The Supreme Court of India in an unprecedented order in S.G. Vombatkere v. Union of India2 stayed the operation of the contentious Section 124-A3 of the Penal Code, 18604 (hereinafter “IPC”). The Supreme Court in a bunch of petitions challenging the constitutionality of Section 124-A IPC relating to the offence of sedition decided to keep in abeyance all pending trials, appeals and proceedings with respect to the charge framed under Section 124-A IPC. The Supreme Court also put an embargo on fresh registration of first information report (hereinafter “FIR”) by the police, failing which appropriate relief could be sought by the aggrieved by way of approaching the jurisdictional courts. The above directions passed by the Supreme Court shall continue till further orders are passed.
It is a case in point that the Supreme Court while issuing slew of directions left remarkable lacunae in the order. The author tries to point out in the paper that there are no specific directions issued by the Supreme Court with respect to the accused persons already incarcerated in prison charged under Section 124-A IPC, whose trial is pending before a competent court. The author would endeavour to demonstrate that failure to issue directions in the impugned order pertaining to bail may impede a prisoner's right to life and liberty on irrational grounds.
The first section of the paper summarises the background leading to the impugned order. The second section examines the lacunae in the order by the Court. The author concludes by proposing solutions to remove ambiguity inherent in the order. It is pertinent to state at the outset that the scope of the article is restricted to pointing out glaring lacunae in the impugned order and does not touch upon the discourse on sedition.
Background leading to the Supreme Court's fallacious order in S.G. Vombatkere
The original IPC, 1860 did not have an express provision to punish seditious speech or libel. Section 124-A was later engrafted in IPC in 1870.
Kedar Nath Singh v. State of Bihar5 was the first post-independence case in which the constitutionality of Section 124-A IPC was challenged. The court read down in Section 124-A that “only those expressions that either intend to or have the tendency of causing violence are punishable”. However, the continued unscrupulous use of Section 124-A brought to the fore the misuse of the sedition law in the political landscape. It compelled the Supreme Court in Common Cause v. Union of India6 to issue a direction to all the authorities dealing with the offences under Section 124-A IPC to be guided by the principles laid down by the Constitutional Bench in Kedar Nath Singh v. State of Bihar7.
The Allahabad High Court in Inayat Altaf Shekh v. State of U.P.8 sweepingly expressed that “the unity of India is not made of bamboo reeds which will bend to the passing winds of empty slogans”. The order of Allahabad High Court aptly demonstrates the misuse of sedition law on trivial issues such as sloganeering between students in an India-Pakistan cricket match.
Petitions challenging the constitutionality of Section 124 IPC were filed successively in the Supreme Court. The Supreme Court constituting N.V. Ramana, C.J., Surya Kant, J. and Hima Kohli, J. heard the pleas and stayed the operation of Section 124-A IPC until further orders.
Analysis of the order
The Government of India is fully cognizant of unintended use of sedition law. It has decided to re-examine and reconsider the provision of Section 124-A IPC which can only be done before competent forum. The Attorney General had also, on an earlier date of hearing, given some instances of glaring misuse of this provision, like in the case of recital of the Hanuman Chalisa.
In para 5 of the order, the Supreme Court prima facie agreed with the stand of Union of India that the rigours of Section 124-A IPC are not in tune with the current social milieu and was intended for a time when this country was under the colonial regime. It also suggested that the Union of India may reconsider the aforesaid provision of law.
The Supreme Court, further in para 7 stayed the operation of Section 124-A IPC till the re-examination of the section is complete and passed the following orders in the interest of justice:
(b) State and Central Governments will refrain from registering any FIR, continuing any investigation, or taking any coercive measures by invoking Section 124-A IPC while the aforesaid provision of law is under consideration.
(c) No fresh case shall be registered under Section 124-A. If any fresh case is registered against any individual person under Section 124-A, he may approach the court concerned for appropriate relief. The courts are requested to examine the relief sought in light of the order of this Court in the present case.
(d) All pending trials, appeals and proceedings with respect to the charge framed under Section 124-A IPC be kept in abeyance. Adjudication with respect to other sections, if any, could proceed if the courts are of the opinion that no prejudice would be caused to the accused.
(f) The above directions may continue till further orders are passed.
Direction (c) does not pose any problem since it specifically states that no fresh FIR shall be registered by the police. In an event where a fresh FIR is registered by the police, the aggrieved person may approach the High Court under Section 4829 of the Criminal Procedure Code, 1973 (hereinafter “CrPC”) for quashing the FIR or the Magistrate before whom that person may be produced may release the person booked under Section 124-A on bail and to not take cognizance of the matter any further.
However, direction (d) is problematic since it grants stay on pending trials, appeals and proceedings with respect to the charge framed under Section 124-A without deciding the corollary issues such as grant of bail to the person already incarcerated in prison under Section 124-A IPC.
For example, an FIR was lodged in 2021 against Z under Section 124-A IPC. The trial court took cognizance and trial started against Z. The court remanded Mr Z to judicial custody after the commencement of the trial under Section 30910 CrPC. The Supreme Court later stayed all the pending trials under Section 124-A IPC. What will be the effect of stay on the liberty of Z who is incarcerated in the prison during the pendency of stay order of the Supreme Court? Can he seek bail as a matter of right on the ground that all pending trials under Section 124-A IPC have been stayed by the Supreme Court or will he remain incarcerated in prison during the embargo put by the Supreme Court, both of which substantially affects the right to life and liberty of the prisoner? This issue failed to find any place in the impugned order of the Supreme Court. The court has not specifically issued any directions for the grant of bail to persons already in prison whose trial appeal is still pending in the court of law.
Another problematic proposition is for example, an accused person was acquitted by the trial court under Section 124-A IPC. The State preferred an appeal under Section 37811 CrPC12 against the acquittal order of trial court. The High Court under Section 390 CrPC13 may commit the accused person to prison pending the disposal of the appeal. Let us say, Mr Z was committed to prison by the High Court before the stay on appeal was granted by the Supreme Court in the impugned order. What will be the effect on his liberty? Can he approach the High Court for grant of bail, or will he be incarcerated in prison during the stay order as the High Court cannot hear the appeal in light of direction (d) of the impugned order?
The invidious problem is that the courts may refuse to grant bail to the incarcerated prisoners on the ground that the Supreme Court has not issued any specific directions to release an accused on bail pending the adjudication of constitutionality of sedition law by the Supreme Court, which would affect the right of the accused person of speedy justice guaranteed by Article 2114 of the Constitution.15
The effect of stay order of the Supreme Court is that the pending cases under Section 124-A will be delayed and the effect of it is to release an accused person on bail which can be taken to be embedded in the right of speedy trial, may, in some cases be the demand of Article 21 as held by Constitutional Bench of this Court in A.R. Antulay v. R.S. Nayak.16
The author argues that an accused person's incarcerated years in prison cannot be restored if the Supreme Court decides the sedition law to be constitutional ultimately. The pending trial, from thereon will proceed, but the incarceration in prison between the stay and revocation of stay order will prejudice the accused, if he is acquitted in any case later on, under the charged section.
The Rajasthan High Court in Aman Chopra v. State of Rajasthan17 quickly followed the suit and ordered the police to not investigate the matter for allegations covered by Section 124-A IPC on the same day the Supreme Court stayed the operation of Section 124-A IPC.
The author argues that the accused person may seek bail on the ground of “change in circumstances” under Section 439 CrPC.18 Another recourse could be had to Section 482 CrPC as there is no specific section in the CrPC which deals with situation wherein the Supreme Court has stayed all the proceedings under a particular section in general, and the proceedings has not been provided. In such cases, the High Court can use its inherent power to grant relief to the incarcerated prisoners while the stay order is in force.
The problem of conflicting opinions could also be resolved by the Supreme Court by filling the gap in the order by issuing a sweeping order for grant of bail to the accused persons incarcerated in prison, pending the adjudication on constitutionality of sedition law or till the re-examination of it is complete, which would uphold the cherished right of life and liberty of the prisoners.
† BA LLB (Hons.) National Law University, Odisha, Law Clerk-cum-Research Assistant, Supreme Court of India. Author can be reached at <firstname.lastname@example.org>.
Allahabad High Court: Dinesh Kumar Singh, J. rejected the bail application of former UP MLA Mukhtar Ansari who was arrested under Sections 419, 420, 467, 468, 471, 120-B, 177 and 506 Penal Code, 1860 and Section 7 of Criminal Law Amendment Act, 1932. Bail application of the accused-applicant was rejected by the Special Judge (MP/MLA)/Additional District Judge earlier on 13-12-2021.
FIR against accused-applicant revealed that an ambulance was registered in the Road Transport Office, Barabanki on 21-12-2013 in the name of Dr. Alka Rai in lieu of forged documents. During the course of investigation name of the accused-applicant figured, and it was found that the real beneficiary and user of the said vehicle was the present accused-applicant and he got the said vehicle purchased in the name of Dr. Alka Rai by pressurizing her and the payment was allegedly made by him.
