlawat v. State of Haryana17, the challenge again was by way of a writ petition under Article 32 to an earlier order of the Supreme Court whereunder the petitioner was held guilty of an offence under Section 193 IPC-fabricating false records before the Supreme Court-and convicted and sentenced and he served the sentence. This was based only on the investigation which the Supreme Court had ordered and was without any trial. He was also convicted and sentenced for contempt of court under Article 129 which was not challenged. It was contended that in convicting the petitioner under Section 193 IPC the Court had completely stultified the procedure prescribed under the Code of Criminal Procedure thereby acting contrary to the mandate of Article 21. The Court observed that when a litigant complains of miscarriage of justice by an order of the Court passed without jurisdiction or without following the due procedure and resulting in his incarceration losing valuable liberty for a period with attendant catastrophe descending on his career and life, the Court has no option but to examine the correctness of the contentions. The Court also observed that to perpetuate an error is no virtue but to correct it is a compulsion of judicial conscience. Accordingly the Court unhesitatingly recalled and set aside the order18 made earlier convicting the petitioner under Section 193 IPC, while upholding the conviction and sentence under Article 129.

 

The Court further held that the order setting aside the conviction would not enable the petitioner to claim any compensation or initiate any proceedings in any court arising out of his conviction except to use the same in any proceeding initiated against him departmentally regarding his service. This was on the basis of an affidavit filed by the petitioner. But such affidavits and undertakings or contracts waiving one’s fundamental rights are void and unenforceable. It is submitted that the Court was clearly not right as far as this part of the order is concerned.

 

It is seen that this was a typical case of breach of a person’s fundamental right by a judicial order of the highest court. It was so contended expressly in a writ petition under Article 32 which was allowed. It would appear that in both these cases the Court was not impeded by procedural technicalities. What, therefore, emerges is that the Supreme Court has granted the appropriate relief without expressly acknowledging violation of fundamental rights by judicial orders. This does not seem to be apt or commendable. Yet curiously even thereafter in Hurra case5 the Supreme Court asserted that a judicial order cannot violate fundamental rights.

 

Interestingly and significantly the Supreme Court in Ram Deo Chauhan v. Bani Kanta Das19, expressly recognised that a judicial order may violate fundamental rights. This was a review in a writ petition under Article 32. It was stated,

 

The assumption … that there can be no violation of a person’s human rights by a judgment of this Court is possibly not correct. … The instances of this Court violating the human rights of citizens may be extremely rare but it cannot be said that such a situation can never happen. We can remind ourselves of the majority judgment of the Constitution Bench in ADM, Jabalpur20.21

 

The order of the Governor under Article 161 commuting the death sentence to life imprisonment which was set aside in the earlier writ petition was restored.

 

It is pertinent to refer to Anjan Kumar Banerjee v. State of W.B.22 where on 20-2-2009 a two-Judge Bench referred to a larger Bench the matter whether breach of fundamental rights is possible by courts-judicial order, whether court is included in “State” under Article 12 and whether a writ petition could be entertained to recall earlier orders of the court on the ground that they violated fundamental rights. But quite unfortunately on 9-10-2012 a three-Judge Bench dismissed23 the case. The questions have remained unanswered.

 

In Ashiq Hussain Faktoo v. Union of India24 (decided on 24-9-2014 by a two-Judge Bench) a writ petition under Article 32 was filed against the Supreme Court judgment25 reversing the judgment of acquittal to that of conviction allegedly based on impermissible confession breaching Article 21. It was ordered that the writ petition be converted into a review petition to be heard in open court on the fundamental principles of review as well as the maxim ex debito justitiae. However, a three-Judge Bench in Ashiq Hussain Faktoo v. Union of India26 (decided on 30-8-2016) held that frantic cries of injustice founded on perceived erroneous application of law or appreciation of facts was not enough to extend the frontiers of the ex debito justitiae jurisdiction, that open court hearing of review petitions in terms of Mohd. Arif27 decision was available as of right only in death sentence cases and the petition was dismissed as not maintainable on the basis of Hurra5 decision. It is submitted that this is unexceptionable.

 

As the Almighty does not share His omniscience and infallibility with the judiciary, it would be naive to suggest that judicial function/order can never result in breach of fundamental rights. Laying down such a legal position is merely shying away from the truth and an illustration of an egocentric exercise of power. It cannot be stated as a proposition that the exercise of judicial/quasi-judicial power by any authority cannot at all result in breach of fundamental rights. Judicial power of the State stricto sensu is exercised by courts. However, it is also exercised in some ways and to some extent by the other wings. The Tribunals and even executive authorities exercise that power. Parliament and State Legislatures in the exercise of their privileges-enforcing the privilege and punishing for its breach-exercise a quasi-judicial power. That may also result in breach of fundamental rights which makes the proceeding suffer from not mere procedural irregularity but substantive illegality or unconstitutionality rendering that exercise of power amenable to review and correction in writ jurisdiction. When such is the legal position, it is incomprehensible as to how and why, when the judiciary discharges judicial function there can never be any violation of fundamental rights. When the exercise of quasi-judicial power can result in violation of fundamental rights, there is no reason why exercise of judicial power stricto sensu cannot breach fundamental rights. This is all the more possible in cases of judicial legislation where decisions of the court may often violate rights, including fundamental rights, of persons not before the court. It is immaterial in this context as to which body or authority or wing exercises that power. There cannot be an artificial exclusion of the judiciary on any fragile ground. That a judicial decision cannot affect fundamental rights appears to be mere ipse dixit without any constitutional or jurisprudential support. It would mean that the judiciary while discharging judicial functions is above the Constitution. The superior judiciary too is a creature of the Constitution. It cannot be placed on a high pedestal removed from and above the Constitution and the law.

 

Basu in his Commentary on the Constitution of India (7th Edn., Vol. A/1, pp. 256-65), also points out how the proposition is flawed. Apart from the fact that the exclusion of a judicial decision emasculates the concept of “State action” as embodied in Article 12, it is not supportable either on juristic principles or on the very text of Article 12 itself. The very foundation of the assumption that Article 12 does not extend to courts does not survive after the decision in Rajasthan Electricity Board28.

 

To say that the application of the fundamental rights has a narrower scope against a judicial decision is different from the radical proposition that the Judiciary is excluded from the definition of “State” in Article 12, so that there cannot be any collateral constitutional remedy against a judicial decision. (p. 257)

 

He further says (p. 261) that the courts too are limited by the Constitution’s mandatory provisions and cannot be allowed to override fundamental rights under the shield that they have, within their jurisdiction, the right to make an erroneous decision. A decision contravening fundamental rights is not merely a wrong decision, but one without jurisdiction and a nullity. It cannot be contended that a court has jurisdiction to violate the Constitution-the higher law by or under which all courts are constituted; a constitutionally invalid decision is void for want of jurisdiction.

 

Such cases of violation of fundamental rights by the judiciary may be few and far between and it may be difficult to delineate their contours with certainty and precision. The court would have to examine and give a finding in each case. But as a proposition it may be constitutional blasphemy.

 

The major premise is that the judiciary too (like any other authority) even in rendering a judicial decision may violate fundamental rights. This can be said to be firmly established from the discussion above. The minor premise is-what is the remedy for such violation?

 

Whether a judicial order can violate fundamental rights does not and cannot depend upon what, if any, is the remedy for such violation. The existence of a constitutionally guaranteed fundamental right cannot and does not depend on the technicalities of its enforcement and the availability of a remedy. Remedy, if not readily visible or available, would have to be innovated and the fundamental right enforced.

 

The root principle of law married to justice is ubi jus ibi remedium, as stated in Shiv Shankar Dal Mills v. State of Haryana29, that is, where there is a right there is a remedy. It is not the other way round. Hence violation of a right must necessarily have a remedy. Now, as has been noted, that the judiciary may, in exercise of judicial powers, commit a breach of fundamental rights, such breach cannot go unredressed. Therefore the issue of whether a writ of certiorari will go to a court is really immaterial and need not detain us. That is looking at the problem from the wrong end.

 

In Pinochet case30 the House of Lords set aside its decision (R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte31). So did our Supreme Court in SCBA15 and Ahlawat17. In Hurra5 the Supreme Court held that the decision of the Court may be assailed and set aside. How that is to be done-in what proceedings and in what manner-is altogether different. Strangely and unfortunately the Supreme Court has examined the whole issue from the wrong end, from the point of view of the remedy, whether it can be effectively granted. In so doing the Court missed the cardinal principle that where there is a right and it is infringed there ought to be a remedy.

 

Article 32 guarantees protection and enforcement of fundamental rights and invests the Supreme Court with power to issue appropriate directions, orders or writs for the said purpose including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. Under Article 226 the High Courts are invested with the same power for the enforcement of fundamental rights and for any other purpose. It is well settled that in India we do not have to be bogged down by the technicalities of English prerogative writs and the expression “writs in the nature of” has enlarged the jurisdiction and made it more comprehensive. It is equally settled right from 1950 itself that the powers conferred on the Supreme Court under Article 32 are much wider and not confined to issuing prerogative writs only (Rashid Ahmed v. Municipal Board, Kairana32, SCC at p. 227, para 14 : AIR at p. 165). Any construction introducing unnecessary procedural restrictions defeats the very purpose of Articles 32 and 226 (Dwarka Nath v. ITO33, AIR at p. 84-85).

 

In M.C. Mehta v. Union of India (Shriram-Oleum Gas)34, the Constitution Bench unanimously laid down:

  1. 7. … this Court under Article 32(1) is free to devise any procedure appropriate for the particular purpose of the proceeding, namely, enforcement of fundamental right and under Article 32(2) the court has the implicit power to issue whatever direction, order or writ is necessary in a given case, including all incidental or ancillary power necessary to secure enforcement of the fundamental right. … Article 32 is not powerless to assist a person when he finds that his fundamental right has been violated. He can in that event seek remedial assistance under Article 32.35

What is said of the Supreme Court under Article 32 would apply pro tanto to the High Courts under Article 226.

 

To start with the deficiencies of the English prerogative writ of certiorari to curtail or deny protection of the guaranteed right under Article 32 is to put the cart before the horse. In the light of this, and even otherwise, examining whether a writ of certiorari can issue to a court to remedy the infringement of a fundamental right is both unnecessary and inappropriate. Enforcement is not the real test of the existence of a right or its violation.

 

Fundamental rights are guaranteed and any action infringing fundamental rights is void. The right to have the fundamental rights enforced is itself a fundamental right. Article 32 deals with remedies for enforcement of fundamental rights as is clear from its heading. Article 226 is no different. It is trite that the existence of a right is the foundation for invoking the writ jurisdiction. The perceptive remarks of Mathew, J., though extra curial, are illuminating:

 

The realization that Article 226 is concerned with remedies, and not rights, is the beginning of wisdom in constitutional law.36

 

He further states that hence if a person has a right, he would be entitled to enforce that right by a suit on the basis ubi jus ibi remedium even if the remedy by way of a writ is not available. The scope of declaratory actions being wide enough, the relief against breach of fundamental rights would be available.

