Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a significant decision P. V. Kunhikrishnan, J., directed the Registrar of Births and Deaths to expunge the father’s name of the petitioner 1 from his birth certificate and issue a new certificate showing the name of his mother only as a single parent.

Background

Petitioner 2 is the mother of petitioner 1 who had conceived her son (petitioner 1) when she was a minor under a mysterious circumstance by an unidentified person. Therefore, petitioner 1 had approached the High Court seeking directions to the Registrar of Births and Deaths (the Registrar) to expunge and remove his father’s name from the birth register and issue a certificate showing the mother’s name only as a single parent. Petitioner 1 contended that his father’s name is given differently in three different documents, referring it as “Z”, “Z1” and “Z2”, which creates great uncertainty and difficulty.

Petitioners’ Stand

Petitioner 1 submitted that Section 15 of the Registration of Births and Deaths Act, 1969 gives power to the Registrar to correct the entries, if it is proved that any entry of a birth or death in any register kept by him is erroneous in form or substance or has been fraudulently or improperly made. Similarly, Rule 11(2) of the Kerala Registration of Births and Deaths Rules, 1999 states that if any person asserts that any entry in the register of births and deaths is erroneous in substance, the Registrar may correct the entry in the manner prescribed under Section 15 upon production by that person, a declaration setting forth the nature of the error and true facts of the case made by two credible persons having knowledge of the facts of the case.

Moreover, complying with the directions issued by the Supreme Court in ABC v. State (NCT of Delhi), 2015 (10) SCC 1, the Central Government also issued a circular to all Chief Registrar of Births and Deaths in the country in this regard directing that the name of the single parent will be written in the birth record, and the name of the other parent must be left blank if such requests are made.

Judicial Pronouncements

In ABC v. State (NCT of Delhi), 2015 (10) SCC 1, the Supreme Court was to answer whether it is imperative for an unwed mother to specifically notify that the putative father of the child to whom she has given birth, in her petition for appointment as the guardian of her child. The Court answered that if a single parent/unwed mother applies for the issuance of a Birth Certificate for a child born from her womb, the Authorities concerned may only require her to furnish an affidavit to this effect, and must thereupon issue the Birth Certificate unless there is a Court direction to the contrary.

Relying on Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1, the Court held that there is no doubt that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution and it is important to recognize that reproductive choice can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity, and bodily integrity should be respected.

Reliance was also placed on the decision of Kerala High Court itself in XXXX v. State of Kerala, 2021 SCC OnLine Ker 3285, wherein the High Court, while considering the situation of a single parent/ unwed mother getting conceived by Assisted Reproductive Technology (ART), directed the government to bring out a separate form which does not contain a field requiring the name and other details of the father.

Findings and Conclusion

Hence, the Court opined that it is the right of a person to include his mother’s name alone in the birth certificate, identity certificates, and other documents as there are children of rape victims and children of unwed mothers and their right to privacy, dignity, and liberty cannot be curtailed by any authority.

Citing a Mahabharata reference the Court expressed,

“We do not want a society with characters like “Karna,” who curse his life because of the insult he faced for not knowing the whereabouts of his parents. We want the real brave “Karnas’ who was the real hero and fighter in “Mahabharatha”. Our Constitution and the constitutional Courts will protect all of them and the new age “Karnas” can live like any other citizen with dignity and pride.”

Consequently, the Court issued following directions:

1. The Registrar was directed to expunge and remove the name of the father of petitioner 1 from the Birth Register maintained at his office and issue a certificate showing the name of the mother only as a single parent, if such a request is made by the petitioners. The Court directed that the needful be done as expeditiously as possible, at any rate, within two weeks.

2. On the petitioners producing a corrected certificate issued by the Registrar, respondents 2 to 8 are directed to give effect to the consequential expunge of the name of the father from their official records and databases.

3. The Registry is directed not to mention the names of the petitioners in the cause title of the judgment while uploading it to the official site. However, the registry is also directed to give a sufficient number of certified copies of the judgment along with the details of the petitioners in a separate sealed cover if a copy application is filed for that purpose by the petitioners for production before the respondents.

[X v. Registrar of Births and Deaths, 2022 SCC OnLine Ker 3770, decided on 19-07-2022]


Advocates who appeared in this case :

Atul Sohan, Sreeja Sohan K., K.V.Sohan, Vinai John, and R.Reji (Attingal) and V.K.Sunil, Advocates, for the Petitioners;

The Registrar of Births and Deaths, Pathanamthitta Municipality (Party-In-Person), for the Respondents;

ASG Manu S., Advocate, for the Union of India;

SC Jose Joseph, Advocate, for the Income Tax Department, Kerala;

SC Deepu Lal Mohan, Advocate, for the Kerala Election Commission;

P.K. Ravindranatha Menon (Sr.).

Patna High Court
Case BriefsHigh Courts

Patna High Court: Sanitation is personal and private, inextricably linked to human dignity. At the same time, sanitation has an essential public health dimension. A recent judgment by the Division bench of Sanjay Karol CJ and S.Kumar J. observed that the right to sanitation comes within the scope of Article 21 and therefore, directed the State, National Highway Authority of India (NHAI), and Oil Marketing Companies (OMC) to construct public toilets and public conveniences on highways across the state of Bihar.

Issues in question

1. Whether the failure of the authorities to finalize the setting up of Petrol Pumps leads to a violation of the rights of travelers?

2. Within the expanding area of Right to Life, does an entitlement of the right to sanitation arises, more so on the Highway, be it setting up of Petrol Pumps and providing facilities therein or otherwise?

3. What is the nature of obligations imposed upon the State to ensure the availability and upkeep of sanitation facilities on the Highways?

Analysis

Sanitation facilities

The bench was of the view that the State is under the obligation to provide basic amenities to the citizens on the Highways while ensuring that their basic right to sanitation or basic amenities is not defeated. The bench stated that

“… the right to sanitation comes within the expansive scope of Article 21. The nature of obligation imposed upon the State is not only that of being a welfare state but also the realization of fundamental rights for every citizen, even the rights enshrined within Article 21, which forms the nerve center of our constitutional consciousness.”