State submitted that the accused-applicant is a known Mafia, Don and Gangster. He has been elected five times for the Legislative Assembly of the Uttar Pradesh from Mau Constituency and three times while he was in jail. Criminal history of the accused-applicant was also submitted in detail. It was alleged that the aforesaid vehicle was recovered from Mohali, Punjab, which was being used by the accused-applicant and his henchmen for going to the court from jail. His henchmen would travel in the said ambulance armed with sophisticated weapons to escort him.
The Court remarked that ‘It is irony and tragedy of the Indian republic and biggest scar on Indian democracy that criminals like the present accused-applicant are the law-makers.‘
It was noted that Dr. Alka Rai, later in her statement admitted that under pressure and fear of the present accused-applicant, she had signed on some papers brought by his men and her signatures were taken on the blank letter pad of the hospital along with seal etc. Statements of other co-accused corroborated the abovementioned allegations.
The Court reiterated the Supreme Court ruling in Harjit Singh v. Inderpreet Singh, 2021 SCC Online SC 633 wherein the Court had cancelled the bail granted to the accused by the High Court considering the criminal antecedents of the accused. Further the Court relied on Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497 where the Supreme Court held that while considering a bail application by the Court, the due consideration, inter alia, to be given to the criminal antecedents of the accused.
The Court rejected the bail application keeping in mind the long criminal history of the accused-applicant of most heinous offences and facts of the case. The Court did not find any ground to enlarge the accused-applicant on bail.
“The accused-applicant commands un-parallel fear in the minds and hearts of the people that no one dares to challenge him and his men and his politics. If the accused-applicant is enlarged on bail, the apprehension of the prosecution that he would tamper with the evidence and influence the witnesses, cannot be ruled out.”
[Mukhtar Ansari v. State of U.P., 2022 SCC OnLine All 491, decided on 19-07-2022]
Advocates who appeared in this case :
Sri Arun Sinha, counsel for the applicant and Sri V.K. Shahi, Additional Advocate General assisted by Sri Anurag Varma, A.G.A.
*Suchita Shukla, Editorial Assistant has reported this brief.
Tis Hazari Court, Delhi: While deciding a bail application, Kamini Lau, J. granted anticipatory in a case where the complainant-girl was a major and was held to be in a consensual relationship and thus, consent forms part of the subject matter in the said case. The Court granted bail since the accused joined the investigations and therefore, his custodial interrogation was not warranted.The applicant/accused got into a relationship with the prosecutrix/complainant after getting acquainted at work. The applicant had also introduced the complainant to his parents, and they approved of her. Subsequently, since March 2021, they started developing sexual relations on various occasions at different places like his residence, office and different hotels. The complainant alleged that these relations were non-consensual, and she was coerced based on the false promise of marriageby the applicant. The applicant contended that due to professional and personal issues he had been unable to marry the complainant, but she was pressurizing him to marry her. However, the complainant contended that after their last encounter on 11-06-2022, the applicant started ignoring her and avoided all communication with her. Pursuant to this,, the complainant filed a case against the applicant under Sections 354-D and 376 Penal Code, 1860 (‘IPC’). The applicant filed the instant anticipatory bail application under Section 438 Criminal Procedure Code (‘CrPC’)
The Court vide order dated 12-07-2022 granted interim protection to the applicant/accused and directed them to file a detailed report at the next hearing. Thus, a detailed report was filed by the Investigating officer who admitted that the applicant/accused Rahul Sharma joined investigations on 13-07-2022.
The Court observed that there is rarely any cogent or tangible proof to establish/ prove the existence of a criminal intention which has to be gathered, deciphered or inferred from circumstances.
Placing reliance on Uday v. State of Karnataka (2003) 4 SCC 46, and Jayanti Rani Panda v. State 1983 SCC OnLine Cal 98, the Courtobserved that “it is evident that there is no straitjacket formula which can be evolved for determining whether the consent was given under a misconception of fact or not and it has to be deciphered from the facts and circumstances of each case.”
The court concluded to note that, according to the applicant, he was ready and willing to marry the complainant, but it was the family of the complainant who had an issue with an inter-caste marriage. Additionally, the applicant joined the investigation and therefore, his custodial interrogation is not required , thus, the court granted anticipatory bail to the applicant on a bail bond of Rs. 1 lakh subject to the conditions as mentioned in the order.
[Rahul Sharma v. State, 2022 SCC OnLine Dis Crt (Del) 27, decided on 19-07-2022]
Advocates who appeared in this case :
Mr Pankaj Bhatia, Advocate, for the State;
Mr Kapil Madan, Mr Gurmukh Singh Arora and Mr Saurabh Gauba, Advocates, for the Applicant/Accused;
Complainant in person with Ms Sudershna Chakraborty Advocate from Delhi Commission, for the Women.
Counsel for the applicant submitted that this is a case of love affair. Even as per the prosecution story so narrated in the F.I.R. she had gone to Ludhiyana with the present applicant willingly where the present applicant established physical relation on the promise of marriage. Attention was drawn towards the statement of prosecutrix recorded under section 161 and 164 Criminal Procedure Code, 1973 wherein she had not leveled any allegation against the present applicant. She did not support the prosecution version rather submitted that she was willingly living with the present applicant. Their relation were consensual. They got married without informing their family members. She subsequently conceived and was blessed with a male child. It was further submitted that presently the prosecutrix was living with the family members of the applicant and she does not want to go to the place of her parents.
However, State Counsel opposed the bail application on the point that since the age of the present applicant at the time of incident was below 18 years, to be more precise, around 15 years and one month on the basis of statement of the Principal of the institution where the prosecutrix was studying. Therefore, such consent of prosecutrix is meaningless in the eyes of law and the present applicant should not be released on bail.
The Court was pained to observe the fact that a children of tender age who have not attained the age of majority are indulging in such type of relations which may not be said to be a proper relation. When a certain age has been prescribed by the statute to get married and live accordingly, any such act which has been committed prior to such age cannot be approved. The age of 15-16 years or below 18 years is not the age where any young couple should enter into the institution of marriage.
The Court however opined that in the present circumstances wherein the present applicant and prosecutrix have not only got married but they are having infant son from said wedlock and it is the responsibility of the couple to look after his child properly, it would be only just to release the applicant from jail otherwise there might be a possibility that his minor wife with his son might not be taken care of properly by his parents.
The Court allowed the bail application with certain directions considering the larger interest of the child and mother who should have been taken care of by the present applicant.
[Suraj v. State of U.P., 2022 SCC OnLine All 485, decided on 27-05-2022]
Advocates who appeared in this case :
Ram Pukar Singh, Advocate, Counsel for the Applicant;
Dr Gyan Singh ,Shiv Charitra Tiwari, Advocates, Counsel for the Opposite Party.
*Suchita Shukla, Editorial Assistant has reported this brief.
Perjury is a crime that blurs the lines between substantive and procedural law, posing a challenge to the judicial administration system. The term “perjury” is nowhere defined either in the Penal Code, 1860 (hereinafter referred to as “IPC”), or for that matter in the Criminal Procedure Code (CrPC). However, the Supreme Court in Kishorbhai Gandubhai Pethani v. State of Gujarat1 has succinctly elaborated the meaning of perjury in para 9, which reads as under:
9. Perjury is an obstruction of justice. Deliberately making false statements which are material to the case, and that too under oath, amounts to crime of perjury. Thus, perjury has always to be seen as a cause of concern for the judicial system. It strikes at the root of the system itself and disturbs the accuracy of the findings recorded by the court. Therefore, any person found guilty of causing perjury, has to be dealt with seriously as it is necessary for the working of the court as well as for the benefit of the public at large.
The genesis of the offence of perjury finds mention in Sections 191 and 192 IPC that defines “giving of false evidence” and “ fabricating false evidence” respectively. It should be noted that the punishment for these offences finds mention in the charging section i.e. 193 of the Penal Code, 1860. Further, the aggravated form of these offences stands committed if giving or fabricating false evidence was done with in intent to procure conviction of a capital offence (Section 194); if with an intent to procure conviction or are committed if the intent to procure conviction for an offence punishable with imprisonment for life.
Rule of audi alteram and its application at a pre-cognizance stage
It is a settled law that the accused does not have a right of being heard at stage prior to registration of FIR or a stage prior to taking of the cognizance. Whether the proposed accused can be heard at a stage prior to registration of FIR came for consideration before the Supreme Court in Anju Chaudhary v. State of U.P.2, wherein it was observed as under:
31. … Where the officer in charge of a police station is informed of a heinous or cognizable offence, it will completely destroy the purpose of proper and fair investigation if the suspect is required to be granted a hearing at that stage and is not subjected to custody in accordance with law. There would be predominant possibility of a suspect escaping the process of law. The entire scheme of the Code unambiguously supports the theory of exclusion of audi alteram partem pre-registration of an FIR. Upon registration of an FIR, a person is entitled to take recourse to the various provisions of bail and anticipatory bail to claim his liberty in accordance with law. It cannot be said to be a violation of the principles of natural justice for two different reasons: firstly, the Code does not provide for any such right at that stage, secondly, the absence of such a provision clearly demonstrates the legislative intent to the contrary and thus necessarily implies exclusion of hearing at that stage. This Court in Union of India v. W.N. Chadha3 clearly spelled out this principle in para 98 of the judgment that reads as under: (SCC p. 293)
98. If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd and self-defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary.