 

Therefore the relief against violation of fundamental rights by a judicial order, even of the highest court, can be obtained in a regular civil suit in the court of first instance. Such is also the position laid down by the Privy Council in Secy. of State v. Mask & Company37 that even if the jurisdiction of the civil courts is excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. When that was the position prior to the Constitution, then with fundamental rights guaranteed now the case for the courts to intervene would be even stronger. What can be done and secured in a suit in a civil court can also be secured in proceedings under Article 226 before the High Court. The only specialty about Article 32 is that it is itself a fundamental right. All these proceedings under Article 32 or 226 or a civil suit under Section 9 of the Civil Procedure Code are different remedies. The relief may take varied forms and may be moulded to meet the exigencies. Theoretically this appears to be the unassailable position. If there are any practical problems, that is another matter.

 

It is submitted that it would not be necessary to issue a writ of certiorari to quash the offending judicial order which violates fundamental right. It would be enough if there is a declaration to the effect that the order is null and void.

 

As pointed out in Wade and Forsyth, Administrative Law (10th Edn., p. 529) dealing with declaratory orders:

 

A mandatory order is often used as an adjunct to a quashing order. … But either remedy may be used by itself. … If a mandatory order is granted without a quashing order, the necessary implication is that the defective decision is a nullity, for it is only on this assumption that a mandatory order can operate. A simple mandatory order does the work of a quashing order automatically.

 

If this is so in England without a written Constitution and a Bill of Rights and the historical technicalities of prerogative writs, what to say of India-with guaranteed fundamental rights with the right to enforce those fundamental rights itself being a fundamental right that is guaranteed. The Court may make a declaratory order that what is complained of has breached fundamental right(s) and cannot be allowed to remain.

 

It is needless to say that all this is, of course, subject to the finality of judgments/orders. What is necessary is that a challenge on this ground has to be examined and a decision given, it is not that successive or repeated challenges can be raised till one succeeds.

 

It is, therefore, submitted that the postulate that a judicial order cannot at all violate fundamental right(s) and there is no remedy in writ jurisdiction for such violation, if any, is wholly unsupportable. Even when the position has been diluted by the Court granting relief in some cases, the ghost of Mirajkar3 seems to haunt us and its incantation continues to be repeated. Mirajkar3 being overruled and buried in the dustbin of history would serve the law and the nation better. The vindication of fundamental rights against their breach by whomsoever is not a confrontation but it is really the protection of the integrity of the Constitution, a solemn exultation of the Constitution which is the judiciary’s and particularly the Supreme Court’s constitutional obligation.

 

The exercise of the power of judicial review by issue of appropriate writs, especially when it concerns protection and enforcement of fundamental rights has to be robust. It is of utmost importance that, as Chandrachud, J. said, “[in] the last analysis the people for whom the Constitution is meant, should not turn their faces away from it in disillusionment for fear that justice is a will-o’-the wisp.” (State of Rajasthan v. Union of India38.)


*The article has been published with kind permission of Eastern Book Company. Cite as (2021) 3 SCC J-44

* Advocate. Author, Working of the Constitution : Checks and Balances (1st Edn. 2014, Eastern Book Company) and Revising Author, V.G. Ramachandran’s Law of Writs [7th Edn. 2021 (In Press), Eastern Book Company].

1(1980) 3 SCC 625.

2[1913] A.C. 417, p. 477 (HL).

3Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1.

4A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602.

5Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388.

6Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

7Id, pp. 877-78, paras 1703-04.

81948 SCC OnLine US SC 59, para 30 : 92 L.Ed 1161 : 334 US 1 (1948).

91944 SCC OnLine US SC 18 : 88 L Ed 497 : 321 US 1 (1944), p. 16.

10Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, p. 34, para 122.

11Snowden v. Hughes, 1944 SCC OnLine US SC 18, para 30 : 88 L Ed 497 : 321 US 1 (1944).

12AIR 1955 SC 191.

13Snowden case, 1944 SCC OnLine US SC 18, para 30.

14AIR 1963 SC 1909.

15(1998) 4 SCC 409.

16Vinay Chandra Mishra, In re, (1995) 2 SCC 584.

17(2000) 1 SCC 278.

18Afzal v. State of Haryana, (1996) 7 SCC 397.

19(2010) 14 SCC 209, p. 224.

20ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521.

21Ram Deo Chauhan case, (2010) 14 SCC 209, p. 224, paras 50-52.

22(2014) 1 SCC 697.

23Anjan Kumar Banerjee v. State of W.B., WP (C) 49 of 2009, order dated 9-10-2012 (SC).

24(2016) 9 SCC 746.

25CBI v. Ashiq Hussain Faktoo, (2003) 3 SCC 166.

26(2016) 9 SCC 739.

27Mohd. Arif v. Supreme Court of India, (2014) 9 SCC 737.

28Rajasthan SEB v. Mohan Lal, AIR 1967 SC 1857.

29(1980) 2 SCC 437.

30R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No.2), [2000] 1 A.C. 119 : (1999) 2 WLR 272 (HL).

31[2000] 1 A.C. 61 : (1998) 3 WLR 1456 (HL).

321950 SCR 566 : AIR 1950 SC 163.

33AIR 1966 SC 81.

34(1987) 1 SCC 395.

35Id, pp. 407-08, para 7.

36K.K. Mathew, Democracy, Equality and Freedom, Eastern Book Company, (1978), p. 21, fn 46.

371940 SCC OnLine PC 10 : AIR 1940 PC 105.

38(1977) 3 SCC 592, p. 646, para 134.

Case BriefsHigh Courts

Rajasthan High Court: Dinesh Mehta, J., allowed and disposed off a writ petition which was filed aggrieved of the respondent’s action of reflecting petitioner’s name in the list of ineligible/rejected candidates.

Petitioner had acquired GNM Diploma Course and was professionally qualified for the post of Nurse Grade-II/GNM, vied pursuant to recruitment notification dated 30-05-2018, issued by the respondents for filling up 6035 posts of Non-TSP area. All other formalities of registration with the Rajasthan Nursing Council (RNC) were up to date and only after which she was selected as Nurse Grade-II on a contractual basis and had been discharging her duties at MDM Hospital, Jodhpur since 01-09-2009. While she was working here a contractual basis the State of Madhya Pradesh had issued a recruitment notification for filling up regular posts of GNM for which the requirement was to have registration in the State of Madhya Pradesh and thus, she had applied for migration of her registration to Nursing Council, Bhopal on 21-07-2011 but before which she changed her mind requested that State of MP not to the registration certificate. Later, when the respondents issued the recruitment notification as of 30-05-2018, she filled the form. Meanwhile, the petitioner’s registration certificate expired on 31-12-2018, thus, she applied for renewal of registration, while depositing requisite fee. She was informed that her registration certificate had been wrongly renewed in 2014. According to the respondent – Council she had obtained NOC in the year 2011, her registration could not be renewed in December, 2014 after which she filed for fresh registration. The petitioner appeared in the written examination and having secured higher marks (63.939%) than the cutoff of her category   (58.192%),   she was called for document verification in which she produced her original registration certificate with   Rajasthan Nursing   Council dated   11-02-2009   (having its validity till 31-12-2018), along with other relevant documents. Petitioner also produced proof of having applied for renewal/fresh registration. The petitioner found her name reflected in the list of rejected candidates, citing “Rejected due to RNC”.

Counsel for the petitioner, Mr Yashpal Khileree submitted that Para 5 of the advertisement which dealt with the eligibility clause stated that a candidate applying for the post of Nurse Grade-II was required to have a valid registration till the last date of submitting the application form (12-05-2018). He further submitted that on the last date of submitting application form namely 03-07-2018 (and even on 12-05-2018), the petitioner was possessed with a valid certificate and as soon as the validity of the registration expired,   she had applied for renewal thereof.   He added that since the respondents delayed renewal of the said certificate, she was constrained to apply for registration afresh, on 19-08-2019, prior to the date of document verification. He further drew Court’s attention to an order issued by the respondent particularly Condition No.15 thereof and submitted that the respondents themselves have relaxed the condition of the advertisement.

Sum and substance of arguments of counsel for the State, Mr K. S. Rajpurohit, AAG assisted by Mr Shreyansh Mehta, Mr Abhinav Jain for Mr Mahendra Vishnoi was, that petitioner did not have a valid registration on the date of submitting an application form and thus even if she was able to obtain a fresh registration on 13-01-2020, she could not be held eligible for appointment.

The Court observed that the petitioner cannot be alleged to be lax in any manner which was evident from the fact that when she could not get her registration renewed, she applied for fresh registration by way of submitting an application and tendering requisite fee of   Rs 2000. The Court further observed that the respondents have not placed on record any document evincing that the petitioner had been put to any notice about such wrongful renewal, have failed to bring to the notice of this Court, any statutory provisions or guidelines etc. providing that merely on the issuance of a ‘NOC’ by Nursing Council of one State, a candidate’s registration stands cancelled. They further could not being any evidence that the petitioner had got herself registered with Nursing Council, Bhopal and continued with dual registration. Court reached an unwavering conclusion that the petitioner fulfilled both the requirements, namely – having a valid registration certificate on the date of submitting the application form and also the other requirement in terms of Regulation 46 of the Regulations of   1964,   as she was having a   valid registration certificate at the time of issuance of the select list.  The Court thus held that the Petitioner’s eligibility, therefore, could not be questioned.

The Court explained that if respondent’s stand that immediately on grant of no objection certificate by Rajasthan Nursing Council, a candidate’s registration stands cancelled was taken to its logical end, then in the opinion of this Court, during the interregnum period of issuance of a no objection certificate by RNC and grant of registration by other State, a duly qualified and eligible Nurse Grade-II/Midwife would lend themselves in no man’s land – a situation of having no registration at all.  Such situation, would naturally impinge upon a candidate’s fundamental rights guaranteed by Articles 14, 16 and 19(1)(g) of the Constitution of India.

The petition succeeded and the Court ordered that the list reflecting the petitioner’s name in the list of rejected candidates to be quashed and set aside.[Sangeeta Mathews v. State of Rajasthan, S.B. Civil Writ Petition No. 1552 of 2020, decided on 19-04-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsForeign Courts

Supreme Court of Pakistan: In a significant decision, the 3 Judge Bench of the Court comprising of Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah, JJ., while deliberating upon issues revolving around the scientific veracity of virginity tests to ascertain rape and questioning a woman’s sexual history in order to discredit her witness; held that a woman irrespective of her sexual character or reputation, is entitled to equal protection of law. The courts should discontinue the use of painfully intrusive and inappropriate expressions, like “habituated to sex”, “woman of easy virtue”, “woman of loose moral character”, and “non-virgin”, for the alleged rape victims even if they find that the charge of rape is not proved against the accused. Such expressions are unconstitutional and illegal.