Further, the bench noted that the lack of sanitation facilities on the highways has a significant impact on our environment and it encourages people to indulge in the unsafe practice of open defecation/ urination which ultimately causes serious health and hygiene issues.

The bench noted that, in order to provide sanitation access to everyone by achieving multiple targets of United Nation’s Sustainable Development Goals (SDG), the bench laid emphasis on the judgment given by the Supreme Court in Citizens for Green Doon v. Union of India, 2021 SCC OnLine SC 1243 wherein the court recognized the important position of sustainable development framework in environmental jurisprudence.

Setting up of Petrol Pums

The bench observed that Roadways and Highways form an essential part of the national economy as they are the connectors between different parts of the country. Easy travel with all necessities being served is a ‘right’. Setting up petrol pumps at regular intervals helps in achieving both economic and social benefits.

“The lapse of time from the initiation of the process to the setting up of these units, take away the ideals of a welfare State where the prime objective of the administration is to serve the people in a way that all their needs are met, also giving them opportunities to grow.”

Therefore, the court concluded that it is essential to note the caution in setting up petrol pumps as petrol is a product of a conventional source of energy i.e. crude oil. Hence, the distribution of the said commodity should be done in such a way that the paramount consideration of environmental suitability and resource conservation is given due consideration.

Directions issued

In the light of the above analysis, the Bench issued necessary directions to the State, NHAI and OMCs-

• The Chief Secretary, Government of Bihar, to convene a meeting of all stakeholders to examine the best and most efficient way to realize the multifarious benefits arising from the establishment of petrol pumps with equal importance being placed upon economic, social and environmental aspects.

• The Development Commissioner, Government of Bihar, who is already seized of the matter shall take expedient steps in furtherance of the action(s) taken thus far.

• The State, NHAI and the OMCs consider constituting public toilets and public conveniences at places easily identifiable and accessible by the public at large, and in this regard, signboards of “Public Toilets” or “Private Toilets” be displayed at the retail outlets.

• The amenities constructed should be done so, keeping in mind accessibility for persons with disabilities. The State has a responsibility to provide them equitable access to basic amenities while undertaking road travel, in light of the Constitution of India and the various international Human Rights obligations.

• All toilets be adequately staffed for taking care and maintaining the same with a proper system for the disposal of sanitary napkins.

• Authorities may also consider making it necessary/mandatory for all the Dhabas/ Restaurants on the highways to make available public toilets and drinking water facilities for the use of the general public. While granting permission to such establishments, authorities should consider incorporating specific conditions regarding the provision of toilets and restrooms. Also, maintain the same hygiene, failing which their registration/permit is cancelled.

• The State Authorities and corresponding Central Authorities will take expedient steps to check the practice of the black-marketing or open unauthorized sale of petrol/diesel.

• The authorities may consider the development of a mechanism to:-

(a) institute a randomized checking system to ensure facilities and resources’ quality and proper availability.

(b) in consultation with OMCs and furtherance of the Statutory obligation take constructive steps to ensure sustainable use of resources and all other related issues.

(c) Prepare a digital platform furnishing complete information of such places of convenience to the general public with a provision of lodging online remarks.

[National Highway Projects v. State of Bihar, 2022 SCC OnLine Pat 1048, decided on 10-05-2022]


Advocates who appeared in this case :

Mr. P.K. Shahi, Senior Advocate, Amicus Curaie, for the petitioner;

Mr. Anjani Kumar, AAG-4, Mr. Alok Kumar Rahi, AC to AAG-4, for the State of Bihar;

Mr. Kumar Priya Ranjan, Advocate, Mr. Pallav, Advocates, for the Union of India;

Dr. K.N. Singh, ASG, Dr. Maurya Vijay Chandra, Advocate, Mr. Devansh, J.C. to A.S.G., Mr. Sriram Krishna, JC to A.S.G., Mr. Amarjeet, Advocate., Mr. Gaurav Govinda, Advocate., Mr. Gaurav Kumar, Advocate., Ms. Anjali Kumari, Advocates, for the NHAI;

Mr. Sarat Kumar Mishra, Advocate, Mr. Ankit Katriar, Advocate, for the IOCL;

Mr. Siddharth Prasad, Advocate, Mr. Om Prakash Kumar, Advocate, for the BPCL;

Mr. Rajeev Prakash, Advocate, for the HPCL.

Canada SC
Case BriefsForeign Courts

Supreme Court of Canada: A full bench comprising, Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ unanimously ruled that imposing consecutive sentences under Section 745.51 of the Criminal Procedure Code, violates Section 12 of the Canadian Charter of Rights and Freedoms. It was observed that “Not only do such punishments bring the administration of justice into disrepute, but they are cruel and unusual by nature and thus contrary to s. 12 of the Charter. They are intrinsically incompatible with human dignity because of their degrading nature, as they deny offenders any moral autonomy by depriving them, in advance and definitively, of any possibility of reintegration into society.”

Facts and contentions of the case:

On January 27, 2019, Alexandre Bissonnette opened fire on the worshippers that were gathered in the Great Mosque of Québec for evening prayer. Six people were killed and five were seriously injured. He pleaded guilty to all charges against him, including six counts of first degree murder.

According to the Canadian Law, a person who has committed murder will be sentenced minimum to life imprisonment and would be eligible for a parole after 25 years of period of ineligibility.

The State pleaded for the imposition of Section 745.51 as the accused had committed multiple murders. This provision allows the periods without eligibility for parole for each murder conviction to be served back-to-back (consecutively). Bissonnette challenged the constitutional validity of the section. The trial court made an attempt to provide remedy for the provision by bear reading it and granting the courts to choose an additional period of ineligibility for 40 years before applying for parole. The court of appeal declared the provision unconstitutional and held that the accused serve a 25-year parole ineligibility period on each count before being able to apply for parole.