Procedure to initiate perjury proceedings
Section 195 CrPC provides a bar that states that no court will take cognizance of the offences under Sections 193-196 (perjury and its aggravated form) except on the complaint in writing by such court or by an officer authorised by such court. A bare reading of the section would reveal that for the offences of perjury, it would be the court that will be complainant as these offences are against the public justice.
Section 340 CrPC further enumerates the procedure to be followed in respect of the offences mentioned under Section 195 CrPC provides for a bar of taking cognizance of the offences inter alia mentioned under Sections 193–196 IPC. If the court is of the opinion that it is expedient in the interest of justice that an inquiry may be conducted in respect of the offences as mentioned under Section 195 may order an inquiry and upon conclusion of such inquiry record a finding to this effect and make a complaint in writing. The Supreme Court in Surjit Singh v. Balbir Singh4 while explaining the scope of the inquiry under Section 340 CrPC observed as under:
“Public justice demands an absolute bar of private prosecution and that power be given to the court to lay complaints under Section 340 of the Code as per the procedure prescribed therein. The object thereby is to protect persons from needless harassment by the prosecution for private vendetta; to preserve the purity of the judicial process and unsullied administration of justice; to prevent the parties from the temptation to pre-empt proceedings pending in a court and to pressure and desist parties from proceeding with the case. The bar of Section 195 is to take cognizance of the offences covered thereunder. The object thereby is to preserve the purity of the administration of justice and to allow the parties to adduce evidence in proof of certain documents without being compelled or intimidated to proceed with the judicial process. In this case, the original agreement appears to have been filed in the civil court on 9-2-1984 long after cognizance was taken by the Magistrate.”
Whether the proposed accused claim the right of being heard at the stage of inquiry under Section 340 CrPC
It is often claimed on behalf of a person against whom court may initiating the proceedings in terms of Sections 195(1)(b)/340 CrPC, that such the accused must be afforded an opportunity of hearing before any complaint is made to the Magistrate in terms of the said provision(s). The said question fell for consideration before the Supreme Court in Pritish v. State of Maharashtra5, wherein it was observed as under:
“Reading of the sub-section makes it clear that the hub of this provision is formation of an opinion by the court. It is important to notice that even when the court forms such an opinion it is not mandatory that the court should make a complaint. The purpose of preliminary inquiry, even if the court opts to conduct it, is only to decide whether it is expedient in the interest of justice to inquire into the offence. The Supreme Court has ruled that there is no requirement for a court to provide an opportunity of hearing to the persons against whom it might file a complaint before the Magistrate for initiating prosecution proceedings. The court at that stage is not deciding the guilt or innocence of the party against whom proceedings are to be taken, but whether it is expedient in the interest of justice to hold an inquiry.”
Thus, the Supreme Court after examining the legal provisions came to a conclusion that a prospective accused does not have any right of being heard at the stage of inquiry. The said ratio is also in sync with other previous judgments that says that the accused does not have any right of being heard at a pre-cognizance stage.
The Supreme Court in Sharad Pawar v. Jagmohan Dalmiya6 however departed from the settled legal position as held in Pritish7 and observed that the proposed accused must be given an opportunity of being heard in the inquiry under Section 340 CrPC.
The said issue once again came for consideration in State of Punjab v. Jasbir Singh8 wherein the Court noted the conflicting decision in Sharad Pawar9 and Pritish10 case and referred the matter to a larger Bench for deciding the said issue.
In the backdrop of the settled legal position as held in Anju Choudhary11 says that the accused has no right of being heard at a pre-cognizance stage that has stood the test of time. It can safely be concluded that departure from the ratio of Pritish12 in Sharad Pawar13 was not legally tenable and in the humble opinion of the author, the larger Bench is likely to affirm the ratio of Pritish14 says that the proposed accused does not have any right of being heard at the stage of inquiry under Section 340 CrPC.
† Kapil Madan, Partner, KMA Attorneys.
†† Gurmukh Singh Arora, Senior Associate, KMA Attorneys.
*The author would like to acknowledge the work of Vedika Kakar and Aeshita Marwah
Introduction and Issues Crucial to the Decision of the Court
Domestic violence has been a deep-rooted evil in India wherein weak, vulnerable and innocent women suffer at the hands of men. According to the reliable report of India, the National Crime Records Bureau (NCRB), 2019 it has been recorded that the estimate goes to somewhat around 30.9% of the cases of all 4.05 lakh cases are registered under Penal Code, 18602 and Section 498-A3.4 This date showcases the prevalence of the domestic violence in India even after stringent laws and Act in place for the safety of women and their children.
This comment elaborates the righteousness of the landmark judgment of Satish Chander Ahuja v. Sneha Ahuja,5 which gave a clear understanding of the rights of women in shared household. Crime against women and children has been at a constant surge in India and hence the Court elaborated which ultimately broadened the meaning of “shared household” as per Section 2(s)6 of the Protection of Women from Domestic Violence Act, 2005 (“Act of 2005”). Earlier Indian women could only go to the civil courts to avail decree of divorce or could go to the criminal courts under Section 498-A IPC hence, till the year 2005 the remedies for women were limited wherein no emergency relief could be sought by the victim, after the Act of 2005 the scope of remedies for women have increased hence, making the 2005 Act a saving grace for the victims who sometimes suffer as a compulsion and sometimes by the choice of silence in India.
The Court in the present matter dealt with various crucial issues for securing justice for women and their children when they have been subjected to mental and emotional cruelty at the hands of their husband and in-laws. The issues were crucial to understand the definition of “shared household” under Section 2(s) of the Act of 2005 including the interpretation of the earlier judgment of this Court in S.R. Batra v. Taruna Batra7, and various other questions that would further clear the ambiguity in the interpretation of the Act of 2005 and its earlier application in the judgment by the trial court. These issues were drafted by the Court after prudent hearing of the case and the landmark judgment was delivered on the basis of these issues. The brutality and injustice suffered by women in India will only be curbed by the constant involvement of the judiciary in delivering justice.
Brief facts of the case and lower court decisions
In the present matter, the son of Satish Chander Ahuja (hereinafter “R” or “respondent”) married Sneha Ahuja in 1995 and after the said marriage the couple started residing in the first floor of the residence owned by Satish Chander Ahuja. In around 2014 the couple started to have differences and after that the husband filed a divorce petition under Sections 13(1)(i-a) and (iii)8 of the Hindu Marriage Act, 19559.
Chief Metropolitan Magistrate
Further, the wife, Sneha Ahuja filed an application suggesting trauma under Section 12 of the Act of 2005 impleading the husband as Respondent 1, her father-in-law Satish Chander Ahuja as Respondent 2 and mother-in-law as Respondent 3. In the said application, Sneha Ahuja alleged that she has suffered severe mental and emotional trauma by the respondents.
In regard to the said application the Chief Metropolitan Magistrate passed an interim order that the children or the wife Sneha Ahuja will not be disposed of the said shared household property nor should the respondents alienate such property.
Aggrieved by the interim order passed by the Chief Metropolitan Magistrate, the appellant filed a suit for permanent injunction impleading Sneha Ahuja as the sole defendant. Herein, the appellant i.e. Satish Chander Ahuja alleged that he and his wife has been a victim of domestic violence whilst suffering from various heart ailments, hypertension at the age of 76 and hence wants to live peacefully in his self-acquired residence. It was further stated that Sneha Ahuja filed the above domestic violence application to counterblast the divorce petition filed by the husband “R”.
It consequently was proved by the appellant that the residence in the present matter is his self-acquired property by filing required documents under Order 11 Rule 13 CPC10. After duly hearing and recording the present documents the trial court held that the plaintiff is decreed for relief of permanent injunction as prayed for and further asked Sneha Ahuja to vacate the premises of Satish Chander Ahuja within 15 days.
Delhi High Court
Aggrieved by the above judgment Sneha Ahuja filed regular first appeal in the Delhi High Court. The Delhi High Court held11 that the trial court erroneously passed the decree based only on the fact that whether the property in question was a “self-acquired” or “shared household” and gave no regard to the fact that the domestic violence case was still pending adjudication and determination by the court. Aggrieved by the judgment of Delhi High Court the present appellant, Satish Chander Ahuja filed an appeal in the Supreme Court of India.
Supreme Court: A landmark judgment
The Supreme Court whilst pronouncing the judgment12 gave regard to the objectives of the Act of 2005 which is to safeguard the rights of the aggrieved women of India.
Firstly, the Court deciphered the terms “means” and “includes” as mentioned in the definition of “shared household” under Section 2(s) of the Act of 2005. The Court while relying on Bharat Coop. Bank (Mumbai) Ltd. v. Coop. Bank Employees Union13, Pioneer Urban Land & Infrastructure Ltd. v. Union of India14, South Gujarat Roofing Tiles Manufacturers Assn. v. State of Gujarat15 and Karnataka Power Transmission Corpn. v. Ashok Iron Works (P) Ltd.16 stated that the term “includes” is interpreted to enlarge, broaden and expand the meaning of the sentence and hence the second half of the definition in Section 2(s) is exhaustive and all-inclusive. Thus, the Court stated that “shared household” does not just mean the household property of the joint family of which the husband is a member of or has a share in but has a wider scope of interpretation.