Issues: In the instant appeal filed by the rape accused, the Court upon perusing the facts and arguments presented by the parties, formulated the following issues-

  • Whether recording sexual history of the victim by carrying out “two-finger test” (TFT) or the “virginity test” has any scientific validation or evidentiary relevance to determine the commission of the sexual assault of rape.
  • Whether “sexual history”, “sexual character” or the very “sexuality” of a rape survivor can be used to paint her as sexually active and unchaste and use this to discredit her credibility.
  • Whether her promiscuous background can be made basis to assume that she must have consented to the act.

Perusing the aforementioned issues, the Court delved into the approaches of modern forensics vis-à-vis TFT and studies conducted by Pakistan’s National Commission on the Status of Women (NCSW) on the point. The Bench also took note of the approach taken by the World Health Organisation, the United Nations and United Nations Entity for Gender Equality and the Empowerment of Women on the matter. It was observed that Modern forensic science thus shows that the two finger test must not be conducted for establishing rape-sexual violence, and the size of the vaginal introitus has no bearing on a case of sexual violence. The status of hymen is also irrelevant because hymen can be torn due to several reasons such as rigorous exercising. An intact hymen does not rule out sexual violence and a torn hymen does not prove previous sexual intercourse. Hymen must therefore be treated like any other part of the genitals while documenting examination findings in cases of sexual violence. Only those findings that are relevant to the episode of sexual assault, i.e., findings such as fresh tears, bleeding, oedema, etc., are to be documented.

Considering the constitutional aspects, the Court stated that dragging sexual history of the rape survivor into the case by making observations about her body, is an insult to the reputation and honour of the rape survivor and violates Article 4(2)(a) of the Constitution of Islamic Republic of Pakistan. reporting sexual history of a rape survivor amounts to discrediting her independence, identity, autonomy and free choice thereby degrading her human worth and offending her right to dignity guaranteed under Article 14 of the Constitution, which is an absolute right and not subject to law. “Right to dignity is the crown of fundamental rights under our Constitution and stands at the top, drawing its strength from all the fundamental rights under our Constitution and yet standing alone and tall, making human worth and humanness of a person a far more fundamental a right than the others, a right that is absolutely non-negotiable”.

The Court also pointed out the deep gender biases and inexperience which riddle the medico-legal certificates, like- casually reporting the two finger test, to show that the vagina can admit phallus-like fingers to conclude that the survivor was sexually active at the time of the assault or a ‘virgin”; calling into question the character of the rape survivor etc. The Court stated that such callous approaches are used to support the assumption that a sexually active woman would easily consent for sexual activity with anyone. “Examination of a rape victim by the medical practitioners and use of the medical evidence collected in such examination by the courts should be made only to determine the question whether or not the alleged victim was subjected to rape, and not to determine her virginity or chastity”.

The Court also pointed out that the omission of Article 151(4) Qanun-e-Shahadat Order, 1984 (which allowed the opinion of medical experts as to the virginity tests while deciding rape cases), clearly implies a prohibition on putting questions to a rape victim in cross-examination, and leading any other evidence, about her alleged “general immoral character” for the purpose of impeaching her credibility. The said omission also indicates the legislative intent that in a rape case the accused cannot be allowed to question the complainant about her alleged “general immoral character”.

As a final point, the Bench observed that, “While allowing or disallowing such questions the court must be conscious of the possibility that the accused may have been falsely involved in the case, and should balance the right of the accused to make a full defence and the potential prejudice to the complainant’s rights to dignity and privacy, to keep the scales of justice even”.

[Atif Zareef v. The State, Criminal Appeal No.251/2020, decided on 04-01-2021]


Sucheta Sarkar, Editorial Assistant has reported this brief.


Note: The bench of Justice Ayesha A. Malik of Lahore High Court had also made similar observations in Sadaf Aziz v. Federation of Pakistan, wherein she held that virginity tests are invasive and blatantly violate the dignity of a woman.    

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Judge Bench of Sisira. J. de Abrew, Murdu Fernando and Gamini Amarasekara, JJ., allowed a petition which was filed by the petitioner alleging that her Fundamental Rights guaranteed by Articles 12(1), 12(2), and 14(1)(g) of the Constitution had been violated by the Respondents.

The Petitioner who passed had the GCE (Ordinary Level) with five distinctions in the year 2000 and the GCE (Advanced Level) with two credit passes and one simple pass in the year 2003, was appointed as Management Assistant in the Department of Irrigation on contract basis with effect from 21-5-2008, thereafter her services were extended till 31-12-2014. Thereafter, the Petitioner was appointed to the post of clerk with effect from 24-10-2014 and stated that she had fulfilled the requirements stated in the said Circular. After the Petitioner assumed duties as a clerk, she was paid salaries from January 2015 to August 2015 on the salary scale stated in the said letter of appointment. However, the Petitioner’s appointment to the post of clerk was cancelled with effect from 17-11-2014 which was the date of the letter of appointment.

The Senior State Counsel (SSC), Mr. Rajiv Goonatilake contended that the Petitioner was not entitled to be appointed to the post of clerk since the said Circular had authorized to appoint Management Assistants to the permanent cadre only if they (Management Assistants) were drawing the salary scale of MN1 and in the current case Petitioner was not on the salary scale of MN1 but on the salary scale of MN2. According to the contention of the SSC, if the Petitioner was drawing a salary of Rs.13,120/-, she was entitled to be appointed to the permanent cadre. It was alleged that it is an accepted principle in law that no man is permitted to take advantage of his own mistake. This view was supported by the observation made by His Lordship Justice Sansoni in the case of Kanapathipillai v. Meerasaibo, 58 NLR page41 at page 43 wherein His Lordship had observed thus “no man is allowed to take advantage of his wrong.” The Court observed that in the present case, the Petitioner’s appointment to the post of clerk (permanent cadre) was cancelled on the basis of an alleged mistake committed by the Director-General of Irrigation who had acted on behalf of the Government.

The letter of appointment stated that this post was permanent and pensionable. Her salary was Rs.13,120/-. The Government paid her salary (Rs.13,120/-) on the basis that she had been appointed to the post of clerk for eight months and remitted Rs.870/- monthly to the W&OP. This was established by her salary slips marked as P10(i) to P10(viii). The Petitioner gave up her post of Management Assistant on contract basis when she was appointed to the new post. Presently, the Petitioner had lost her earlier post of Management Assistant and her new post of clerk.

The Court relied on certain judicial decisions considering the question of whether the Petitioner had a legitimate expectation of continuing in the permanent cadre of the Government Service. In the case of Dayaratne v. Minister of Health, (1999) 1 SLR 393 this court held that,

            “On the facts of the case, the petitioners had a legitimate expectation that they would, upon satisfying prescribed conditions, be provided with a course of training for the examination leading to the award of the certificate of competency as Assistant Medical Practitioners. The decision effecting a change of policy which destroyed the expectation of the petitioners did not depend upon considerations of public interest. In deciding upon the conflicting interests of Graduate Medical Officers and Assistant Medical Practitioners, the 1st, 2nd and 3rd respondents (the Minister, his Secretary and the Deputy Director General Administration, respectively) considered the views of the GMOA and yielded to their pressure. Neither the views of the Assistant Medical Practitioners nor those of the petitioners were sought. Hence, rights of the petitioners guaranteed by Article 12 (1) of the Constitution were violated.”

Other cases relied on by the Court were Sirimal v. Board of Directors of the Co-operative Wholesale Establishment, (2003) 2 SLR 23; Surangani Marapana v. Bank of Ceylon, (1997) 3 SLR 156 and Pinnawala v. Sri Lanka Insurance Corporation, (1997) 3 SLR 85.

The Court finally considering all the matters above held that Petitioner had a legitimate expectation to continue in the permanent cadre of Government Service until the date of her retirement.

The Court while allowing the petition held that Petitioner’s fundamental rights guaranteed by Article 12(1) and 14(1)(g) of the Constitution had been violated by the Director General of Irrigation who acted on behalf of the Government and further held that Petitioner was entitled to be in the permanent cadre of Government Service on conditions stipulated in her letter of appointment directing the respondent to pay her back wages and other remunerations from the date that she was stopped from reporting for duty along with compensation decided by the Court.[D.B.D Rajapakshe “Prashakthi” Ratmalwala v. Y. Abdul Majeed, SC. FR Application No. 418 of 2015, decided on 12-02-2021]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsForeign Courts

Constitutional Court of Zimbabwe: While scrutinizing the constitutionality of the policy and actions of the education authorities in compelling schoolchildren to salute the national flag and to say the words “Almighty God, in whose hands our future lies” in the process of reciting a pledge of allegiance to the country, the 9-Judge Bench of the Court held that the policy of the education authorities which compels schoolchildren, regardless of religious affiliation, to salute the national flag and to say the words “Almighty God, in whose hands our future lies” as part of the recitation of the schools’ national pledge of allegiance violates Section 60(1) of the Constitution which enshrines the Right to Freedom of Religion and the Right to Freedom of Religion of Children who belong to faiths that do not embrace the belief in the existence of God or in the existence of a God at all.

Facts and Contentions: In 2016, the Ministry of Primary and Secondary Education introduced the pledge wherein all school students were compulsorily required to memorise and recite at assemblies every school day without any exemption. The primary purpose and objective of the pledge was to “inculcate into schoolchildren of feelings of patriotism and other ethical precepts, such as honesty and dignity of hard work”. The intent behind the introduction of the said pledge was secular in nature. Compulsory recitation of the pledge in the current form by children at the private and public infant, primary and secondary schools was the chosen means by which the governmental policy behind the pledge is enforced.

The pledge was challenged by a devout member of the Apostolic Faith Mission (AFM). He approached the Court alleging that-

  • The pledges as formulated violate his children’s fundamental right to freedom of religion, in that they are compelled to salute the national flag contrary to their religious belief.
  • The compulsion on his children to salute the national flag violates his parental right to determine, in accordance with his religious belief, his children’s moral and religious upbringing.
  • by compelling all schoolchildren, regardless of religious persuasion, to say the words “Almighty God, in whose hands our future lies” in the recitation of the pledge the first respondent violates the fundamental right to freedom of religion of the schoolchildren who do not share the religious belief embodied in the words.

The applicant, without desire to show disrespect for the national flag and the country, interprets the Bible as commanding, at the risk of God’s displeasure, that his children must not go through the form of a pledge of allegiance that involves saluting a secular object such as a flag. The applicant does not reject the national flag. His case is that the use of the national flag as symbolism for the legitimate secular purpose does not have to take the form of a coerced salutation of the flag, which he says he genuinely believes is a form of worshipping of the flag

Issues: Given the nature of the dispute at hand and the tussle between religion and secularism, the 9-Judge Bench, headed by Luke Malaba, C.J., framed the following issues-

  • Whether the policy and the actions of compelling the applicant’s children, who hold a religious belief that saluting a flag is “worshipping a graven image” contrary to a fundamental doctrine of their faith, infringed their right to freedom of religion.
  • Whether the policy and the actions of the education authorities of compelling the applicant’s children to salute the national flag infringed the applicant’s parental right to determine the upbringing of his children according to his religious belief.
  • Whether the policy and the actions of the education authorities of compelling all schoolchildren, regardless of religious affiliation, to say the words “Almighty God, in whose hands our future lies” infringed the right to freedom of religion of children who do not belong to religions that embrace the belief in the existence of God or in the existence of a god at all.