Observations made by the Supreme Court

While dismissing the appeal filed against this judgment of the Court of Appeal, the Supreme Court made the following observations:

  • Such punishments bring the administration of justice into disrepute, but they are cruel and unusual by nature and thus contrary to s. 12 of the Charter. They are intrinsically incompatible with human dignity because of their degrading nature, as they deny offenders any moral autonomy by depriving them, in advance and definitively, of any possibility of reintegration into society.
  • Sentences of imprisonment for life without a realistic possibility of parole may also have devastating effects on offenders, who are left with no incentive to rehabilitate themselves and whose incarceration will end only upon their death.
  • For the objective of rehabilitation to be meaningful, every inmate must have a realistic possibility of applying for parole, at the very least earlier than the expiration of the minimum ineligibility period of 50 years stipulated in the impugned provision for cases involving first degree murders.
  • Imposing consecutive 25 year parole ineligibility periods is unconstitutional must not be seen as devaluing the life of each innocent victim.

Everyone would agree that multiple murders are inherently despicable acts and are the most serious of crimes, with consequences that last forever. This appeal is not about the value of each human life, but rather about the limits on the state’s power to punish offenders, which, in a society founded on the rule of law, must be exercised in a manner consistent with the Constitution.

Along with the aforementioned observations, the court pointed out that the Parliament may not prescribe a sentence that negates the objective of rehabilitation in advance, and irreversibly, for all offenders. The penological objective is intimately linked to human dignity, that every individual has the capacity to reform and re-enter the society. In the light of this conclusion, the Court unanimously declared section 745.51 invalid from the time it was enacted in 2011. Resultantly, the law that existed before the date will continue to apply.

[R. v. Bissonnette, 2022 SCC OnLine Can SC 1, decided on May 27, 2022]

Legal RoundUpWeekly Rewind


Top Story of the Week


Aadhaar Card for Sex Workers| Supreme Court bats for sex workers’ right to dignity; directs UIDAI to issue Aadhaar Card without insisting on address proof 

The Supreme Court has upheld sex workers right to identity and issued detailed directions for their protection and upliftment. The directions ranged from prohibiting police actions against consenting sex workers, police and medical protections for sex workers being victim of sexual assault, holding media accountable for voyeurism on revealing identity of sex workers to directing UIDAI to issue Adhar Card for them without insisting on address proof. 

It was observed that  

“…basic protection of human decency and dignity extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children.” 

Read here: https://www.scconline.com/blog/post/2022/05/26/aadhaar-sex-workers-without-address-proof-supreme-court-india-judgement-legal-news-updates-research-rights/  


Supreme Court


Insurance companies refusing claims on flimsy/technical grounds must stop! Don’t ask for documents that insured can’t produce 

Insurance companies refusing claims on flimsy/technical grounds must stop! This is what the Supreme Court observed while dealing with  a case where an Insurance Company had refused to settle an insurance claim on non-submission of the duplicate certified copy of certificate of registration of the stolen vehicle. The COurt held that while settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control. 

The Court was dealing with a case where a truck was stolen when and the Court observed the appellant had produced the photocopy of certificate of registration and the registration particulars as provided by the RTO, solely on the ground that the original certificate of registration (which has been stolen) is not produced, non-settlement of claim can be said to be deficiency in service. Therefore, the appellant has been wrongly denied the insurance claim. 

Read here: https://www.scconline.com/blog/post/2022/05/23/insurance-claim-rejection-technical-ground-insurance-company-non-production-document-supreme-court-india-judgments-mr-shah-legal-reserach-updates-news/  

Hindu widow’s pre-existing right to maintenance automatically ripens into full ownership when she is in settled legal possession of the property 

Observing that a Hindu woman’s right to maintenance is not an empty formality, the Supreme Court has held that by virtue of Section 14(1) of the Hindu Succession Act, 1956, the Hindu widow’s limited interest gets automatically enlarged into an absolute right, when such property is possessed by her whether acquired before or after the commencement of 1956 Act in lieu of her right to maintenance. 

Where a Hindu widow is found to be in exclusive settled legal possession of the HUF property, that itself would create a presumption that such property was earmarked for realization of her pre-existing right of maintenance, more particularly when the surviving co-parcener did not earmark any alternative property for recognizing her pre-existing right of maintenance. 

Read here: https://www.scconline.com/blog/post/2022/05/25/hindu-woman-right-to-maintenance-settled-possession-absolute-ownership-section-14-hindu-succession-act-supreme-court-judgment-india-legal-research-updates-news/  

IGST on Ocean Freight for imports unconstitutional; Won’t create a level playing field but will drive Indian shipping lines out of business 

In the case where the constitutionality of two Central Government notifications related to IGST was under scanner, the Supreme Court has held that since the Indian importer is liable to pay IGST on the ‘composite supply’, comprising of supply of goods and supply of services of transportation, insurance, etc. in a CIF contract, a separate levy on the Indian importer for the ‘supply of services’ by the shipping line would be in violation of Section 8 of the CGST Act. 

The Court observed that, 

“If Indian shipping lines continue to be taxed and not their competitors, it would drive the Indian shipping lines out of business.” 

Read here: https://www.scconline.com/blog/post/2022/05/21/igst-ocean-freight-imports-unconstituional-indian-importers-shipping-lines-supreme-court-india-legal-research-updates-tax-law-news/  


High Courts


Kerala High Court| Right of Press to report truthfully and faithfully; Press shall NOT indulge in sensationalism

Stating that, though the Press has a duty to inform the public, the Division Bench of Devan Ramachandran and Sophy Thomas, JJ., observed that, it is the well-accepted thumb rule that the Press shall not indulge in sensationalism; or in speculating upon the guilt or otherwise of any accused or other individual; or to create an opinion about the comportment or character of a person involved in the Trial; and not to embellish, by impelling or sponsoring an opinion they seek. 