Secondly, the Court thoroughly analysed the judgment of the Supreme Court in S.R. Batra v. Taruna Batra17 wherein the Court specifically emphasised that the interpretation in the said case was not a correct interpretation and lacked the legal intent of the drafters. The Court further held that the words “lives or at any stage has lived” does not mean any place they have lived fleetingly including any relative's residence, if the definition is broadened to this extent then that would entirely destruct the motive of the Act and would lead to chaos. The living has to have some form of permanency and should have the intention of the parties to accept the premises as “shared household” property.
Thirdly, the Court concurred with the Delhi High Court's judgment and held that the decree of the trial court was unsustainable as the power under Order 12 Rule 6 18 CPC is discretionary and due to that the trial court must have not given the impugned judgment. The Court in this reference relied on Himani Alloys Ltd. v. Tata Steel Ltd19, S.M. Asif v. Virender Kumar Bajaj20, Section 26 21 of the Act of 2005 and further relied for interpretation of the said Section 26 on Vaishali Abhimanyu Joshi v. Nanasaheb Gopal Joshi22.
Fourthly, the Court opined that the plaintiff in the domestic violence case can be treated as “respondent” as per Section 2(q), of the 2005 Act for the sole purpose of determining the rights under Sections 17 23 and 19 24 read with Section 26 of the said Act of 2005. The Court relied on Hiral P. Harsora v. Kusum Narottamdas Harsora 25 wherein the Court struck down “adult male” and further held that for a person to treated as a “respondent” as per Section 2(q) of the Act of 2005, it has to be proved that person arrayed as respondent has committed an act of domestic violence on the aggrieved.
Fifthly, the Court while relying on Order 1 Rule 10,26 CPC held that the husband is not a necessary party or a party with the view of the fact that no relief has been claimed against the son of the plaintiff. But the Court further gave regard to Sections 17, 19 and 16 27 of the 2005 Act wherein for the purpose of fulfilling the right of alternate accommodation and maintenance under the Hindu Adoptions and Maintenance Act, 195628 the husband is a necessary party.
“Woman now has a right of residence in the property owned by father-in-law as per the 2005 Act.”
This case has been a turning point for securing justice and rights of women and children aggrieved by domestic violence in India and the author subsequently believe it to be a righteous decision by the Hon'ble Justices. Even in the judgment the Judges particularly put specific reliance on the objectives of the 2005 Act wherein securing the rights of the aggrieved woman and children has been the core object and purpose of the legal drafters.
The issues framed by the Supreme Court were of utmost importance but the core understanding and interpretation of the term “shared household” under Section 2(s) of the Act of 2005, overruled various judgments hence making the decision in Satish Chander Ahuja v. Sneha Ahuja29, a landmark judgment. If the Judges would have relied on prior decisions of the Courts in interpreting the meaning of “shared household” then that rightly so would have created a havoc and chaos. The Court by drifting away from the earlier interpretation gave a new hope to the aggrieved woman in India.
The irony is that the definition of “shared household” has been interpreted by the Court in such a manner that would broaden and yet make it limited than the earlier interpretation of the term. Where before the term was interpreted in a literal manner giving no regard to the legal understating and object of the Act of 2005.
It is pertinent to note that the Court disregarded the judgment in S.R. Batra v. Taruna Batra30 as that would only lead to confusion and chaos in the justice-delivering system. Wherein the Court interpreted and expanded the definition is such a direction that would make any casual place of stay by the couple a “shared household” as per Section 2(s) of the 2005 Act. If this was legal intent of the drafters then the parties would ask for a right of residence in any of the relative's homes where they have resided fleetingly together even as a guest which would shatter the whole idea and object of the Act of 2005. The present case sheds light on the fact that broadening the extent of a definition can sometimes lead to more problems than providing prudent solutions. Hence, in the present case the Judges made a clear distinction as to what will form the exhaustive meaning of the definition and gave importance to the intent of the parties to reside in a place with certain permanency rather than just a casual stay. Herein the parties stayed in the self-acquired property of the father-in-law since their marriage which took place in 1995 that shows the “intent of parties to reside in the said residence with certain permanency” making it the “shared household” of the parties.
It is further prudent to note that after this decision the wife would be entitled to right of residence even in the property of father-in-law as per the Act of 2005 making it a landmark judgment which has opened new dimensions for woman and their security. This case has proved to be a pillar which will open new pathways to a more liberal and safe environment for aggrieved woman and children in India.
This judgment paved new pathways for the Act of 2005 but still the condition of women in India is not remotely close to getting any better. Women still are suffering from various brutalities at the hands of their husbands, in-laws, brothers and so on and so forth.
Relying on the statement by the court in the instant matter, the progress of society is still a far-fetched dream in India, there is still a need for more landmark judgments wherein the court regards women as equal and liberal as men. Protecting the rights, liberty and security of women in India must be the core object while deciding not just the matter of domestic violence but also other crucial questions of law.
† Author is a lawyer presently working in the corporate legal department of a company and can be reached at <email@example.com>.
4. Ministry of Home Affairs, NCRB Report Statistics, Vol. 1, available at <https://ncrb.gov.in/sites/default/files/CII%202019%20Volume%201.pdf> (visited on 6-2-2022).
It is not so surprising to often see the Indian judiciary wearing a cloak of inquisitorial system of justice or be seen involved in activism to instate or reinstate justice and/or means of such justice. One such means, the alternative dispute resolution (ADR) has been majorly developed and promoted by judicial activism. Judiciary has proactively evolved ADR by giving it a true meaning and purport in terms of its implementation.
This article strives to show glimpses in past of judicial activism especially in terms of broadening the spectra of matters to deem fit for reference to ADR and in conclusion briefly discusses and predicts if similar trend of activism will exist in the near future in the light of the pending Mediation Bill, 20212 introduced in Rajya Sabha on 14-12-2021.
Noteworthy traces of such activism can be first seen in the judgment of Hussainara Khatoon v. State of Bihar3, wherein the “right to speedy trial” was recognised as being implicit in Article 21 of the Constitution4. To give effect to the said mandate waking up to the need of the hour, Parliament considered introducing various ADR mechanisms to strengthen the judicial system, which inter alia included:
(i) In 1994, amendment to the Legal Services Authority Act, 19875 was introduced to constitute and organise Lok Adalats.
(ii) In 1996, the Arbitration and Conciliation Act6 (A&C Act) was enacted repealing the obsolete 1940 Arbitration Act. Arbitration as a mode of ADR has gained recognition with the A&C Act being amended several times, noteworthily in 2015 and 2018.
In the wake of Section 89 CPC, on 27-7-2002, the then Chief Justice of India, formally inaugurated the Ahmedabad Mediation Centre. The CJI called a formal meeting of the Chief Justices of all the High Courts of the Indian States in November 2002 at New Delhi to impress upon them the importance of mediation and the need to implement Section 89 CPC.9
Section 89 CPC, as vital as a statutory step it was, had serious shortfalls in terms of its implementation that were fixed by the Supreme Court. Section 89 CPC had anomalies that were identified by Supreme Court in a series of cases, which are discussed in subsequent paragraphs of this article. Interestingly, till date the legislature has carried out no amendment to Section 89 to fix these anomalies. But Section 89 is very well been used by courts to refer the matters through ADR, though only after the Court supplemented the wording of Section 89 with purposive interpretation. The Supreme Court in fact was aware of its need to step up, which was respectfully nothing short of being called as activism. The Court relevantly while fixing the anomalies stated that:10
9. If Section 89 is to be read and required to be implemented in its literal sense, it will be a trial Judge’s nightmare. It puts the cart before the horse and lays down an impractical, if not impossible, procedure in sub-section (1). It has mixed up the definitions in sub-section (2). In spite of these defects, the object behind Section 89 is laudable and sound. Resort to alternative disputes resolution (for short “ADR”) processes is necessary to give speedy and effective relief to the litigants and to reduce the pendency in and burden upon the courts.
The 2003 three-Judge Bench judgment in Salem Advocate Bar Assn. v. Union of India called as Salem Bar (1)11 finds a special notice in this regard. The Supreme Court in Salem Bar (1)12, directed for a committee to be appointed to frame model rules explaining the procedure for mediation. The amendment in Section 89 was made on the recommendation of the Law Commission of India and Justice Malimath Committee.13 The Law Commission of India, in compliance with the aforesaid judgment, drafted the consultation paper on ADR and Mediation Rules in 2003 which was adopted by several High Courts to formulate their separate Mediation Rules. Later, Justice Malimath Committee14 recommended making it obligatory for the court to refer the dispute, after issues are framed, for settlement either by way of arbitration, conciliation, mediation or judicial settlement or through Lok Adalat. It is only when the parties fail to get their disputes settled through any of the ADR methods that the suit could proceed further. The Chief Justice of India set up the Mediation and Conciliation Project Committee (MCPC) in 2005 for encouraging amicable resolution of disputes pending in the courts in accordance with Section 89 of the Code of Civil Procedure.