Section 60 of the Constitution of Zimbabwe contains provisions vis-à-vis the Right to freedom of conscience, freedom of thought, opinion, religion or belief.

Important Observations by the Court

The Bench delved in-depth into various facets of secularism, patriotism and religious freedom. Some of the important areas upon which the Court focused were-

Regarding the interpretation of the Constitutional Provisions- Sections 60(1) and 60(3): It was observed that Section 60(1) of the Constitution is based on the universal principle that every person has inherent fundamental rights and freedoms by virtue of being human. Constitution recognises and embraces the fundamental principle that every person has a conscience which is an experiential and spiritual phenomenon that compels a person to commit himself or herself unreservedly to an ideal. Freedom of conscience must be interpreted broadly to reflect the true meaning of the concepts used to denote the area of its operation. State must adopt a position of neutrality in its relationship with individuals in respect of matters of religion. While referring to Supreme Court of India’s decision in Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615, the Bench noted that as long as a court of law finds that the person claiming constitutional protection genuinely holds the belief that the matters to which his or her belief relates are commanded by the fundamental doctrines, tenets or rules of his or her faith, the belief would fall within the ambit of Section 60(1) of the Constitution as a religious belief. Vis-à-vis, Parental Right, the Court observed that Section 60(3) of the Constitution should not be interpreted to mean that the parental right authorises one person to dominate or control the life of another to satisfy his or her own religious interests.

The compulsion suggests to the schoolchildren who hold polytheistic religious beliefs or non-theistic beliefs that their beliefs are inherently less religious than the theistic ones embraced by the pledge. At best, there is an unconscious bias against non-theistic religions and their beliefs in the adoption as part of the pledge a statement that has as its content acceptance in the existence of God and exaltation of His powers. Children are impressionable individuals and vulnerable to outside influences because of their age and level of maturity. The impression likely to be created in the children’s minds would be that for one to become the ideal person who lives according to the values and principles espoused by the pledge, one has to be a believer in the features of the monotheistic religions represented in the words “Almighty God, in whose hands our future lies”. The children may think that one may not embrace the values of patriotism and national identity without at the same time being a holder of the belief in the existence of God.

Regarding infringement and limitation on Fundamental Rights- The Bench observed that Section 86(3) of the Constitution makes provision for fundamental human rights which are non- derogable and right to freedom of religion is not one of them. The justification for limitation of fundamental human rights and freedoms is the principle that they must be reasonably exercised and with due regard for the rights and freedoms of other persons. Freedom of religion guaranteed under S. 60 has as its point of departure the view of a human being in the Constitution as a responsible personality, developing freely within the social community. It can be restricted by the Legislature by a law of general application with constitutional anchors and sufficient safeguards for the rule of law when community goods are endangered. The limitation of a right must be a result of a meticulous and extensive legislative process and such limits should be interpreted narrowly, thereby respecting the importance of the fundamental right or freedom sought to be protected and enforced. “The Executive cannot introduce measures which have a direct impact on fundamental rights secured by the Constitution without there being a law that authorises such action”. There must be a balance between respecting the religious freedom of the schoolchildren objecting to participation in the compulsory recitation of the pledge and the legitimate public interest in having the values of patriotism.

Preamble to the Constitution- Its role and connection to Fundamental Rights: The Court while deliberating upon the importance of the Preamble in a country’s Constitution referred to the 13 Judge Bench decision of the Indian Supreme Court in Kesavananda Bharti v. State of Kerala, (1973) 4 SCC 225, wherein the importance of Preamble as the embodiment of the great purposes and objectives underlying the provisions of the Constitution was observed.

It was noted by the 9 Judge Bench that in Zimbabwe, the Preamble to the current Constitution can best be characterised as ceremonial and is not a numbered section in the body of the Constitution. It is not regarded as an integral part of the law as it does not create rights and obligations. The law is independent of the Preamble. The current Preamble merely sets out the history behind the Constitution’s enactment, as well as the nation’s core principles and values.

Concluding Remarks: Concluding the discussion, the Bench stated that, “Patriotism is a heritage that every nation must pass on to its children if it has pride in itself as an independent and sovereign nation of people who share common values and aspirations enshrined in a constitution which defines its destiny”. However, they also observed that, compulsion, as employed in the pledge, is not a permissible means for achieving the objective of inculcating in schoolchildren feelings of patriotism. “There is a tension between negative and positive religious freedom. The tension cannot be neutralised by the elimination of the reference to the salutation of the national flag and the saying of the words “Almighty God, in whose hands our future lies” from the pledge. The elimination of these elements from the pledge would infringe the right to freedom of religion of those children and their parents or guardians who want the saluting of the national flag and the saying of the religious words in the course of the recitation of the pledge to be observed “. [Mathew Sogolani v. Minister of Primary and Secondary Education, Judgment No. CCZ 20/20, decided on 28-12-2020]


Sucheta Sarkar, Editorial Assistant has put this story together


Image Credits: ZWNEWS

Case BriefsHigh Courts

Allahabad High Court: Vivek Chaudhary, J., held that while giving notice under Section 5 of the Special Marriage Act, 1954, it shall be optional for the parties to the intended marriage to make a request in writing to the Marriage Officer to publish or NOT to publish a notice under Section 6 and follow the procedure of objections as prescribed under the Act.

Backdrop – Story of many Safias and Abhisheks

A Habeas Corpus petition was filed by one Safia Sultana through her husband Abhishek Kumar Pandey claiming that they got married as per Hindu rituals after Safia converted to Hindu religion and got a new name Simran. It was alleged that Safia’s father was not permitting them to live together. They claimed that both of them were adults, married of their free will, and desired to live together. They alleged that Safia’s custody by her father was illegal. However, before the Court, Safia’s father fairly accepted that since Safia married Abhishek with her choice and wants to live with him, he accepted her decision and wished both of them best for their future.

The issue of the petition concluded there. But the views expressed by the young couple, compelled the Court to look into the deeper issue. Safia and Abhishek expressed that they could have solemnized their marriage under the Special Marriage Act, 1954 but the Act requires a 30 days notice to be published and objections to be invited from the public at large. They expressed that any such notice would be an invasion in their privacy and would have definitely caused unnecessary social pressure/interference in their free choice with regard to their marriage. The personal laws do not impose any such condition of publication of notice, inviting and deciding objections before solemnizing any marriage. They further state that such a challenge is being faced by a large number of similarly situated persons who desire to build a life with a partner of their own choice.

It is further submitted that such young couples are not in a position to raise these issues before solemnizing their marriages as any litigation further attracts unnecessary attention which invades into their privacy and also causes unnecessary social pressure upon them with regard to their choice of a life partner.

Discussion & analysis

PROVISIONS

For the purpose of the present discussion, the Court referred to Section 4 (Conditions relating to solemnization of special marriages); Section 5 (Notice of intended marriage); Section 6 (Marriage notice book and publication); Section 7 (Objection to marriage); Section 8 (Procedure on receipt of objection); and Section 46 (Penalty for wrongful action of Marriage Officer).

QUESTION

After briefly visiting the history and development of law with regard to civil marriages in India, it was considered that the question before the Court was:

“Whether the social conditions and the law, as has progressed since passing of the Special Marriage Act, 1872 and thereafter the Special Marriage Act, 1954 till now, would in any manner impact the interpretation of Sections 5, 6 and 7 of the 1954 Act and whether with the change the said sections no more remain mandatory in nature.”

INTERPRETATION PARADOX

The Court noted that the Golden Rule of Interpretation is that so far as possible plain reading of the provisions should be accepted. However, at the same time, there is another Principle of Interpretation, that, an ongoing statute should be interpreted on the basis of present day’s changed conditions and not on old obsolete conditions. Reliance was placed on the Supreme Court decision in Satyawati Sharma v. Union of India, (2008) 5 SCC 287; and Kashmir Singh v. Union of India, (2008) 7 SCC 729. Reliance was also placed on Githa Hariharan v. RBI, (1999) 2 SCC 228; N. Kannadasan v. Ajoy Khose, (2009) 7 SCC 1; and K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1.

Thus, said the Court, it was required to consider the changes in the social and legal aspects, if any, that may impact the interpretation of the provisions of the 1954 Act.

CHANGES IN SOCIO-LEGAL ASPECTS

While discussing the changes in Socio-legal aspects, the Court referred to the 59th Law Commission Report; the 212th Law Commission Report; and the 242nd Law Commission Report and recommendation made by the Law Commission in these reports.

DEVELOPMENT OF LAW

While walking through the Development of Law on the present aspects, the Court relied on a number of Supreme Court decisions and concluded that since the case of Lata Singh v. State of U.P., (2006) 5 SCC 475, till the case of Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, the law has travelled a long distance defining fundamental rights of personal liberty and of privacy:

  • Once a person becomes a major he or she can marry whosoever he/she likes.” [Lata Singh Union of India, (2006) 5 SCC 475]
  • An inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage.” [Indian Woman Says Gang-Raped on Orders of Village Court, In re, (2014) 4 SCC 786]
  • Choice of woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognized in the Constitution under Article 19.” [Asha Ranjan v. State of Bihar, (2017) 4 SCC 786]
  • The consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock…..it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution.” [Shakti Vahini Union of India, (2018) 7 SCC 192]
  • “Neither the State nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters…. Social approval for intimate personal decisions is not the basis for recognising them.” [Shafin Jahan Asokan K.M., (2018) 16 SCC 368]
  • Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination……. privacy is one of the most important rights to be protected both against State and non-State actors and be recognized as a fundamental right.” [S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1]

Decision

In view of the changed social circumstances and progress in laws noted and proposed by the Law Commission as well as law declared by the aforesaid judgments of the Supreme Court, the High Court held that:

“It would be cruel and unethical to force the present generation living with its current needs and expectations to follow the customs and traditions adopted by a generation living nearly 150 years back for its social needs and circumstances, which violates fundamental rights recognized by the courts of the day.”

In view of the Court, the interpretation of Sections 6 and 7 read with Section 46 containing the procedure of publication of notice and inviting objections to the intended marriage in 1954 Act thus has to be such that would uphold the fundamental rights and not violate the same. It was held:

“In case the same on their simplistic reading are held mandatory, as per the law declared today, they would invade in the fundamental rights of liberty and privacy, including within its sphere freedom to choose for marriage without interference from state and non-state actors, of the persons concerned.”