High Court also observed that,

“Press has a duty to inform the public, the publication of lurid details and other sensitive investigative inputs, which are within the sole jurisdiction of the courts to decide upon, certainly require to be put on a tight leash.” 

Read here: https://www.scconline.com/blog/post/2022/05/25/right-of-press-to-report-truthfully-and-faithfully-legal-news-legal-updates-law-kerala-highcourt/

Chhattisgarh High Court| Would pledge of ornaments kept for marriage of a daughter and use for self without knowledge of husband would amount to cruelty? 

In a matter pertaining to mental cruelty, the Division Bench of Kerala HC, expressed that, if a spouse by her own conduct, without caring about the future of the daughter, parts with ornaments which were meant for the marriage, it will be within the ambit of mental cruelty done by the wife. 

The Bench also added to its observation that, during the marriage ceremony in the Indian household, the presentation of the ornament is normally done for which the parents start the effort, from an early date. 

Read here: https://www.scconline.com/blog/post/2022/05/24/would-pledge-of-ornaments-kept-for-marriage-of-a-daughter-and-use-for-self-without-knowledge-of-husband-would-amount-to-cruelty-chhattisgarh-high-court-law-legal-news-legal-updates/ 

P&H High Court| Can an act of dissent be labeled as sedition? 

Expressing that, in a democratic set-up, there always would be voices of dissent and opinions against rules and protest against actions, P&H HC, observed that, some protests may have aggression but still an act of dissent would not be ordinarily labeled as sedition. 

Bench added to its observation that, to attract an offence such as Section 124-A IPC, there must be deliberate resistance and conscious defiance of authority with a conceived plan aimed to unsettle elected government. 

Read here: https://www.scconline.com/blog/post/2022/05/26/can-an-act-of-dissent-be-labelled-as-sedition-punjab-and-haryana-high-court-law-legal-news-legal-updates/ 

Delhi High Court| Once tenant starts paying rent, can he/she turn around and challenge title of landlord? 

In a matter with regard to the grant of leave to defend, Subramonium Prasad, J., expressed that, the tenant cannot merely make allegations that the landlord has other premises without producing some material to substantiate the same. 

High Court added to its observations that, it is a well-settled position that a tenant may take all kinds of pleas in its application for leave to defend but the Rent Controller has to ensure that the purpose of Chapter III of the Rent Control Act is not defeated by granting leave to defend in every frivolous plea raised by the tenant which may result in protracting the case. 

Read here: https://www.scconline.com/blog/post/2022/05/27/once-tenant-starts-paying-rent-can-he-she-turn-around-and-challenge-title-of-landlord-delhi-high-court-law-legalnews-legal-updates/ 


Legislations


Motor Vehicles (Third Party Insurance Base Premium and Liability) Rules, 2022 

On May 25, 2022, the Ministry of Road Transport and Highways, in consultation with the Insurance Regulatory and Development Authority of India, has published Motor Vehicles (Third Party Insurance Base Premium and Liability) Rules, 2022 in order to revise the base premium for third party insurance for unlimited liability. The rules shall come into force on 1st June, 2022. 

Read here: https://www.scconline.com/blog/post/2022/05/26/base-premium-for-third-party-insurance-for-unlimited-liability-revised-vide-motor-vehicles-third-party-insurance-base-premium-and-liability-rules-2022/  

IFSCA (Fund Management) Regulations, 2022 

The International Financial Services Centers Authority has revised the Application and Registration Fee under IFSCA (Fund Management) Regulations, 2022. 

Read here: https://www.scconline.com/blog/post/2022/05/23/fee-structure-under-ifsca-fund-management-regulations-2022-revised/  


New Releases 


 

Case BriefsSupreme Court

Supreme Court: In a landmark case, the 3-judge Bench comprising of L. Nageswara Rao, B. R. Gavai and A.S. Bopanna, JJ., upheld sex workers right to identity and issued detailed directions for their protection and upliftment.

The directions ranged from prohibiting police actions against consenting sex workers, police and medical protections for sex workers being victim of sexual assault, holding media accountable for voyeurism on revealing identity of sex workers to directing UIDAI to issue Adhar Card for them without insisting on address proof.

The Court invoked Article 142 of the Constitution to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role. The Court remarked,

“The constitutional regard for human decency and dignity has been explicitly incorporated into Article 21 by this Court. Needless to say, this basic protection of human decency and dignity extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children.”

Constitution of Special Penal

By an order dated 19-07-2011, the Court had constituted a panel with Mr. Pradip Ghosh as the Chairman, Mr. Jayant Bhushan, Senior counsel, Usha Multipurpose Co-operative Society through its President/Secretary, Durbar Mahila Samanwaya Committee through its President/Secretary, and Roshni through Ms. Saima Hasan to assist and advise the Court for giving suitable directions in the matter. The terms of reference made to the panel were:

“(1) Prevention of trafficking,

(2) Rehabilitation of sex workers who wish to leave sex work, and

(3) Conditions conducive for sex workers who wish to continue working as sex workers with dignity.”

Later on, by an order dated 26-07-2012, the Court had modified the third term of reference to conditions conducive to sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution of India.

Penal Report and Recommendations

After conducting a detailed discussion with all the concerned stakeholders, the Panel submitted a comprehensive report and the recommendations made by the panel were considered by the Union Government and a draft legislation was published incorporating the recommendations so made. Thereafter, periodically adjournments were taken by the Union government on the ground that the Bill is on the anvil.