In Salem Bar (1)15, the Supreme Court upheld the validity of Section 89 with all its imperfections and referred to a committee, as it hoped that Section 89 would be implemented by surfacing the infirmities in it. Later in 2005, in another subsequent case of Salem Advocate Bar Assn. v. Union of India, known as the Salem Bar (2)16, recognised certain anomalies under Section 89 and gave purposive interpretation thereby making Section 89 CPC workable. The Supreme Court emphasised the need for ADR in Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd.17 (Afcons case). The judgment firstly acknowledged the anomalies in the understanding of Section 89 while referring to Salem Bar (1)18 and Salem Bar (2)19; and secondly it laid out guidelines for the courts to follow for the effective implementation of Section 89 CPC, which encourages parties to settle their disputes by means of ADR.
In Afcons case, the Court adjudged that reference to ADR is a must and mandatory under Section 89 CPC, “where it appears to the court that elements of settlement exist”20. Even though the Court in Afcons case21 was faced with the issue of adjudging whether mutual consent is necessary for arbitration, the Court made observations with regard to “mutual consent” required or not under all ADR methods recognised under Section 89 CPC. The Court held that mutual consent is required for arbitration and conciliation but not for Lok Adalat, mediation and judicial settlement. Further, an illustrative category of disputes which would be fit and not fit for reference to ADR were also observed.22 In the said list of cases, cases of criminal offences and that of serious and specific allegations of fraud, fabrication of documents, forgery, impersonation, coercion, etc. were held not fit for ADR reference. The Supreme Court in the recent judgments has clarified and limited the scope in cases of fraud. In 2021, the Supreme Court has clarified regarding non-arbitrability of cases involving fraud that “cases involving prosecution for criminal offences, it is also important to remember that the same set of facts may have civil as well as criminal consequences”.23
Through judicial activism the concept and use of ADR has been expanded tremendously. In precedents such as K. Srinivas Rao v. D.A. Deepa24 mediation/ADR was encouraged in matrimonial cases and criminal cases and accepting compromises even in the non-compoundable cases such as Section 498-A25 IPC (though with caution). The Court allowed quashing of complaints on the basis of settlement. Further the Court issued directions re mediation such as setting up pre-litigation desks/clinics; giving them wide publicity and making efforts to settle matrimonial disputes at pre-litigation stage.26 The Court observed:27
44. … there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation … In this exercise, there is no loss to anyone. If there is settlement, the parties will be saved from the trials and tribulations of a criminal case and that will reduce the burden on the courts which will be in the larger public interest.
The judicial courts have proactively allowed mediation in cases of compoundable offences such as Section 13828 of the NI Act.29 In the 2019 judgment of MTNL v. Canara Bank30 the Supreme Court, while invoking the doctrine of “group companies” permitted a non-signatory to an arbitration agreement to participate in the arbitration proceedings. The Supreme Court observed that a non-signatory may be bound by an arbitration agreement where the parent or holding company, or a member of the group of companies is a signatory to the arbitration agreement and the non-signatory entity on the group has been engaged in the negotiation or performance of the commercial contract, or made statements indicating its intention to be bound by the contract, the non-signatory will also be bound and benefited by the relevant contracts. In the instant case, the Supreme Court observed that there was enough factual background to suggest that the parties intended to bind the non-signatory party to the arbitration proceedings.
Needless to add, countless sets of judgments exist where the Court has stressed on restraint to be practised by the courts in cases of review of arbitral awards under Section 3431 of the Arbitration and Conciliation Act, 1996. These judicial precedents lineage starts from the judgment of Associate Builders v. DDA32 in 2014, followed by certain important judgments such as that of Ssangyong Engg. and Construction Co. Ltd. v. NHAI33 and coming to the judgment in Delhi Airport Metro Express (P) Ltd. v. DMRC34 wherein the Court has clarified that it may not interfere with the arbitral award merely because the other view appears more plausible. Even in one of another judgment, Welspun Specialty Solutions Ltd. v. ONGC Ltd.35the Court set aside the order of the High Court and the Single Judge interfering with the award under Section 34 of the A&C Act and upheld the judgment of the Arbitral Tribunal.
All these landmark cases indicate the heavy weight and trust that our judiciary entrusts with the ADR mechanisms such as arbitration.
In the 2019 judgment of Perry Kansagra v. Smriti Madan Kansagra36 the Supreme Court identified various kinds of disputes where ADR may be a better alternative than litigation, such as cases relating to trade, commerce and contracts including, inter alia, money claims arising out of contracts. Disputes relating to specific performance or disputes between insurer and insured, bankers and customers were also considered to be better resolved through an ADR mechanism rather than litigation.
In the judgment of M.R. Krishna Murthi v. New India Assurance Co. Ltd.37, the Supreme Court directed the Government to consider the feasibility of enacting a Mediation Act.
In background of such events, it is not tough to view the upcoming trend that judiciary might adopt if the pending Mediation Bill of 202138 is enacted in its present state, that has been introduced in Rajya Sabha on 21-12-2021. But will the same provide a wholesome law on mediation and will be putting rest to the era of judicial activism in matters of mediation? May be it is too early to say for sure but at the outset it can be seen that provisions of the Bill incorporate limited power to judicial courts to decide if the matter is fit for mediation and scope for reference. The Bill incorporates a proviso to Section 7, which states:39
Provided that nothing contained herein shall prevent any court, if deemed appropriate, from referring any dispute to mediation relating to compoundable offences or matrimonial offences connected with or arising out of civil proceedings between the parties.
The Bill provides a schedule to compartmentalise cases that are not fit for mediation40, which has inadvertently categorised cases such as that of fraud or criminal offences as not fit for mediation at all. In the few cases noted above this seems to be an obsolete view that has been redefined and yet the Bill fails to incorporate it.
Further, the Bill mechanically proposes to make pre-litigation mediation as mandatory41, and thereby not taking into account the most important criteria of success of any mediation i.e. mutual consent. And importantly the Bill leaves not much power with judicial courts to decide if the matter even if not in the category of “disputes not fit for mediation” may still be unfit for mediation. Only the power to grant some interim relief under Section 842 of pending Bill may be granted by the court or tribunal before commencement or during the mediation proceedings is possible. But in toto such a mechanical approach towards implementation of an ADR mechanism that too of mediation is bound to have its shortfall.
It is indicative that the Bill if passed in its present form indicates that it may eventually call for more activism on the part of the Indian judiciary in giving it purposive interpretation for its effective use in adjudging matters through ADR. It can be said that more surprises await to be unboxed where the judiciary can be seen in action with its fathomable and praiseworthy activism.
† Advocate. Author can be reached at <firstname.lastname@example.org>.
9. Mediation and Conciliation Project Committee, Supreme Court of India, Delhi, Mediation Training Manual of India, p. 7, available at <https://main.sci.gov.in/pdf/mediation/MT%20MANUAL%20OF%20INDIA.pdf >.
Transgender is an umbrella term for persons whose gender identity is different from the sex identities assigned at the time of birth. The meaning of the prefix “trans” is across or beyond2 and the gender of a person is culturally and socially constructed.3 From the aforementioned meaning of the two terms, it can be construed that the term transgender is beyond the assigned sex identity at the time of birth. To be more specific, it is the opposite of standard forms of sex i.e. male and female. Sex is in conformity with chromosomes, hormone prevalence, and external and internal anatomy. Gender relates to socially assigned roles of men and women that are set up in the society. People who identify themselves as neither men nor women are in contrast to the socially set up roles of gender. They are considered different by the people who identify themselves as straight men and women. And this is the reason that they are called “transgender”.
Transgender people have existed since ancient times. There are various traces of the trans people found in different books, pictures, arts, crafts, works, mythological stories, epics, culture, songs, poems and various other identified and unidentified sources. These sources from the past make it clear that transgender people have a historical background in various countries all over the world and have existed since ages. The phenomenon is not new but is highlighted in all the ages including today. Archaeological and historical studies are continuously making efforts to understand the literature from the remains of past. These studies assist the present researches grow better and reasonable. The surveys conducted by the archaeologists are making the transgender studies objective, concrete and empirical. The contribution of historical background cannot be ignored to understand the problems and issues that exist in the society at present. If the issues concerning the origin, problems and behavioural patterns of the trans community are studied from the past, it will help the new researches to be analytical, free of prejudices, scientific, fact-based, observational, logical, data oriented and statistically examined. This will help in removal of socially constructed patriarchies. History binds, shapes, creates and helps in understanding the issues of society. The gender identity related to trans people can be studied through previous researches and interpretations of people in books, mythologies, epics, incidents and various other forms of art and literature. For instance, Professor Stephen Whittle has outlined a brief history of transgender issues and highlighted the origin of several terms of transgender vocabulary in an article for The Guardian. As per the above-mentioned article of Professor Whittle, German Sexologist Magnus Hirschfeld has used the word “transvestite” in the year 1910. Magnus later developed the Berlin Institute where the very first “sex change” operations took place. The term “transsexual” was not coined until 1949, “transgender” not until 1971 and “trans” (a very British term) not until 1996.4
If we look deep into the transgender community and their position in India, this community existed in India even in the Hindu epics of Ramayana and Mahabharata. Trans people have also played an important role during the medieval era. Muslim rulers of the Mughal Empire in the 15th to 19th centuries were considered patrons of third gender Indians. They were employed to take care of the harems and queens.