It was further noted that even today, majority of marriages in India are performed under personal laws which do not require publication of any notice or calling for objections with regard to such a marriage. However, under Sections 6 and 7 of the 1954 Act, the persons intending to solemnize a marriage are required to give a notice and the Marriage Officer thereafter is made duty-bound to publish the notice for a period of 30 days and invite objections with regard to the same. Any person can object to the marriage on the ground that it violates any of the condition of Section 4 of the 1954 Act. None of the conditions under Section 4 is such, violation of which would impact rights of any person in any manner different than the same would in case of marriage under any personal law. Even if a marriage takes place in violation of any of the conditions of Section 4, legal consequences would follow and the courts can decide upon the same, including declare such a marriage to be void, as they do under the personal laws.

The Court was of the view that:

“There is no apparent reasonable purpose achieved by making the procedure to be more protective or obstructive under the 1954 Act, under which much less numbers of marriages are taking place, than procedure under the other personal laws, more particularly when this discrimination violates the fundamental rights of the class of persons adopting the 1954 Act for their marriage.”

However, held that Court, that in case, such individuals applying to solemnize their marriage under the 1954 Act themselves by their free choice desire that they would like to have more information about their counterparts, they can definitely opt for publication of notice under Section 6 and further procedure with regard to objections to be followed. Such publication of notice and further procedure would not be violative of their fundamental rights as they adopt the same of their free will. Therefore, the requirement of publication of notice under Section 6 and inviting/entertaining objections under Section 7 can only be read as directory in nature, to be given effect only on request of parties to the intended marriage and not otherwise.

Operative Portion of the Order

“Thus, this Court mandates that while giving notice under Section 5 of the Act of 1954 it shall be optional for the parties to the intended marriage to make a request in writing to the Marriage Officer to publish or not to publish a notice under Section 6 and follow the procedure of objections as prescribed under the Act of 1954. In case they do not make such a request for publication of notice in writing, while giving notice under Section 5 of the Act, the Marriage Officer shall not publish any such notice or entertain objections to the intended marriage and proceed with the solemnization of the marriage. It goes without saying that it shall be open for the Marriage Officer, while solemnizing any marriage under the Act of 1954, to verify the identification, age and valid consent of the parties or otherwise their competence to marry under the said Act. In case he has any doubt, it shall be open for him to ask for appropriate details/proof as per the facts of the case.”[Safiya Sultana v. State of U.P., 2021 SCC OnLine All 19, decided on 12-01-2021]

Case BriefsForeign Courts

Lahore High Court: While deliberating upon the writ petitions challenging the use and conduct of ‘virginity tests’ especially “Two-finger Test” and “Hymen Examination” in cases of rape and sexual abuse, Ayesha A. Malik, J., held that the virginity tests, carried out for the purposes of ascertaining the virginity of female rape or sexual abuse victim, is unscientific and has no medical basis, therefore it is of no forensic value in cases of sexual violence. It was further held that the virginity tests offend the personal dignity of the female victim and therefore is against the right to life and right to dignity enshrined in Articles 9 and 14 of the Constitution of Islamic Republic of Pakistan, 1973.

 Contentions: The petitions were brought before the Court by a group of diverse women, who have been working in the public sphere and one of the members of the National Assembly of Pakistan. They stated before the Court that the virginity tests are done upon a victim in order to ascertain whether they are sexually active. The petitioners put forth the following contentions –

  • There is no medical or scientific basis to continue with virginity testing; that it violates the fundamental rights of the female victims such that it denies the female victim her fundamental rights of dignity and privacy that she is guaranteed under the Constitution.
  • After the omission of Section 151 (4) of the Qanun-e-Shahadat Order, 1984 under the Criminal Law (Amendment) (Offences Relating to Rape) Act, 2016, tests are irrelevant for the charge of rape or sexual abuse. The virginity tests are neither necessary nor reliable for the purpose of investigation into the incident of rape or sexual abuse.
  • Even though the consent of the victim is obtained before conducting the test, however the victim is neither aware of the reasons for carrying out either of the tests nor is she informed properly, with sufficient sensitivity, as to what the examination entails.
  • The medico-legal examination reports rely on words such as “habituated to sex” or “not a virgin” which are irrelevant for the purposes of the incident under investigation and such derogatory language stigmatizes the victim, causing social and personal trauma. There is not enough training with reference to the female medical officers appointed, who carry out the virginity tests and fill in the medico-legal report.
  • Pakistan is a signatory to several international treaties like UDHR, ICCPR, Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 which denounce virginity testing. Moreover, Pakistan has also signed and ratified Convention Against Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW), which prohibits all forms of discrimination against women and declares the two-finger test as discriminatory such that it amounts to a denial of rights to female victims of rape on the basis of her gender.

The respondents (Federation of Pakistan and Province of Punjab) did not dispute the contentions of the Petitioners to the extent that the two-finger test should not be conducted. They stated that the matter is under consideration with the competent authority and guidelines are in the process to be framed. It was clarified that the two-finger test is not conducted unless it is deemed necessary and that in cases of minor girls, it is mandatory to inspect the hymen in detail to determine whether it is intact and if not then the nature of the injury.

Upon perusal of the petitioners’ contentions and statements provided by the respondents vis-à-vis the prevalent scenario and after detailed scrutiny of the relevant Guidelines/ SOPs; the Court observed the Guidelines for the Examination of Female Survivors/Victims of Sexual Abuse, 2020 still calls for a virginity test albeit by confusing the issue rather forbidding it (it allows a “per-vaginum examination” where required and per-vaginum examination is understood to mean the two finger test). It was noted that a bare reading of 2020 Guidelines makes it clear that the process of virginity testing through two fingers or hymen examination are standardized and form the basis of the medical officer’s opinion or the court’s opinion on the virtue and character of the victim. Regarding the use of phrases like “habituated to sex” and “not a virgin” in medico-legal reports the Court noted that, “Often enough the opinion of the medical officer is carried into the judgments of the court and language such ashabituated to sex”, “women of easy virtue”, “habitual to sexual intercourse”, “indulging in sexual activities” are used to describe the victim. The basis being that a woman habituated to sex is likely to have raised a false charge of rape or sexual abuse”.

The High Court also referred to several decisions rendered by the Indian courts, most notably the Supreme Court of India’s judgment in Lillu v. State of Haryana, (2013) 14 SCC 643, wherein it was held that- the two finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity; therefore, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent. Judgments delivered by Allahabad HC in Akhtar v. State of U.P., 2014 SCC OnLine All 8922 and Gujarat HC in State of Gujarat v. Rameshchandra Ramabhai Panchal, 2020 SCC OnLine Guj 114  were also referred to.

It was also noted that Pakistan has signed and ratified several relevant International Treaties which cast an obligation upon the Government to ensure that all necessary steps are taken to prevent carrying out virginity testing, as globally it is accepted that virginity testing does not establish the offence of rape or sexual abuse nor does past sexual conduct have any relevance in the medico-legal examination which aims to collect evidence on the charge of sexual violence.

Judge noted that, “Virginity testing is highly invasive, having no scientific or medical requirement, yet carried out in the name of medical protocols in sexual violence cases. It is a humiliating practice. If the victim, is found to not be a virgin, it cannot and does not suggest that she was not raped or sexually abused. What it does is place the victim on trial in place of the accused and shifts the focus on her virginity status. In this regard, the victim’s sexual behaviour is totally irrelevant as even the most promiscuous victim does not deserve to be raped, nor should the incident of sexual violence be decided on the basis of a virginity test. It is a blatant violation of the dignity of a woman. The conclusion drawn from these tests about a woman’s sexual history and character is a direct attack on her dignity and leads to adverse effects on the social and cultural standing of a victim”.

With the aforementioned observations, the Court made the following declarations-

  • Virginity tests are discriminatory against the female victim as they are carried out on the basis of their gender, therefore offends Article 25 of the Constitution, 1973.
  • To the extent that the 2020 Guidelines, SOPs and the 2015 Instructions mandate the virginity tests are declared to be illegal and against the Constitution and the Federation and Provincial Government should take necessary steps to ensure that virginity tests are not carried out in medico-legal examination of the victims of rape and sexual abuse.
  • The Provincial Government should devise appropriate medico-legal protocols and guidelines, along with standard operating procedures, in line with international practice that recognize and manage sensitively the care of victims of sexual violence.

[Sadaf Aziz v. Federation of Pakistan, WP No. 13537 of 2020, decided on 04-01-2021]


Sucheta Sarkar, Editorial Assistant has put this story together


Image Credits: DAWN

Case BriefsHigh Courts

Punjab and Haryana High Court: Alka Sarin, J., while addressing the present matter made an observation that:

The alleged illegality of the marriage of the petitioners having been solemnized without the consent of the first wife is not to be gone into in the present proceedings which are only regarding providing of protection to the petitioners.

In the instant case, petitioners were both Muslim. Petitioners solemnized their marriage as per Muslim rites and rituals and a translated copy of the Nikahnama has been attached.

Marriage was solemnized against the wishes of respondents 4 to 7 who are the relatives of petitioner 2.

Petitioners Counsel submitted that the petitioners apprehended danger to their life at the hands of respondent 4 to 7.

Counsel for the petitioners submitted that a Muslim boy or Muslim girl who has attained puberty is at liberty to marry anyone he or she likes and the guardian has no right to interfere.

Bench noted that the girl s aged more than 18 years in the instant case. In the decision of Yunus Khan v. State of Haryana,  [2014(3) RCR (Criminal) 518] it was observed that the marriage of a Muslim girl is governed by the personal law of Muslims. Article 195 from the book Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla has also been reproduced in the said decision which article reads as under :

“195. Capacity for marriage – (1) Every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage.

(2) Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians.

(3) A marriage of a Mahomedan who is sound mind and has attained puberty, is void, if it is brought about without his consent.
Explanation – Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years.”

Court held that both the petitioners in the instant were of marriageable age as envisaged by Muslim Law. The issue in hand was not the validity of the marriage but the fact that the petitioners were seeking protection of life and liberty as envisaged under Article 21 of the Constitution of India.

Bench held that:

The Court cannot shut its eyes to the fact that the apprehension of the petitioners needs to be addressed.

Merely because the petitioners have got married against the wishes of their family members they cannot possibly be deprived of the fundamental rights as envisaged in the Constitution of India.

In view of the above discussion, Court disposed of the petition with a direction to Superintendent of Police to take the necessary action as per law.[Jakar v. State of Haryana,  2020 SCC OnLine P&H 2266, decided on 16-12-2020]


Advocates who appeared before the Court:

Vishal Garg Narwana, Advocate, for the petitioners.

Naveen Singh Panwar, DAG, Haryana.