Noticeably, the panel had recommended in respect of the third term of reference in the following terms:

  • “When it is clear that the sex worker is an adult and is participating with consent, the police must refrain from interfering or taking any criminal action. The panel noted, There have been concerns that police view sex workers differently from others. When a sex worker makes a complaint of criminal/sexual/any other type of offence, the police must take it seriously and act in accordance with law.
  • Any sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault, including immediate medical assistance, in accordance with Section 357C of the CrPC, 1973 read with “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence”, Ministry of Health and Family Welfare (March, 2014).
  • Whenever there is a raid on any brothel, since voluntary sex work is not illegal and only running the brothel is unlawful, the sex workers concerned should not be arrested or penalised or harassed or victimised.
  • The State Governments may be directed to do a survey of all ITPA Protective Homes so that cases of adult women, who are detained against their will can be reviewed and processed for release in a time-bound manner.
  • Police should treat all sex workers with dignity and should not abuse them, both verbally and physically, subject them to violence or coerce them into any sexual activity.

“It has been noticed that the attitude of the police to sex workers is often brutal and violent. It is as if they are a class whose rights are not recognised. The police and other law enforcement agencies should be sensitised to the rights of sex workers who also enjoy all basic human rights and other rights guaranteed in the Constitution to all citizens.”

  • The Press Council of India should be urged to issue appropriate guidelines for the media to take utmost care not to reveal the identities of sex workers, during arrest, raid and rescue operations, whether as victims or accused and not to publish or telecast any photos that would result in disclosure of such identities.
  • The newly introduced Section 354C, IPC which makes voyeurism a criminal offence, should be strictly enforced against electronic media, in order to prohibit telecasting photos of sex workers with their clients in the garb of capturing the rescue operation.
  • Measures that sex workers employ for their health and safety (e.g., use of condoms, 12 etc.) must neither be construed as offences nor seen as evidence of commission of an offence.
  • The Central Government and the State Governments must involve the sex workers and/or their representatives in all decision-making processes, including planning, designing and implementing any policy or programme for the sex workers or formulating any change/reform in the laws relating to sex work.
  • The Central Government and the State Governments should carry out workshops for educating the sex workers abut their rights vis-a-vis the legality of sex work, rights and obligations of the police and what is permitted/prohibited under the law. Sex workers can also be informed as to how they can get access to the judicial system to enforce their rights and prevent unnecessary harassment at the hands of traffickers or police.
  • No child of a sex worker should be separated from the mother merely on the ground that she is in the sex trade. Further, if a minor is found living in a brothel or with sex workers, it should not be presumed that he/she has been trafficked. In case the sex worker claims that he/she is her son/daughter, tests can be done to determine if the claim is correct and if so, the minor should not be forcibly separated.”

Directions by the Court

Considering that no legislation has been made till date even though the recommendations were made by the Panel in the year 2016, the Court exercised its powers under Article 142 of the Constitution to implement the abovementioned recommendations. Accordingly, the State Governments/ UTs were directed to act in strict compliance of the recommendations by the panel. Similarly, the competent authorities under the Immoral Traffic (Prevention) Act, 1956 were directed to comply with the provisions of the Act while the Union Government was directed to file its response to the recommendations made by the panel within a period of six weeks. The Court added,

“It need not be gainsaid that notwithstanding the profession, every individual in this country has a right to a dignified life under Article 21 of the Constitution of India. The Constitutional protection that is given to all individuals in this country shall be kept in mind by the authorities who have a duty under Immoral Traffic (Prevention) Act,1956.”

Aadhaar Card for Sex Workers

With regard to non-issuance of Aadhaar Cards to sex workers as they were unable to produce proof of their residence, earlier, the Court had issued notice to UIDAI and sought its suggestions in respect of waiving the requirement of residence proof for the sex workers. The UIDAI had proposed that sex workers who are on NACO’s list can be issued Aadhar Cards without having to submit a residence proof, provided a ‘proforma certificate’ is submitted by a Gazetted Officer at NACO (National AIDS Control Organisation) or the State Health Department certifying the particulars of the applicant.

Some suggestions had been made by the organisations representing sex workers for the procedure to be followed by UIDAI; i.e. the procedure to obtain Adhar by sex workers should be publicize through outreach under the Targetted Intervention Programmes and issuance of the Adhar Cards should not be restricted to sex workers on the NACO list but also be extended to those who are identified by CBOs after verification. Since UIDAI had accepted the given suggestions, the Court directed that Aadhar Cards shall be issued to sex workers. The Court emphasized,

“There shall be no breach of confidentiality in the process, including assignment of any code in the Aadhar enrolment numbers that identify the card holder as a sex worker.”

The matter is listed on 27-07-2022 for further hearing.

[Budhadev Karmaskar v. State of W.B., 2022 SCC OnLine SC 704, order dated 19-05-2022]


Kamini Sharma, Editorial Assistant has put this report together


Case Briefs

The National Human Rights Commission, India has taken a suo-motu cognizance of a media report of the incident where a dalit man was allegedly forced to rub his nose in his own spit in front of a village Sarpanch and locals in Kendrapada district of Odisha.

The Commission has issued notice to the Odisha Chief Secretary calling for a report within six weeks including status of investigation of the case, which has been reportedly registered by the police, as well as the status of statutory relief paid to the victims.

Examining the contents of the news report, the Commission has observed that the issues raised are of a very serious nature and the right to dignity of the victims have been grossly violated.

As per the media report, the incident occurred when the Sarpanch of Tikhiri village in Bhubaneswar visited the victim’s house seeking donations for a temple. The man reportedly said that he had already donated an amount, which made the Sarpanch angry. He further allegedly abused him and his wife in front of locals. An FIR has been reportedly registered under various sections of the IPC and under relevant provisions of the Protection of the Scheduled Castes & the Scheduled Tribes Act, 1989.


National Human Rights Commission

[Press Release dt. 22-4-2022]

Case BriefsSupreme Court

Supreme Court: The bench of Indira Banerjee and JK Maheshwari, JJ has given split verdict on the issue as to whether the Special Court is debarred from taking cognizance of an offence under Section 23 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and obliged to discharge the accused under Section 227 CrPC, only because of want of permission of the jurisdictional Magistrate to the police, to investigate into the offence.

Factual Background

The Court was hearing the appeal is against a judgment by the High Court of Karnataka, upholding an order dated 19th April 2018 passed by the Principal District Judge, Uttar Kannada, Karwar, taking cognizance against the Appellant of offence under Section 23 of POCSO.