Inspite of the presence of the trans people in human history, the community faces challenges at different levels in the society. These people have to undergo discrimination in all facets of life. Starting from their homes to the place of work, they only manage to survive with a number of pressing difficulties; the community has to face discrimination at large. Trans people are not treated as normal human beings. They too have basic life processes, including respiration, digestion, urination and excretion, similar to the set categories of sex i.e. male and female. But unlike the straight people, this community has not been accepted by the regressive society, they are ill-treated and are economically backward.
They are alienated from the mainstream of the society which is violative of Articles 145, 156, 197 and 218 of the Indian Constitution9. The fact that they have a right to life is not recognised even after several revolutionary judgments by the Supreme Court of India. Trans people are treated as socially unfit and are deprived of the basic fundamental rights. However, these rights should not be only limited to male and female; and should be made accessible for everyone including the trans persons also. The approach of the society towards the trans community is regressive and breaking the constitutional values of equality, liberty and justice. The society should make efforts to protect the rights of dispossessed class of society including the trans people. But, the biased thinking of the so-called straight people is breaking the basic soul of constitutional values by treating them as different people, making them feel discriminated, restricting their freedom and infringing their right to life and personal liberty. Fundamental rights are basic to an individual; they are needed for survival and to lead a normal life. When these basic rights are denied either by legislation or by any social group, nothing can be worse than that.
In spite of making the basic structure of the Constitution of India as a supreme power, societal biases towards the trans community have caused a tremendous breakdown of the democratic structure. Besides, these prejudice to not give recognition to the word “Republic” as given in the Preamble of the Constitution of India. Republic means a State where the supreme authority is in the hands of people and their representatives.
This segregation of the trans people, though a product of patriarchally hegemonistic social structure, has been normalised. This normalisation of the alienation of the transgender persons has been perpetrated by the ideological institutions of society such as family, marriage, university, film, literature, etc. Through these propagandist tools, straight people have been regarded as the standard, while the trans population has been scoffed at, ridiculed, and relegated to the peripheral subaltern positions. This otherisation of the trans has encompassed every point of the human society. It has been culturally transmitted to the succeeding generations and it is almost impossible to shatter this canonised hierarchy of heterosexual binary of males and females. Anything that goes against the fixed notion of sex binaries has been sidelined as something irreligious and blasphemous.
Despite this coerced normalisation of the transgender persons segregation some bright light is entering the dark chambers of the stratified social structure. French legal system has maintained humanitarian aids to trans people upto some extent. It can be noted that adoption by a single individual is permitted in France. Civil rights are basic for any democracy, and opening up the possibility of adoption by a single homosexual can be called a revolutionary step. The European Court of Human Rights opined that it will not be reasonable to advance the treatment regarding the applicant’s sexual orientation as it would amount to discriminatory practices.10
Under the laws of United Kingdom, lesbian, gay, bi and trans people are protected from discrimination. The Equality Act, 2010 provides provisions that an adoption agency must assess the trans person fairly using the same criteria as is designed for the straight male and female community. The authorities could not turn down an application for adoption based on their sexuality.11
Not only this, marital rights to trans community also exist in some countries. The case of Corbett v. Corbett12 is the genesis of all transgender marriages since 1970. In MT v. JT13, MT, a male had a vagina and was able to function sexually as a female. Thereby, she was legally recognised as a female for the purpose of marriage. Considering the judicial pronouncements by Australian courts, marriage between a female to male transgender individual and his wife, a biological female was affirmed valid in Attorney General (Cth) v. Kevin and Jennifer.14 It is for the reason that Court was of the view that for the purposes of marriage, a person’s sex should be determined by considering a number of factors, but these should not be limited to biological and physical characteristics at birth; the person’s life experiences, including the sex in which he or she is brought up and the person’s attitude to it; the person’s self-perception as a man or woman; the extent to which the person has functioned in society as a man or a woman; any hormonal, surgical or other medical sex reassignment treatments the person has undergone, and the consequences of such treatment; and the person’s biological, psychological and physical characteristics at the time of the marriage. Hence, the case considers the marriage between female to male transgender individual and his wife, a biological female was affirmed valid.
In the backdrop of the marital and adoption rights given to the trans population internationally, the Indian courts and judicial system are also democratising the phenomenon more specifically. It is providing humanitarian aids to trans people. The Preamble of our Constitution talks of “liberty”, “equality”, “justice”, “fraternity” to all the people living in the India, “a sovereign, socialist, secular, democratic, republic”. The same principles have been taken into consideration by Part III of the Constitution of India i.e. fundamental rights including right to equality, prohibition against discrimination, right to life and personal dignity and the right to freedom, etc. These fundamental rights exist but the legislations and various norms of societies are not in consonance with the same. There are issues for which there is no legislation even today. Laws are made to govern the society and regulate it. They give power to the weaker and voiceless sections of society. Any kind of absence in the legal provisions may result in the patriarchal systems of our society and this may lead to power centric rule of the authoritarian male dominance. For the sake of same, the Indian Parliament has passed the Transgender Persons (Protection of Rights) Act, 2019.15 The Act was introduced with the objective of eliminating marginalisation from the society. The background behind this legislation goes back to the judgment of National Legal Services Authority v. Union of India16 by K.S. Radhakrishnan, J.where the foundation for establishment of transgender persons as “third gender” was made. The view behind this judicial pronouncement was to curb the discriminatory practices by laying down several measures. This landmark judgment recommended providing reservation in government jobs and educational institutions. It also declared the right to self-perceived gender identity without undergoing sex reassignment surgery. In the year 2016, a Bill was drafted and referred to the Standing Committee of Parliament for further suggestions. Keeping in view the suggestions made by the Standing Committee, a new Bill was introduced in Parliament in the year 2018. This Bill was introduced again in Parliament in the year 2019 which was later passed by both the houses and the assent of President was also granted. The basic aim of this legislation is to curb the discrimination against trans community and provide them equal status in the society by breaking the stigma against them. The subaltern trans groups of people must be given a voice so that they are represented in this patriarchal society. Parochialisation of the transgender people leads to their deprivation from the society and the people. The Act of 201917 was made with a view to follow constitutional and humanitarian values for the segregated trans people.
Despite providing the basic human rights to the trans community, the Act may have some more features for removing the social biases against the community. The Act, though a landmark piece of legislation, requires further scrutinised amendment for raising the voices of the trans people.
No piece of legislation is ever final and absolute. Lawmaking is a continuously evolving kinetic process and newer lights are thrown on the key points through debates, arguments and counter-arguments. The system of dialogue and debates has been existing in human society since ages including India. The Upanishadic debates and Socratic inquisitions show that no human truth is final. There is always scope for further enquiry.
Certain points, as far as this revolutionary Act is concerned, need to be further elaborated upon, debated, argued and discussed to reach a more logical and scientific conclusion. The first question that needs further elaboration is how transgender groups were consulted prior to making of this legislation. Legislation making is a consultative process where the opinion of the maximum number of stakeholders should be taken care of. For further amendments to the Act, the point of views of the trans people should be taken. The Act must further reflect the aspirations of the trans community.
In general, if a family is not welcoming a transgender child, they go to live with their community. Unlike the straight community, they are not given humanitarian behaviour by their family. But as per the provisions of the said Act, if a family does not welcome a transgender child to their own family, the court will decide further the residence and send that child to the rehabilitation centre. Basically, rehabilitation centers are for getting someone’s life to normalcy, if a person has become abnormal due to any kid of disease, accident or situation. Now the question that arises here is: Are transgender people abnormal? The idea against the argument is that the day they are considered as abnormal species, they are included in the category of abnormal human beings and so they are discriminated by the society. They breathe like normal human beings; their basic life processes are similar to the straight community. They eat, breathe and lead their lives. The legislation is showing that they are abnormal beings and thus creating differences among the human beings.
The Act provides that the people who belong to transgender community will have to go through a screening process which will determine their sexuality. This will include a certification by a District Screening Committee. The certificate will acknowledge them as transgender. However, those transgender persons who wish to identify themselves as a man or woman will need to go through a gender affirmation surgery (popularly known as sex reassignment surgery, or SRS). This provision of the Act violates the Supreme Court’s judgment of National Legal Services Authority v. Union of India18 which states that the only thing needed to identify a person is their word for it. It seems like the Act was made keeping in mind the fact that all transgender people either want or have the ability to go through surgical methods. Is this method even feasible for them economically? Isn’t the Act indirectly pushing them to go for surgical methods? The system of the screening process and the need for medical certificate, which will help in determining the sexuality, will actually restrict the equality before law. Now as per the Rules of 202019, they do not have to go through medical examination, but will have to submit an affidavit of their sexuality. After this, an identity card will be issued which will determine their sexuality. This will end their right to self-declaration of sex, which males and females are entitled to. Are the males and females of this society asked to go through such a screening process? Are there separate identity card, for males and females? The classification made is not reasonable and may create alienation of the trans people in the society. This will increase red-tapism forcing the members of trans community to go through bureaucratic procedures.