Vipul Aggarwal, Advocate for respondent 4

Sunita Gupta, Advocate for Warisa (first wife of petitioner 1)

OP. ED.SCC Journal Section Archives

— Indian Supreme Court in the process of transition — Position till early 1970’s and after — Concepts used to avoid change stated — Activist judges — Contribution of Justice Bhagwati — Some highlights of transformation of Indian jurisprudence at the instance of Justice Bhagwati in the judicial process — PIL is a major strategy in the area of legal aid to the poor — Greatest Contribution of Chief Justice Bhagwati — Decisions on Legal Aid — Observations of Justice Bhagwati in Hussainara Khatoon (1980) and Suk Das (1986) — Major thrusts gave to PIL by Justice Bhagwati briefly examined — Observations in Judges transfer case (1981) quoted — Letter petitions in PIL — Contribution of Justice Bhagwati in PIL is certainly enormous — Judicial employment and Human Rights with social justice — Inter-relation of Parts III and IV of the Constitution of India — Case laws referred to and discussed in this regard — Facets of Art. 21 — Case laws cited — Revolutionary interpretation to Art. 21 by Justice Bhagwati — Judicial Reforms and People’s participation — Lok Adalats — Contribution of Justice Bhagwati — Concluding note — Bhagwati era will find a special place for its signal contribution to human rights development and judicial creativity in the cause of social justice

The Indian Supreme Court is in the process of transition. Till early 1970s the Court with few honourable exceptions, acted as an instrument of status quo upholding the traditions of Anglo-Saxon jurisprudence and resisting radical innovations in the use of judicial power to promote social change under the Republican Constitution. The natural inclination of lawyers and Judges was to look for precedents in the “Mother Country” and to interpret a revolutionary document like the Constitution of India in the light of a socio-economic philosophy alien to our freedom movement and the aspirations of a liberated people. Concepts such as “Rule of Law”, “Judicial Restraint”, “Separation of Powers”, “Supremacy of Fundamental Rights over Directive Principles”, “Independence of Judiciary”, “Contempt of Court” and “Certainty in Law” were used conveniently to avoid change wherever possible, delay it whenever inevitable and dilute it as far as practicable. The resultant legal culture was not very different from those of pre-Independence days.

Read more..


Note: This article was first published in Supreme Court Cases Journal  (1987) 1 SCC J-1. It has been reproduced with the kind permission of Eastern Book Company.

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has directed that no State or Union Territory is required to paste posters outside the residence of COVID-19 positive persons, as of now. The State Governments and Union Territories can do so only when any direction is issued by the competent authority under the Disaster Management Act, 2005.

The direction came after a PIL was filed before the Court seeking an end to the practice of authorities affixing posters outside residences of Covid-19 positive persons who are under home isolation. The Petition further prayed that directions be issued to stop publishing the names of COVID-19 positive persons by the official of the Health Department in the States and Union Territories and also to stop freely circulating their names in welfare associations of colony and apartment complex which are serious violation of fundamental rights, right to privacy and right to live with dignity.

However, Solicitor General Tushar Mehta brought the Court’s attention to the guidelines dated 02.07.2020 and submitted that in the said guidelines which have been issued by the Government, Ministry of Health and Family Welfare for home isolation, there are no guidelines for pasting of posters outside the residence of COVID-19 positive persons. The letter issued by the Department of Family Welfare dated 19.11.2020 to Additional Chief Secretaries/Principal Secretaries/ Secretaries(Health) All States/UTs that the Government of India, Department of Health and Family Welfare, Ministry of Health and Family Welfare Guidelines also does not contain any instruction or guidance regarding affixing posters or other signage outside the residences of those found COVID-19 Positive.

“… neither any such direction has been issued by the Government of India nor it is obligatory to any State or Union Territory to paste the posters outside the residences of COVID-19 positive persons.”

[Kush Kalra v. Union of India, 2020 SCC OnLine SC 1017, decided on 09.12.2020]


*Justice Ashok Bhushan has penned this judgment

For petitioner: Advocate Chinmoy Pradip Sharma

For Respondent: Solicitor General Tushar Mehta

For NCT OF Delhi: Advocate Chirag M. Shroff

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has refused to interfere with Allahabad High Court’s decision quashing Dr. Kafeel Khan’s detention.

The Court has, however, made clear that the observations in the judgment will not determine the outcome of the prosecution and that the criminal cases will be decided on their own merits.

After the Citizenship Amendment Act received President of India’s assent on December 12, 2019, which triggered protests across several parts of the country, Dr. Kafeel Khan and Dr. Yogendra Yadav addressed a gathering of protesting students at Aligarh Muslim University, Aligarh. On December 13, 2019, a criminal case was lodged against Dr. Khan under Section 153-A of the Indian Penal Code at Police Station Civil Lines, Aligarh. The offences under Section 153B, 109, 505(2) Indian Penal Code were added subsequently, and Dr. Khan was arrested on January 29, 2020.

Despite the release order by the Chief Judicial Magistrate, Aligarh dated February 10, 2020, Dr. Khan was neither released nor was produced before the Magistrate. Hence, another release order was issued on February 13, 2020.

However, on February 13, 2020 itself the District Magistrate passed an order to detain Dr. Khan in – accordance with National Security Act, 1980 after a request was made for the same by the Deputy Inspector General of Police/Senior Superintendent of Police, Aligarh.

The Allahabad High Court, in its judgment dated 01.09.2020, calling the detention illegal, said,

“In absence of any material indicating that the detenue continued to act in a manner prejudicial to public order from 12.12.2019 up to 13.02.2020 or that he committed any such other or further act as may have had that effect, the preventive detention order cannot be sustained. In fact, the grounds of detention are silent as to public order at Aligarh being at risk of any prejudice in February, 2020 on account of the offending act attributed to the detenue of the date 12.12.2019. What remains is a mere apprehension expressed by the detaining authority without supporting material on which such apprehension may be founded.”

The High Court also noticed that the grounds for detention along with material were to be supplied to Dr. Khan in light of clause (5) of Article 22 of the Constitution of India enabling him to submit representation to the competent authorities at earliest. However, the material so given was a compact disk of the speech delivered by Dr. Kafeel Khan on December 12, 2019 at Bab-e-Syed gate of Aligarh Muslim University. No transcript of the speech was supplied to the detenue. The High Court hence observed,

“The non-supply of transcript would have been of no consequence, if a device would have been supplied to the detenue to play the compact disk. It is the position admitted that no such device was made available to the detenue.”

Further, noticing that the orders of extension were never served upon the detenue, the High Court concluded that neither detention of Dr. Kafeel Khan under National Security Act, 1980 nor extension of the detention are sustainable in the eye of law.

It is pertinent to note that Dr. Kafeel Khan was also arrested in September, 2017 after an unfortunate incident resulted into the deaths of 50 children 2017 due to unexpected shortage in supply of liquid oxygen at the B.R.D. Medical College, Gorakhpur in the intervening night of 10/11 August. Dr. Khan was released on bail in April, 2018 by the Allahabad High Court.

[State of Uttar Pradesh v. Nuzhat Perween,  2020 SCC OnLine SC 1033, order dated 17.12.2020]

For Petitioner: Solicitor General Tushar Mehta

For Respondent: Senior Advocate Indira Jaising

Case BriefsSupreme Court

Supreme Court: Refusing to interfere with the ongoing Farmers’ protest, the 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has said that the farmers’ protest should be allowed to continue without impediment and without any breach of peace either by the protesters or the police.

“Indeed the right to protest is part of a fundamental right and can as a matter of fact, be exercised subject to public order. There can certainly be no impediment in the exercise of such rights as long as it is non-violent and does not result in damage to the life and properties of other citizens and is in accordance with law.”

In order to bring about an effective solution to the present stalemate between the protesters and the Government of India, the Court suggested the constitution of a Committee comprising of independent and impartial persons including experts in the field of Agriculture but said that it would do so only after hearing all the necessary parties. The Court has, however, made clear that the pendency of the matters will not prevent the parties from resolving the issue amicably.

The Court is hearing the case wherein the residents of NCT of Delhi/Haryana, having a population of more than two million people, have claimed that the manner in which the protest is being carried on is seriously inhibiting the supply of essential goods to the city because of restrictions on the free movement of goods vehicles. According to the petitioners, this will result in a sharp increase in the prices of goods which would be difficult for people to bear in these times of Pandemic. They say,

“… no fundamental right is absolute and it would be necessary for the Court to determine the contours of the right of free speech and expression involved in the farmers’ protest and the extent to which this right can be exercised consistently with the rights of other citizens.”

The respondents, on the other hand, claim that the roads are blocked by the police in order to prevent the entries of the protesters/farmers to the city of Delhi.

Yesterday, the petitioners were allowed to serve copies of these petitions upon the impleaded farmers’ Associations and today the Court was to hear the farmers who are agitating at the Borders of National Capital Region of Delhi. However, none of the impleaded respondents-farmers’ associations have appeared today though the petitioners claim to have informed them over their respective mobile/whatsapp numbers.

The Court will now take up the matter after winter vacation. The parties, however, liberty to move the Vacation Bench if necessary. On the next date of hearing, the parties have been asked to submit suggestions about the constitution of the Committee.

The farmers’ protest is mainly directed against the three laws:

(1) Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020,

(2) Essential Commodities (Amendment) Act, 2020 and

(3) Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020.

Aforesaid laws are also under challenge before the Supreme Court.

[Rakesh Vaishnav v. Union of India, 2020 SCC OnLine SC 1032, order dated 17.12.2020]


For Petitioners: K.Parameshwar, AOR

For Union of India: Attorney General K.K. Venugopal

For Punjab: Senior Advocate P. Chidambaram

For U.P.: Advocate Garima Prashad

For Bharatiya Kisan Union: Advocate A.P. Singh.

OP. ED.SCC Journal Section Archives

 A TWO judge bench of the Supreme Court,1 in Union of India v. Paul Manickam,2 a case challenging the preventive detention of the respondent’s daughter as unlawful has observed as under:3

It is appropriate that the concerned High Court under whose jurisdiction the order of detention has been passed by the State Government or Union Territory should be approached first. In order to invoke jurisdiction under article 32 of the Constitution to approach this court directly, it has to be shown by the petitioner as to why the high court has not been approached, could not be approached or it is futile to approach the high court. Unless satisfactory reasons are indicated in this regard, filing of petition on such matters, directly under article 32 of the Constitution is to be discouraged.

This observation of the apex court that before a person complaining of violation of his fundamental rights approach the Supreme Court under article 32 should approach the high court first under article 226, raises serious questions as to the true scope and ambit of article 32.

In the instant case the respondent who is the father of the detenue who was detained under section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 for possessing a huge quantity of contraband articles, addressed a representation on her behalf to the President of India. He also filed a habeas corpus petition before the Madras High Court challenging the detention order. The court dismissed the writ petition but on his application for review it quashed the order of detention. Hence this appeal by the Union of India to the Supreme Court.

Thus, it was not the petitioner who approached the Supreme Court by way of a writ under article 32 for setting aside the order of detention. Instead it was the Union of India which approached the Supreme Court by way of appeal under article 136 of the Constitution by raising various contentions, inter alia, that:4

[R]enegades who disturb peace and tranquillity of citizens are like termites which corrode financial stability of the country with vicious designs file petitions full of falsehood and at times approach this court under article 32 even without approaching the jurisdictional High Court.