On or about 27th October 2017, a news report was published in the Newspaper, Karavali Munjavu, regarding the sexual harassment of a 16 year old girl. On or about 30th October 2017, the victim’s mother lodged a complaint, inter alia, against the appellant i.e. Editor of the said Newspaper for disclosing the identity of the victim under Section 23 of POCSO that deals with the procedure to be followed by the Media while reporting the POCSO related cases.

The Appellant filed an application for discharge under Section 227 of the Cr.P.C. on the purported ground that an offence under Section 23 of POCSO being non-cognizable, the police could not have investigated the offence without obtaining an order of the Magistrate under Section 155(2) of the Cr.P.C. The Trial Court dismissed the application of the Appellant, whereupon the Appellant filed a Criminal Petition in the High Court under Section 482 of the Cr.P.C.

The High Court dismissed the Criminal Petition, holding that the non obstante provision of Section 19 of POCSO overrides the provisions of the Cr.P.C., including Section 155 thereof. The High Court refused to quash the proceedings initiated against the Appellant under Section 23 of POCSO.

Relevant Provision under POCSO Act

  1. Section 23 deals with the procedure to be followed by the Media while reporting the POCSO related cases.
  2. Section 19(5) provides that where the Special Juvenile Police Unit or local police is satisfied that the child against whom an offence has been committed, is in need of care and protection it shall, after recording reasons in writing, make immediate arrangements to give the child such care and protection including admitting the child into a shelter home or hospital within 24 hours of the report.
  3. Section 19(6) requires the Special Juvenile Police Unit or local police, as the case may be, to report information to the Child Welfare Committee and the Special Court or where no Special Court has been designated to the Court of Sessions without unnecessary delay, within 24 hours from the receipt of information. The report is to include need, if any, of the concerned child for care and protection and steps taken in this regard.
  4. Section 31 of POCSO, provides that the provisions of the Cr.P.C., including provisions as to bail and bonds are to apply to the proceedings before a Special Court, and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting prosecution before a Special Court shall be deemed to be a Public Prosecutor.
  5. Section 33(9) of POCSO confers powers of a Court of Sessions on the Special Court to try offences under POCSO, also has nothing to do with the reporting or investigation of an offence. Subject to the provisions of POCSO, the Special Court is to try an offence under POCSO, as if it were a Court of Sessions “as far as may be”, in accordance with the procedure 17 specified in the Cr.P.C. for trial before a Sessions Court. Neither Section 31 nor Section 33(9) of POCSO makes any reference to investigation.

Relevant provisions of CrPC

  1. Section 4(1) requires all offences under the Penal Code, 1860 to be investigated, inquired into, tried or otherwise dealt with according to the CrPC.
  2. Section 4(2) requires all offences under any other law to be investigated, inquired into, tried or otherwise dealt with according to the provisions of the CrPC, subject to any enactment for the time being in force, regulating the manner and place of investigating, inquiring into, trying or otherwise dealing with offences.
  3. Section 5 categorically states that nothing in the CrPC shall, in the absence of a specific provision to the contrary, affect any special law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed by any other law for the time being in force.
  4. As per Section 155(2), for non-cognizable offence, the order is required to be taken from the Magistrate.

Justice Banerjee’s opinion

Banerjee, J refused to accept the argument of the Appellant that the proceedings were vitiated and liable to be quashed or the Appellant was liable to be discharged without trial, only because of want of prior permission of the jurisdictional Magistrate to investigate into the alleged offence.

On a combined reading of Sections 4(1) and (2) with Section 5 of the Cr.P.C., all offences under the IPC are to be investigated into, tried or otherwise dealt with in accordance with the provisions of the Cr.P.C. and all offences under any other law are to be investigated, inquired into, tried or otherwise dealt with, according to the same provisions of the Cr.P.C., subject to any enactment for the time being in force, regulating the manner of investigating, inquiring into, trying or otherwise dealing with such offences. POCSO is a special law for protection of children against sexual abuse.

Applying the well settled principle that legislative intent is to be construed from the words used in the statute, as per their plain meaning, Banerjee. J observed that had Legislature intended that the CrPC should apply to investigation of an offence under Section 23 of POCSO, would specifically have provided so. The expression “investigation” would, as in Section 4(1) or (2) of the CrPC, have expressly been incorporated in Section 31 or Section 33(9) or elsewhere in POCSO.

She explained that the language and tenor of Section 19 of POCSO, that deals with reporting of offence, and sub-sections thereof makes it absolutely clear that the said Section does not exclude offence under Section 23 of POCSO. This is patently clear from the language and tenor of Section 19(1), which reads “…. any person who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed……”. The expression “offence” in Section 19 of POCSO would include all offences under POCSO including offence under Section 23 of POCSO of publication of a news report, disclosing the identity of a child victim of sexual assault.

Banerjee, J was of the opinion that a child against whom offence under Section 23 of POCSO has been committed, by disclosure of her identity, may require special protection, care and even shelter, necessitating expeditious investigation for compliance of sub-sections (5) and (6) of Section 19 of POCSO.

“POCSO not only protects children from sexual offences but also protects the interests of children in general, as victims as well as witnesses. The right of a child to dignity not only requires that the child be protected from offences of sexual assault, sexual harassment and pornography but also requires that the dignity of a child be safeguarded. Disclosure of the identity of a child who is a victim of sexual offences or who is in conflict with the law is in fundamental breach of the right of the child to dignity, the right not to be embarrassed.”

Justice Maheshwari’s Opinion

Under the POSCO Act, it is not clear all the offences under the said Act are cognizable or some are non-cognizable. However, the Court may have to take the assistance from the provisions of CrPC on the said issue.