Next, the punishment of imprisonment against sexual abuse is just two years in case of transgender persons. However, as per the Penal Code, 1860, the punishment for rape against women is seven years.20 This is in clear violation of their equal treatment and status in the society and may be violative of their equality and dignity.
The affirmative action of providing reservations in government jobs and educational institutions is for uplifting the marginalised sections of society. Those who are maltreated, unprivileged and who suffered or are suffering social and economic backwardness are generally given this opportunity so that they may be able to match the mainstream sections of the society. There is no such mention of reservation for trans community under the Act.
The civil rights of transpeople are obstructed by the all power centric patterns in society. In general, males and females are entitled to the right to marry, divorce and adopt. But the transgender community is deprived of such rights. Even after continuous judicial pronouncements, the life and dignity of transgender community is endangered. The case of K.S. Puttaswamy v. Union of India21 lays down the principles of individual liberty and the right to a dignified life. And in Navtej Singh v. Union of India22, the Court referred to a Canadian case wherein it was stated that human dignity is harmed when unfair treatment is meted out based on personal traits or circumstances which do not relate to individual needs, capacities, or merits. It was held that the LGBT community has the same individual needs as the straight community. They too require the same human, fundamental and constitutional rights as other citizens. The community should not be given step-motherly treatment on the pretext of social morality. The disentitlement of adoption by LGBT couples harms the dignity of the people. It is based on their sexual orientation which does not relate to the capacity or merit as prospective parent.
The concept of the National Council for Transgender Community23 for trans community is actually a paper tiger. First of allout of thirty members, only five members will be from the transgender community. So again majority will be of the dominating class of the society and the transgender community will be ignored at the Council. As a result of this, the straight community will have a hold over the transgender community. The voices of trans people may be suppressed if the majority lies in the hands of powerful and dominating class of the society. The ratio of the number of members in the Council may create a disparity. The Council lacks independence in carrying out functions.
The provisions relating to begging have been decriminalised by the Act of 2019 and the word ‘begging’ in Section 19under Chapter VIII (Offences and Penalties)of the Bill of 201624 (Section 18 of the 2019 Act) has been removed. The High Court of Delhi in Harsh Mander v. Union of India25 had also marked the Bombay Prevention of Begging Act, 195926 as unconstitutional holding that it violates Articles 14 and 21. The Court opined that there is a class of society who has no other means of sustenance but to seek alms for it. Criminalisation of begging is clear violation of the basic rights that are needed for the community. The people who are suffering from poor economic conditions also need to fill their stomachs. Hunger, housing and clothing are the basics for any individual or species. The one who is living in the outskirts of economic valuation has to beg as the last resort. They do not have any other choice left. The judgment defends the right to life of poor persons who sustain and lead their lives through begging. The Court order challenges the middleclass resentment towards “illegitimate denizens”.27 But the above argument of the Court and the Act of 2019 can also be seen as not mitigating the problem of unemployment among the trans community. To weed out the extreme conditions of object poverty and deprivations, along with the decriminalisation of beggary, employment resources must be generated for the transgender people. The Act has made commendable provisions by decriminalising begging. But to uplift the economic conditions of the transgender people, job opportunities and startups should be opened for them. It is to be noted that the Act and such judicial pronouncements are pushing these people to beggary and not towards jobs and services. These people must be provided with an adequate means of survival and not the act of beggary. This will embark their dignity and social status in the society. Transgender persons must also be given such rights for their proper and dignified survival.
From the above-mentioned arguments it can be clearly stated that the trans communities are not treated fairly. They are subject to continuous discrimination by the society, set norms and even the legislations. They are not provided with the basic human rights. To empower them, basic constitutional rights must be taken care of. This will break the hierarchy and the deprived trans people will live their lives with dignity. Also, there is a need for revolutionary steps to be taken. All the provisions of the Transgender Act must be implemented properly and necessary amendments to the same may be introduced. This will help to provide liberty, equality and fraternity. Trans people must not be segregated, they should be a part of this society. Legislations should be made inclusive and so that the marginalised and weaker sections of this society will be provided with basic rights. Thereby, the transgender persons must be provided with human, civil and constitutional rights. This will embark a change in the patriarchal social normative theories of the people. And the trans community will be able to lead their lives with dignity and freedom.
† BA LLB 5th year, student at Jamnalal Bajaj School of Legal Studies, Banasthali Vidyapith, Rajasthan. Author can be reached at <email@example.com>.
2. Oxford Advanced Learner’s Dictionary, Oxford University Press, 8th Edn., 2010, p. 1644.
3. Nicholas Abercrombi, Stephen Hill and Bryan S. Turner, The Penguin Dictionary of Sociology, Penguin, 2006, p. 163.
4. Prof. Stephen Whittle, “A brief history of transgender issues”, The Guardian, <>(accessed on 20-2-2022).
10. E.B. v. France,  ECHR 55: (2008) 47 EHRR 21.
11. <>(accessed on 20-03-2022).
13. 6 Cap UL Rev 403 (1976-1977):(1976) 355 A 2d 204.
14. (2003) 77 (7) LIJ, the decision was affirmed on appeal by the Full Court of the Family Court of Australia [Attorney General (Cth) v. Kevin and Jennifer], 2003.
On 11-5-2022, a three-Judge Bench of the Supreme Court of India in S.G. Vombatkere v. Union of India2, while dealing with the petitions challenging the constitutionality of Section 124-A3 of the Penal Code, 18604 which deals with offence of “sedition”, has directed that all pending trials, appeals and proceedings with respect to the charge framed under the said section be kept in abeyance. The Supreme Court also urged the State and Central Governments to restrain from registering any FIR under Section 124-A IPC till the Court decides the provision’s constitutional validity. In case, the court further held, the FIR is registered then the affected person is free to approach the court concerned for appropriate relief.
In simple terms, as the Supreme Court cannot direct the police not to register FIR in a cognizable offence in view of its own decision in Lalita Kumari v. Govt. of U.P.,5 it has urged the police not to register FIR under Section 124-A IPC and gave liberty to the affected party to approach the court concerned for appropriate relief if the FIR is registered. The “court concerned” here, by all accounts, means the High Court which has got power under Section 4826 of the Code of Criminal Procedure, 19737 to quash/stay the FIR. And in all likelihood, all the High Courts in India will stay the FIRs registered under Section 124-A IPC on the ground that the provision’s validity is pending consideration by the Supreme Court. This means Section 124-A IPC has been kept in abeyance not only for cases pending trials, appeals, charge but also for cases at the investigation/crime stage.
In legal sense, the operation of Section 124-A IPC has been stayed by the Supreme Court. While many are calling it as a historic order, in my opinion, the Supreme Court went against its own principles in passing the above discussed order.
It is the Court’s own craved principle in Health for Millions v. Union of India,8 that the “operation of statutory provisions cannot be stultified by granting an interim order except when the court is fully convinced that the particular enactment or rules are ex facie unconstitutional and the factors, like balance of convenience, irreparable injury and public interest are in favour of passing an interim order”. While one may argue that Section 124-A , which is “colonial era provision”, seems to be ex facie unconstitutional, causes irreparable injury and is against public interest and that in some previous cases the courts granted stay of the statute, but those were the cases where the statute was challenged immediately after its enactment. Here, Section 124-A IPC is in vogue since 152 years which does not call for a stay at this point of time. Also, the Courts granting stay or abeyance of the statute while the hearing of the case is pending will create an impression that the court has formed a particular opinion even before pronouncing the final judgment.
It is again the court’s-own-craved principle that there is always a presumption that a statute is constitutional, until the court, after hearing finally, declares it to be unconstitutional. For Section 124-A, there should be double presumption because, firstly, as per Article 372(1)9 of the Constitution all laws before the enactment of the Constitution shall continue to be in force until they are repealed by the competent legislature. That the legislature has not done it even after 72 years of coming into force of the Constitution means that the legislature in its wisdom, although may be wrong, has thought that the provision shall continue. Secondly, in Kedar Nath Singh v. State of Bihar,10 a five-Judge Constitutional Bench declared Section 124-A to be valid and not in violation of Article 19(1)(a)11 of the Constitution.
Also, in S.G. Vombatkere case,12 the Bench strength was of three Judges which was hearing the issue as to whether to refer the matter to a larger Bench as the Bench strength in Kedar Nath Singh case,13 which held Section 124-A IPC to be valid, was of five Judges. However, without deciding on the referral aspect, the 3-Judge Bench, in extreme deviation from the doctrine of stare decisis, has kept Section 124-A into abeyance.