What made the Union of India to take this pea is not clear from the facts of the case since the petitioner had not approached the apex court directly. It was against this plea, the Supreme Court, while dismissing the appeal by the Union of India in the instant case expressed the above quoted view.

 To read the full text of the article, click here 


NOTE: This article was first published in the Journal of the Indian Law Institute 47 JILI (2005) 102.

* Associate Research Professor, Indian Law Institute, New Delhi.

1 Doraiswamy Raju and Arijit Passayat JJ.

2 (2003) 8 SCC 342 : AIR 2003 SC 4622.

3 Id. at 4630. (Emphasis added).

4 Id. at 4624.

OP. ED.SCC Journal Section Archives

I

The architects of the India Constitution perceived that, for the Republic to survive, the Constitution must be Supreme. They also realised that the supremacy of the Constitution depends upon an independent judiciary—one with power to resolve disputes between the States, between the State and the national governments, and, most importantly, between individuals and government. However, in recent years, the Indian Supreme Court has been subjected to much ill-informed and native criticism. “To distrust the judiciary,” Honore Balzac once said, “marks the beginning of the end of society.”1 My object here is not to defend the Supreme Court against these attacks, but to pay tribute to one of its members, Mr Justice V.R. Krishna Iyer, who retired recently, after a little over seven years of distinguished service on the Court. While aware of the storms that raged about the Court, he welcomed disinterested criticism which stirs in the Court a continual awareness of its accomplishments and failures. Justice Krishna Iyer, however, though of the Court as an “institution” and tried hard to reconcile divergent views where he believed their expression would injure the institutional character of the Court; he acted not simply to improve the Court’s image, but, rather, to give strength to the rule of law.

II

It has often been remarked that Indians are the most litigious people in that every great issue is transformed into a question of law. The Judge is exalted as Lawgiver and Prophet in the Temple of Justice. He must have the wisdom of Solomon, the moral vision of Isaiah, the analytic power of Socrates, the intellectual creativity of Aristotle, the humanity of Lincoln and Gandhi, and the impartiality of the Almighty. Measured by these expectations every judge is something of a disappointment. But Justice Krishna Iyer understood the nature of the challenge. A study of his over 300 published opinions and numerous extra-curricular writings2 reveals a picture which is truly unique; they attest to the eloquent constancy with which he has placed his imprimatur on the principles of individual liberty and political equality. Any socially conscious judge, especially in a developing country like India, needs to be resourceful, versatile, and experimental, in relating human problems to a complex background of modernity and tradition. Mr Justice Brandeis once said that a lawyer who has not studied economics and sociology is apt to become a public enemy. Mr Justice Cardozo went further. The law was always a jealous mistress; but nowadays, said Cardozo, she has become “insatiate in her demands. Not law alone, but almost every branch of human knowledge, has been brought within her ken, and so within the range of sacrifice exacted of her votaries. Those who would earn her best rewards must make their knowledge as deep as the science and as broad and universal as the culture of their day. She will not be satisfied with less”.3 Unusually well versed in this Cardozian Kamasutra, Justice Krishna Iyer’s experience—a former politician, legislator, administrator, one-time minister, judge of the High Court of Kerala, member of the Law Commission of India—seems to come vibrantly alive in his Supreme Court judgments.4

[Read more]


Note: This Article was first published in Supreme Court Cases (1981) 4 SCC J-38.It has been reproduced with the kind permission of Eastern Book Company.

* B.A., M.A., LL.B., LL.M. (Rajasthan); LL.M., S.J.D. (Harvard); Faculty of Law, University of New South Wales, Kensington (Sydney), N.S.W. 2033, Australia. EDITOR’S NOTE: A former editor of LAWASIA, Professor Sharma is currently spending his sabbatical at Harvard Law School and at the law firm of Hale and Dorr in Boston, Mass., U.S.A.

1 Quoted in O. KIRCHHEIMER, POLITICAL JUSTICE 175 (1961).

2 The number 300 is approximate and excludes Justice Krishna Iyer’s judgments delivered as a judge of the High Court of Kerala. His out-of-court pronouncements and writings have been equally prodigious. See, e.g., V. KRISHNA IYER, LAW AND THE PEOPLE: A COLLECTION OF ESSAYS (1972), V. KRISHNA IYER, LAW, FREEDOM AND CHANGE (1975); V. KRISHNA IYER, JURISPRUDENCE AND JURISCONSCIENCE A LA GANDHI (1976); V. KRISHNA IYER, LAW AND SOCIAL CHANGE: AN OVERVIEW (1978); V. KRISHNA IYER, Social Justice and the Handicapped Humans, 2 ACADEMY L. REV. 1 (1978); V. KRISHNA IYER, THE INTEGRAL YOGA OF PUBLIC LAW AND DEVELOPMENT IN THE CONTEXT OF INDIA (1979); V. KRISHNA IYER, OF LAW AND JUSTICE (1979); V. KRISHNA IYER, Corporate Responsibility and Social Justice, 15 CIVIL & MILITARY L.J. 263 (1979); V. KRISHNA IYER, JUSTICE AND BEYOND (1980); V. KRISHNA IYER, PERSPECTIVES IN CRIMINOLOGY, LAW AND SOCIAL CHANGE (1980); V. KRISHNA IYER, SOME HALF-HIDDEN ASPECTS OF INDIAN SOCIAL JUSTICE (1980).

3 Cardozo, Our Lady of the Common Law, 13 ST. JOHNS L. Rev. 231, 232 (1937), in B. CARDOZO, SELECTED WRITINGS OF BENJAMIN NATHAN CARDOZO 87, 88 (M. Hall Ed. 1947).

4 Unlike most of his colleagues who had spent their entire public life in the judiciary, Justice Krishna Iyer came to the Court after a long and distinguished career as a legislator and politician. And it was this background which influenced his judicial career the most. The years in the legislative branch brought with them a general restlessness with the traditional judicial approach to decision-making.

Case BriefsHigh Courts

Karnataka High Court: John Michael Cunha J., while allowing the present writ petition moved by a transgender against the declaration of her self identified gender in official documents, reiterated the observations made in National Legal Services Authority v. Union of India, (2014) 5 SCC 438 and clarified upon the applicability of Rules 6 and 7, Transgender Persons (Protection of Rights) Rules, 2020.

 Brief Facts

Facts of the case are enlisted objectively hereunder;

  1. That the petitioner claims to be a transgender; whose gender does not match with the gender assigned to her biologically by birth.
  2. That the birth certificate of the petitioner declares her as a male and names her as ‘Clafid Claudy Lobo’
  3. That at a very young age, the petitioner identified herself as a female and lately underwent a gender reassignment surgery on 26-07-2018, at Namaha Hospital, under the medical supervision of Dr Umang Kothari.
  4. That the petitioner thereafter changed her name from ‘Clafid Claudy Lobo’ to ‘Christina Lobo’ by executing an affidavit dated 31-10-2019.
  5. That the petitioner holds an AADHAAR card and a passport with the aforementioned name and gender female.
  6. That the respondent authorities have denied acknowledging the gender identity of the petitioner and further rejected the claim of changing the personal details over the university and pre-university certificates.
  7. That the petitioner has sought for a writ in the nature of mandamus directing respondents 2 and 3; the Department of Pre-University Education and the Karnataka Secondary Education Examination Board, Bengaluru to issue a revised certificate in addition to the setting aside of order passed by respondent 4; Central Board of Secondary Education, Chennai and issue revised CBSE mark sheet showing her name as ‘Christina Lobo’. Further, the petitioner prays to issue a writ of mandamus against respondent 6 and 7; Rajiv Gandhi University of Health Sciences and Father Muller Medical College, Mangalore to change her name and gender in the MBBS mark sheet and thereby grant revised educational records.

 Contentions

It was argued by the counsel for respondent 3, N.K. Ramesh, that the Transgender Persons (Protection of Rights) Act, 2019 has been promulgated by the Parliament on 05-12-2019 and as per the provisions of the said Act, a Transgender is required to make an application to the District Magistrate for issuance of a certificate of identity as a transgender person. Further, there is no provision in ‘Examination Bye-laws’ of the Board to effect change in gender and name of the students and therefore, the order passed by respondent 3 cannot be faulted with.

The counsel for the petitioner placing reliance on NALSA v. Union of India, (2014) 5 SCC 438, emphasized transgender person rights decide their self identified gender as recognized by the Supreme Court and the direction issued to the Central and State Governments granting legal recognition to the same, without fail. As per the facts of the present case, the petitioner has identified herself as a female and also undergone psychological evaluation/gender reassessment surgery. There seems no reason for denial to the petitioner’s claim as the legal position stands clear in the light of the aforementioned judgment. It was further submitted that under Article 21 of the Constitution, such denial shall be arbitrary and in violation of the Fundamental Rights enshrined under the Constitution.

 Observation

The Court, pursuant to its decision, cited the following cases;

  • National Legal Services Authority v. Union of India, (2014) 5 SCC 438, “The recognition of one’s gender identity lies at the heart of the fundamental right to dignity.Gender, as already indicated, constitutes the core of one’s sense of being as well as an integral part of a person’s identity. Legal recognition of gender identity is, therefore, part of right to dignity and freedom guaranteed under our Constitution.”
  • Anuj Garg v. Hotel Assn,  of  India, (2008) 3 SCC 1, “(…) Self- determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed  under Article 21 of the Constitution of ”

With respect to the legal recognition of third gender/transgender, the Court remarked;

  • The self-identified gender can be either male or female or third gender. Hijras are identified as persons of third gender and are not identified either as male or female. Gender identity, as already indicated, refers to a person’s internal sense of being male, female or a transgender, for example, Hijras do not identify as female because of their lack of female genitalia or lack of reproductive capability. This distinction makes them separate from both male and female genders and they consider themselves neither man nor woman, but a “third gender”. Hijras, therefore, belong to a distinct socio-religious and cultural group and have, therefore, to be considered as a ‘third gender’, apart from male and female.”
  • Moreover, the Court, answering contention of the respondent related to application for certificate of identity, cited, sub-rule (3) of the Transgender Persons(Protection of Rights) Rules, 2020 which provides for application for issue of a certificate of identity under Rules 6 and 7. It reads as under-

 (3) “Transgender persons who have officially recorded their change in gender, whether as male, female or transgender, prior to the coming into force of the Act shall not be required to submit an application for certificate of identity under these rules: Provided that such persons shall enjoy all rights and entitlements conferred on transgender persons under the Act”.

  •  Since the identity of the petitioner is officially recorded in the AADHAAR card issued by Unique Identification Authority of India (UIDAI) and the passport issued by the Central Government, in view of Rule 3 of Transgender Persons(Protection of Rights) Rules, 2020, the petitioner is not required to make an application for certificate of her identity.