The offence under Section 23 is non-cognizable and Section 19 or other provisions of POCSO Act do not confer power for investigation except to specify the manner of reporting the offence. However, in absence of having any procedure for investigation under the POCSO Act, either for cognizable or non-cognizable offences, as mandated by sub-section (2) of Section 4 of CrPC, the procedure prescribed in CrPC ought to be followed in the matter of investigation enquiring into and trial. Section 5 of CrPC is a saving clause by which the procedure prescribed in the special enactment will prevail otherwise in absence of the provision and the procedure specified in CrPC may be applicable.

To state that all offences under POCSO Act are cognizable, would not be justified without taking note of the provisions of CrPC. It is true that to decide the cognizability and non-cognizability, the maximum sentence prescribed for the offence would be taken into consideration, but if the sentence prescribed for the offence is less than 3 years then those offences of POCSO Act would be non-cognizable. It is clarified, Section 19 of the POCSO Act overrides the provisions of Cr.P.C. only to the extent of reporting the matters to the police or SJPU and other ancillary points so specified in Section 19.

Therefore, the procedure of Section 155(2) is required to be followed in an offence of POCSO Act under Section 23 which is non-cognizable and the Special Court is required to look into the procedure followed in the investigation. As per Section 155(2), for non-cognizable offence, the order is required to be taken from the Magistrate but in the light of Sections 2(l) and 28 of POCSO Act, the Special Courts are required to be designated to deal with offences under POCSO Act and they have been authorized under Section 33, conferring a power to such Special Courts to take cognizance. Therefore, Maheshwari, J was of the opinion that the word used in Section 155(2) be read as “Special Courts” in place of “Magistrate”, which may take cognizance of any offence under POCSO Act.

Conclusion

In view of the split verdict in the case at hand, the matter will now be placed before a larger bench.

[Gangadhar Narayan Nayak v. State of Karnataka, 2022 SCC OnLine SC 337, decided on 21.03.2022]


For appellant: Senior Advocate Devdutt Kamat

Case BriefsForeign Courts

Constitutional Court of South Africa: The Bench of Victor AJ (Jafta J, Khampepe J, Madlanga J, Majiedt J, Mhlantla J, Theron J and Tshiqi J concurring) and Mogoeng CJ (Mathopo AJ dissenting) expressed that,

Children born to parents outside the marital bond are blameless, yet the retention of Section 10 of the Act serves to harm children born outside of wedlock. The status of being born out of wedlock, in effect, penalises the child and the unmarried father, and of course the mother too. This differential treatment of children born out of wedlock is invidious and unconstitutional.

Crux of the Matter

A surname connects us to our heritage and roots us in history and family tradition. Despite South Africa having one of the most progressive Constitutions in the world, there remains a piece of legislation in which the registration of children born out of wedlock is classified as a separate category.

Section 10 of the Births and Deaths Registration Act4 (Act) bears the heading “Notice of birth of child born out of wedlock” and provides for a bifurcated registration procedure between children born in and out of wedlock.

Issue in the present case was the interplay between Sections 9 and 10 of the Act

Lets’ have a look at the provisions.

Section 9 of the Act provides for notice to be given of a child born alive in the following circumstances:

“(1) In the case of any child born alive, any one of his or her parents, or if the parents are deceased, any of the prescribed persons, shall, within 30 days after the birth of such child, give notice thereof in the prescribed manner, and in compliance with the prescribed requirements, to any person contemplated in section 4.

(1A) The Director-General may require that biometrics of the person whose notice of birth is given, and that of his or her parents, be taken in the prescribed manner.

 (2) Subject to the provisions of section 10, the notice of birth referred to in subsection (1) of this section shall be given under the surname of either the father or the mother of the child concerned, or the surnames of both the father and mother joined together as a double barrelled surname.

 (3A) Where the notice of a birth is given after the expiration of 30 days from the date of birth, the birth shall not be registered, unless the notice of the birth complies with the prescribed requirements for a late registration of birth.”

 Section 10 of the Act provides:

 “(1) Notice of birth of child born out of wedlock shall be given—

 (a) under the surname of the mother; or

 (b) at the joint request of the mother and of the person who in the presence of the person to whom the notice of birth was given acknowledges himself in writing to be the father of the child and enters the prescribed particulars regarding himself upon the notice of birth, under the surname of the person who has so acknowledged.

(2) Notwithstanding the provisions of subsection (1), the notice of birth may be given under the surname of the mother if the person mentioned in subsection (1)(b), with the consent of the mother, acknowledges himself in writing to be the father of the child and enters particulars regarding himself upon the notice of birth.”

The array of difficulties arises from Section 10 of the Act, firstly by the unmarried fathers in registering the births of their children in their own surnames, if the consent of the mothers had not been obtained or if the mothers were unavailable.

Secondly, there is a problem of undocumented mothers who live and give birth to children in South Africa and are unable to register the births of their children.

Thirdly, as a result of the requirement that parents who are non-South African citizens must produce a certified copy of a valid passport or visa.

The Acts and its Regulations make no provision for the scenario where one of the parents is a South African citizen and the other is a foreign national who does not have a valid passport or visa.

The present matter required analysis to determine whether Sections 9 and 10 further the constitutional goal of equality and dignity for unmarried parents and their biological children.

How did the above issues arise?

Respondents 3 and 4 married in the Democratic Republic of Congo in accordance with the culture and customs of respondent 4, a citizen of the DRC. The said marriage was not registered because customary marriages are not registered in the DRC. Two children were born, one of whom was their daughter, born in Grahamstown. Before her birth, respondent 4 travelled to and from South Africa on a visitor’s visa, and shortly before the daughter’s birth, respondent 4’s visa got expired while in South Africa and due to her being in the advanced stage of pregnancy, she could neither apply for a new visa nor travel back to DRC.

The birth of the daughter could not be registered as respondent 4 was not in possession of a valid visa or permit and could not comply with Regulations 3(3)(f),6 4(3)(f)7 or 5(3)(f),8 regardless of the fact that their daughter was a South African citizen.