Even assuming that Section 124-A will be declared unconstitutional by overruling Kedar Nath Singh case,14 such declaration has to apply prospectively as Article 13(1)15 uses the word “void” i.e. from the date of declaration of law and not the words “void ab initio” i.e. from the beginning. By borrowing the principle from American jurisprudence, the Supreme Court in C. Golak Nath v. State of Punjab,16 has started the doctrine of “prospective overruling”. This doctrine enunciates that when the court finds or lays down the correct law, the court restricts the operation of new found law to the future so that its impact does not fall on the past transactions.
In Chicot County Drainage District v. Baxter State Bank,17 the US Supreme Court said, “The law prior to the determination of unconstitutionality is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration.” Therefore, the present abeyance of all the proceedings, even before declaring Section 124-A IPC as unconstitutional, is against the doctrine of “prospective overruling.”
It is true that Section 124-A IPC is being misused by the ruling dispensation to stifle the democratic views and it is also true that Section 124-A IPC was castigated by likes of Mahatma Gandhi, Bal Gangadhar Tilak and many great intellectuals. In that scenario, the Supreme Court can give priority to hearing of the cases challenging validity of law and declare it either ways, instead of bypassing the settled principles of law.
† Advocate practising at Telangana High Court. Author can be reached at <firstname.lastname@example.org>.
Himachal Pradesh High Court: Chander Bhusan Barowalia J. disposed of the petition and quashed the FIR/complaint.
The facts of the case are such that marriage between Mukesh Sharma (son of petitioners 1 and 2 and brother of petitioner 3) and respondent No. 2/wife was solemnized on according to the Hindu rites and ceremonies and out of their wedlock one son namely, Master Kartik, was begotten. However, immediately after the marriage, differences arose between them and the wife has lodged a complaint against her husband and his family members, wherein allegations of harassment for bringing less dowry and maltreatment have been leveled. Consequently, F.I.R was registered under Sections 498A, 406, 120B and 506 Penal Code, 1860 i.e. IPC. However, the parties settled their dispute amicably, vide Compromise Deed, as per terms of the Compromise Deed, they do not want to continue with the present case. Hence, the present petition was filed under Section 482 of the Code of Criminal Procedure i.e CrPC for quashing the F.I.R.
Counsel for petitioner Mr. Ashok Kumar Thakur submitted that the parties have compromised the matter vide compromise deed, no purpose would be served by keeping the proceedings alive, therefore, the FIR, along with consequent proceedings arising out of the same, may be quashed and set aside.
Counsel for respondent Mr. C N Singh and Mr. Devender Sharma submitted that parties have settled their dispute amicably, the present petition may be allowed.
The Court relied on judgment Jitendra Raghuvanshi v. Babita Raghuvanshi, (2013) 4 SCC 58 wherein it was observed that “Even if the offences are non compoundable, If they relate to matrimonial disputes and the court is satisfied that the parties have settled the same amicably and without any pressure, we hold that for the purpose of securing ends of justice, Section 320 of the Code would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings.”
The Court thus observed that even if, the trial is allowed to be continued, as the parties have compromised the matter, there are bleak chances of conviction to secure the ends of justice. Thus, taking into consideration the law as discussed hereinabove and the compromise arrived at between the parties vide Compromise Deed, placed on record, I find that the interest of justice would be met, in case, the proceedings are quashed, as the parties have compromised the matter and do not want to proceed further with the case in order to live peacefully.
The Court held “present is a fit case to exercise jurisdiction vested in this Court, under Section 482 of the Code and, therefore, the present petition is allowed and F.I.R No. 105, dated 01.06.2013, under Sections 498A, 406, 120B and 506 of IPC, registered at Police Station Dehra, District Kangra, H.P., is ordered to be quashed.”
[Parkash Chand v. State of H P, 2021 SCC OnLine HP 7918, decided on 15-11-2021]
Arunima Bose, Editorial Assistant has reported this brief.
Madhya Pradesh High Court: G.S. Ahluwalia, J., rejected the bail application of the applicant finding no merit in the application in connection with the FIR registered for offences punishable under Sections 363, 366, 376 of the Penal Code, 1860 and Sections 3/4 of the POCSO Act.
The applicant has filed six applications prior to the present one. The applicant had been arrested on 13-06-2018 for crimes committed under the aforementioned sections of IPC and POCSO. The previous application has already been dismissed by order dated 25-09-2018 passed in MCRC No. 29669/2018.
The counsel for the applicant, Nirmal Sharma has contended that there are major discrepancies in the testimony of the material witnesses.
Heeding to this particular argument, the Court relied on the case titled Satish Jaggi v. State of Chhattisgarh,(2007) 11 SCC 195 and observed that at this stage of bail, it would not be fit to look into the credibility and reliability of the witnesses. The relevant para from the judgment has been quoted below-
‘’12. Normally in the offence of non-bailable also, bail can be granted if the facts and circumstances so demand. We have already observed that in granting bail in non-bailable offence, the primary consideration is the gravity and the nature of the offence. A reading of the order of the learned Chief Justice shows that the nature and the gravity of the offence and its impact on the democratic fabric of the society was not at all considered. We are more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at the stage of granting bail. By making such observations and findings, the learned Chief Justice has virtually acquitted the accused of all the criminal charges levelled against him even before the trial. The trial is in progress and if such findings are allowed to stand it would seriously prejudice the prosecution case. At the stage of granting of bail, the Court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial.
13. In the present case, the findings recorded by the learned Chief Justice, as referred to above, virtually amounts to the regular trial pointing out the deficiency and reliability/credibility of prosecution evidence. Such findings recorded at the stage of consideration of bail, in our view, cannot be allowed to sustain.”
Another argument advanced by the counsel for the applicant is that there is confusion with respect to the age of the victim as she stated her age as twenty-two while getting married in 2018.
The Court refuted this argument too on the basis of the case of Jarnail Singh v. State of Punjab, (2013) 7 SCC 263 and held that the victim was a minor on the date of the incident in accordance with her school record. It’s the trial court’s case to assess the age of the victim considering whether she has disclosed herself to be a major or not.
On the contention of delayed trial regarding the duration of the applicant’s custody, the Court remarked that no order sheets have been filed by the applicant to indicate that he himself is not responsible for the delay. The contention that no order sheets have been placed on record has already been rejected by this Court earlier.
In view of the above, the present application has been rejected by the Court. [Mukesh v. State of M.P., 2020 SCC OnLine MP 1794, decided on 21-08-2020]
As reported by Economic Times, the Ministry of Home Affairs in consultation with the Bureau of Police Research and Development is considering amendments to the criminal laws of the country. The laws under consideration for amendment are Penal Code, 1860, Code of Criminal Procedure, 1973 and Evidence Act, 1872.
Some of the proposals being looked at are:
- Diluting the right of appeal to avoid inordinate delays in certain cases, like the 2012 Nirbhaya gangrape case, where the convicts are using legal remedies to seek relief from capital punishment. A ministry official clarified that any amendments to CrPC or revision process would be legally examined as the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 confers to the Supreme Court the power to hear an appeal from any judgment, final order or sentence in a criminal proceeding of a high court for certain cases.
- Adopting certain features of the inquisitorial system which is followed in Germany and France to make the current adversarial system more effective. For example, in the inquisitorial system, the investigation is supervised by the judicial magistrate which leads to a higher rate of conviction
- Classifying crimes as blue-collar, white-collar, red-collar, green-collar and black-collar crimes under Penal Code, 1860 to equip the police to deal with complex dynamics of internal security.
- Setting up modus operandi bureaus at national and state levels to study the technique of crimes and mentality of criminals.
- Setting up of National Police University and Forensic Science University with affiliated colleges in every state. This was suggested by Home Minister, Amit Shah to create skilled manpower to tackle complex cases with advanced forensic capabilities instead of the use of third-degree and torture to solve cases.
A home ministry official said that the new laws should be in accordance with the democratic aspirations of people and provide speedy justice to women, children and weaker sections of society. Suggestions have been sought from all states and union territories, the official added.
[Source: Economic Times]
Patna High Court: Birendra Kumar, J. dismissed a criminal miscellaneous application filed by the petitioner challenging the order of cognizance passed against him under various Sections of IPC and Prevention of Corruption Act, 1988.
In the instant petition the accused in connection with Vigilance P.S. Case of 2013 registered under Sections 409, 420, 467, 468, 471, 477A and 120B of the Penal Code as well as under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988. The petitioner, when worked as an Executive Engineer, was alleged to pass false measurement report of Government schemes and uncompleted worked which was marked as completed in the aforementioned reports. It was further alleged that the reports were submitted in collusion with the Assistant Engineer.
It was averred by the petitioner that allegation made in the FIR on their face value did not disclose a cognizable offence made out against the petitioner and even if any non-cognizable offence is made out, investigation of the same was not permissible, except under order of the Magistrate.
The Court observed that no cognizable offence was disclosed in the FIR against the petitioner though the apparent allegation of embezzlement of public money was there. It was stated that, petitioner was a Government servant having a specific allegation of submission of measurement report which showed completion of the work whereas the work was not completed at all in respect of Government schemes. Hence, prima facie material was there against the petitioner for proceeding with the trial. [Md. Zahoorul Haque v. State Of Bihar, 2019 SCC OnLine Pat 1017, decided on 25-06-2019]