Decision

While allowing the present writ petition, the Court reiterated the Constitutional safeguards accorded to the third gender and issued requisite order to the respondent authorities.[Christina Lobo v. State of Karnataka, 2020 SCC OnLine Kar 1634, decided on 1-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SK Kaul, Aniruddha Bose and Krishna Murari, JJ has, in the Shaheen Bagh protests matter, held that while there exists the right to peaceful protest against a legislation, public ways and public spaces cannot be occupied in such a manner and that too indefinitely.

“Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone. The present case was not even one of protests taking place in an undesignated area, but was a blockage of a public way which caused grave inconvenience to commuters. We cannot accept the plea of the applicants that an indeterminable number of people can assemble whenever they choose to protest.”

EVENTS LEADING TO THIS ORDER


  • The Citizenship (Amendment) Act, 2019 (CAA) was passed last year which seeks to grant citizenship to non-Muslim migrants belonging to Hindu, Sikh, Buddhist, Christian, Jain and Parsi communities who came to the country from Pakistan, Bangladesh and Afghanistan on or before December 31, 2014.
  • The passage of CAA led to nationwide protests calling the CAA and the National Register of Citizens discriminatory. A women led protest 24/7 sit-in protest was also initiated in Shaheen Bagh, Delhi.
  • The Shaheen Bagh protest resulted in the closure of the Kalindi Kunj Shaheen Bagh stretch, including the Okhla underpass from 15.12.2019. It was submitted that the public roads could not be permitted to be encroached upon in this manner and, thus, a direction be issued to clear the same.
  • When the law enforcement authorities were control the protests and traffic, the Supreme Court opted for an ‘out of box’ solution and appointed Senior Advocate Sanjay R. Hegde and mediator trainer Sadhana Ramachandran as interlocutors.
  • The interlocutors made appreciable effort and submitted a report on 24.02.2020 which highlighted that the nature of demands was very wide and that it did look difficult to find a middle path towards at least facilitating the opening of the blocked public way. The interlocutors did their best, but their efforts could not fructify into success, although the number of people at protest site had eventually diminished.
  • The second report suggested that
    • The views reflected in private conversations with the protestors were somewhat different from the public statements made to the media and to the protesting crowd in attendance.
    • While the women protestors had sat in protest inside the tent, there was a huge periphery comprising mainly of male protestors, volunteers and bystanders who all seemed to have a stake in the continuance of the blockade of the road.
    • It appeared that an absence of leadership guiding the protest and the presence of various groups of protesters had resulted in many influencers who were acting possibly at cross-purposes with each other.
    • Thus, the Shaheen Bagh protest perhaps no longer remained the sole and empowering voice of women, who also appeared to no longer have the ability to call off the protest themselves. There was also the possibility of the protestors not fully realising the ramifications of the pandemic, coupled with a general unwillingness to relocate to another site.
  • With the advent of COVID-19 Pandemic, greater wisdom prevailed over the protestors at the Shaheen Bagh site and the site was cleared. On this, the Court noticed

“Thus, really speaking, the reliefs in the present proceedings have worked themselves out.”

WHAT THE COURT SAID ON THE RIGHTS OF THE PROTESTERS


“India, as we know it today, traces its foundation back to when the seeds of protest during our freedom struggle were sown deep, to eventually flower into a democracy. What must be kept in mind, however, is that the erstwhile mode and manner of dissent against colonial rule cannot be equated with dissent in a self-ruled democracy.”

The Court noticed that the Constitutional scheme comes with the right to protest and express dissent, but with an obligation towards certain duties. Article 19, one of the cornerstones of the Constitution of India, confers upon its citizens two treasured rights, i.e.,

  1. the right to freedom of speech and expression under Article 19(1)(a)
  2. the right to assemble peacefully without arms under Article 19(1)(b).

These rights, in cohesion, enable every citizen to assemble peacefully and protest against the actions or inactions of the State. The same must be respected and encouraged by the State, for the strength of a democracy such as ours lies in the same. These rights are subject to reasonable restrictions, which, inter alia, pertain to the interests of the sovereignty and integrity of India and public order, and to the regulation by the concerned police authorities in this regard.

“Each fundamental right, be it of an individual or of a class, does not exist in isolation and has to be balanced with every other contrasting right. It was in this respect, that in this case, an attempt was made by us to reach a solution where the rights of protestors were to be balanced with that of commuters.”

Noticing that in this age of technology and the internet, social movements around the world have swiftly integrated digital connectivity into their toolkit; be it for organising, publicity or effective communication, the Court said that technology, however, in a near paradoxical manner, works to both empower digitally fuelled movements and at the same time, contributes to their apparent weaknesses.

“The ability to scale up quickly, for example, using digital infrastructure has empowered movements to embrace their often-leaderless aspirations and evade usual restrictions of censorship; however, the flip side to this is that social media channels are often fraught with danger and can lead to the creation of highly polarised environments, which often see parallel conversations running with no constructive outcome evident.”

The Court said that both these scenarios were witnessed in Shaheen Bagh, which started out as a protest against the Citizenship Amendment Act, gained momentum across cities to become a movement of solidarity for the women and their cause, but came with its fair share of chinks – as has been opined by the interlocutors and caused inconvenience of commuters.

WHAT THE COURT SAID ON THE RESPONSIBILITIES OF THE LAW ENFORCEMENT AUTHORITIES


“The courts adjudicate the legality of the actions and are not meant to give shoulder to the administration to fire their guns from.”

In what manner the administration should act is their responsibility and they should not hide behind the court orders or seek support therefrom for carrying out their administrative functions.

The Court noticed that in the present case, unfortunately, despite a lapse of a considerable period of time, there was neither any negotiations nor any action by the administration, thus warranting our intervention.  It concluded with the following words:

“We only hope that such a situation does not arise in the future and protests are subject to the legal position as enunciated above, with some sympathy and dialogue, but are not permitted to get out of hand.”

[Amit Sahni v. Commissioner of Police, 2020 SCC OnLine SC 808, decided on 07.10.2020]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Jayantha Jayasuriya, CJ and Murdu N.B. Fernando and S. Thurairaja, JJ., allowed an appeal which was filed being aggrieved by the order of the High Court in a matter of violation of fundamental rights alleging unlawful termination of employment.

Background:

The employee Applicant – Appellant – Appellant (Employee – Appellant) was recruited by Central Engineering Consultancy Bureau i.e. Respondent – Respondent – Respondent (Employer – Respondent) as a Civil Engineer Grade D1, in January 1986. The Employee – Appellant was suspended on a disciplinary issue on the 26th of August 2011, was found guilty upon the conclusion of the disciplinary inquiry and was terminated from employment on the 14th of October 2013. Being aggrieved with the termination of employment, the Employee – Appellant had filed a fundamental rights application in the Supreme Court against the Employer – Respondent alleging that the termination of his services was a breach of his fundamental rights enshrined in Article 12(1), 12(2) and 14(1) (g) of the Constitution. Subsequently the Employee – Appellant had filed an application against the Employer – Respondent in the Labour Tribunal of Colombo on the 17-03-2014 challenging the termination of his services. The Employer – Respondent filed its answer and raised the preliminary objection under Section 31 B (5) of the Industrial Disputes Act No.43 of 1950, that the Employee – Appellant could not maintain an application before the Labour Tribunal due to the fact that he had first filed a fundamental rights application before the Supreme Court. The preliminary objection was upheld by the Labour Tribunal and the Employee – Appellant’s application was dismissed. Being dissatisfied with the order the Employee – Appellant appealed to the High Court, it upheld the order of the Labour Tribunal and dismissed the appeal of the Employee – Appellant. Being aggrieved with the said Order of the High Court, the Employee – Appellant preferred an application for leave to appeal to the Supreme Court and leave to appeal was granted on the questions of law.

The Counsel for the Employer – Respondent, relying on Section 31B (5), submitted that the Employee – Appellant can challenge the termination of his services in several forums including the Labour Tribunal, District Court and Supreme Court, but he cannot seek legal remedies from multiple forums in respect of the same issue / dispute.

Issue:

The issue of law to be decided in this appeal was whether the provisions of section 31B (5) of the Industrial Disputes Act No. 43 of 1950, as amended, debar the Employee – Appellant from maintaining his application to the Labour Tribunal against the termination of his services by the Employer – Respondent claiming that the said termination of his services violated his fundamental rights guaranteed by Articles 12 (1), 12 (2) and 14 (1) (g) of the Constitution.

Decision:

The Court interpreted Part IV A of the Act which contains the provisions relating to Labour Tribunals, including section 31B (5). Part IVA was introduced by the Industrial Disputes (Amendment) Act No. 62 of 1957. Part IVA initially had four sections – i.e.: sections 31A, 31B, 31C and 31D. These sections have been subjected to a few amendments since 1957. Further, new sections 31DD, 31DDD [later repealed] and 31DDDD were added to Part IVA, by other Amendments to the Industrial Disputes Act and held that,

a workman who chooses not to avail himself of the procedure available under Part IVA of the Act in the first instance, but later realizes that he should resort to the provisions of Part IVA of the Act, should be penalized by debarring him from doing so unless he has received a determination from that other forum. I would add that debarring a workman from having access to a Labour Tribunal merely because he has, perhaps misguidedly, previously decided to refer his claim to another forum but has not received a determination from that forum, would go against the clear intention of the Legislature when it introduced Labour Tribunals in 1957.”

The Court while allowing the appeal relied on the Supreme Court judgment of Gamaethige v. Siriwardene, (1988 II CALR 62) where it was observed that exercise of the Supreme Court’s fundamental rights jurisdiction “cannot be equated to the prerogative writs”. This statement highlighted the even wider gulf between the nature of a fundamental rights application and an application to a Labour Tribunal. In view of these essential differences, it was said that the workman-appellant’s fundamental rights application and his application to the Labour Tribunal cover the same or similar ground and have the same or similar scope.

Secondly, it appeared that the Employee-Appellant’s fundamental rights application and his application to the Labour Tribunal sought similar substantive reliefs.

Thirdly, whether he has been subjected to unequal treatment or been denied the equal protection of the law or been made the victim of unreasonable or arbitrary or mala fide action on the part of the employer-respondent [which is said to be an organ or entity of the State]. The termination of the workman-appellant’s services is only a part of the issue before the Supreme Court and is looked at by this Court in the context of the questions described in the preceding sentence. On the other hand, the application to the Labour Tribunal will be decided solely on the core issue of whether the termination of services was just and equitable.

Fourthly, there was a significant disparity between the procedure followed by this Court in entertaining and determining the workman-appellant’s fundamental rights application and the procedure followed by a Labour Tribunal when determining the application made to it by the Employee-Appellant. The fundamental rights application will proceed to a full hearing only if the Employee-Appellant is first able to make out a prima facie case that his fundamental rights have been violated by the Employer-Respondent and is granted Leave to Proceed with the fundamental rights application.

The Court set aside the decision of the Labour Court and the High Court and directed the Labour Court to rehear the application.[W.K.P.I. Rodrigo v. Central Engineering Consultancy Bureau, SC Appeal No: 228 of 2017, decided on 02-10-2020]


Suchita Shukla, Editorial Assitant has put this story together