Until respondent 4 complied with regulations, her daughter’s birth could not be registered and further, the department refused to recognize their customary law marriage, hence the daughter had to be treated as a child born out of wedlock.

Analysis and Discussion

In Court’s opinion, Section 10(1)(a) does enable an unmarried father to give notice of birth without the mother’s consent or presence. The only limitation imposed by Section 10 (in its entirety) relates to the father’s capacity to confer his surname on the new-born child. As things stand, an unmarried father (unlike a married father) can only confer his surname when giving notice of birth if he follows the procedures set out in sub-sections 10(1)(a) and 10(1)(b).

Unmarried fathers’ rights to equality and non-discrimination

Section 10 of the Act undermines the role an unmarried father can play in the naming aspect. The parental rights of the unmarried father are conditional in the sense that they are dependent on the status of their relationship with the mothers.

Further, the said Section provides for differential treatment of an unmarried father. The Children’s Act recognises the role of both parents in bringing up a child. It is both parents that bear the primary responsibility to care for their child, as is provided for in the Children’s Act. And it is a child’s right to bask in the parenting of both parents, irrespective of their marital status. Section 10 is problematic because it perpetuates stereotypical gender roles and the assumption that child-care is inherently a mother’s duty.

The unmarried father and the child of unmarried parents are a vulnerable group who are affected by the discrimination.

 It was clear that Section 10 constitutes unfair discrimination against unmarried fathers on the basis of sex, gender and marital status. Furthermore, the said discrimination cannot be justified when considering the egregious impact, it had on:

(i) an unmarried father’s dignity;

(ii) the manner in which it compromises his relationship with his newly born child; and

(iii) the way it entrenches sexist and gendered stereotypes about the parental role of father’s vis à vis mothers.

Unmarried fathers’ right to dignity

The Bench stated that the unmarried father, in asserting his right to register his child, is entitled to the recognition and affirmation of his dignity.

Court added that,

“…differential treatment of children born out of wedlock is invidious and unconstitutional. This differential treatment cannot be justified.”

The child’s right to equality and to be free from unfair discrimination

The section sediments the long-held distinction between “legitimate” and “illegitimate” children in our law which is abhorrent to our constitutional values of human dignity, ubuntu and substantive equality.

Remedy

The applicant submitted that in the present matter, appropriate relief demanded more than a mere declaration that the impugned provisions were inconsistent with the Constitution and therefore invalid.

The finding of unconstitutionality means that this Court ought to declare Section 10 invalid to the extent that it limits the right of unmarried fathers to give notice of the birth of their child in their surname thereby unfairly discriminating against children born to unmarried parents.

In view of the above, Section 10 was declared unconstitutional. In addition, however, the proviso in Section 9(2) which states that the provision is “subject to the provisions of section 10” must consequently also be severed, but the rest of Section 9 remains intact.

MOGOENG CJ (Mathopo AJ dissenting)

An unmarried father was not precluded from registering his child. On the contrary, he could even register the child under his surname or under a double-barrelled surname. The only difference was that the impugned provisions prescribed that that be conditional upon compliance with certain requirements. The central or dominant feature of those differential dispensations was that unlike in the case of a married man, the mother of the child had to signify approval. The contention was that because they were both fathers they should without more enjoy the exact same entitlements. That, therefore, was a demand for unbridled or absolute equality or identical treatment in all circumstances purely on the basis that they were after all men and fathers. Failure to adopt that approach did, in the view of the applicant constitute unfair discrimination on the basis of marital status, sex and gender and was detrimental to the best interests of a child.

There was therefore nothing really about the said provisions that stood in the way of the remedy sought by the “unmarried” parents.

Adding to the above, it was expressed that the Act, Sections 9 and 10 in particular, must thus be understood within the context of the ease with which fatherhood is ascertainable in the case of a married couple, the legal obligations that flow to a child by operation of the law and the risks that flow from allowing any man known or claiming to be the father to register that child’s birth without the mother’s consent.

While it is true that the Act does not accord unmarried fathers the unconditional right to register the birth of their children, that denial constitutes discrimination and does in reality constitute a disadvantage, that is a consequence of their choice to remain unmarried. The Act cannot therefore be said to impair their rights to equality and dignity or sense of equal worth. It does nothing to preclude anybody from getting married and accessing the legal rights, privileges and entitlements that flow from marriage.

Right to Dignity

An unmarried man’s right to equality and dignity in relation to a child is worth much more than the entitlement to register the birth of a child and attach his surname to the child. And the right to dignity cannot be adversely affected only because an unmarried father has certain requirements to meet in order to qualify for the entitlement to register his child in the name of the mother or under his surname.

Best interests of a child

One of the inherent dangers of giving carte blanche to any man, who is or claims to be the father of the child but is unmarried to the mother, to register the birth of a child without the mother or a verifiable and reliable next-of-kin confirming his fatherhood and parental credentials, is human trafficking.

Further, it was added on careful analysis, that,

A woman and a man who are either in an unformalised relationship,  and only got intimate once or a few times resulting in the birth of a child, or a rapist who has subsequently developed a curious interest in the child born out of his criminal and traumatic self-imposition on the woman all fall in the same category of unmarried fathers. That does not or ought not to conduce to the ready acceptance of a child being registered in the name of a man who claims to be the father, without any or particular regard for the views or consent of the one who carried the pregnancy through to birth.

Hence, Section 10 is fundamentally in the best interests of a child and gives recognition to the constitutional demand to treat those interests as paramount.

Conclusion

A reading of Sections 9 and 10 in a way that keeps them within constitutional bounds, does not expose a child to known or foreseeable risks. It protects and advances the best interests of a child and recognises the paramountcy of those interests. Sections 9 and 10 should thus be left intact.


Order


The declaration of constitutional invalidity of Section 10 of the Births and Deaths Registration Act 51 of 1992 (Act) by the Full Court of the High Court of South Africa, Eastern Cape Division, Grahamstown, is confirmed.

(a) It is declared that Section 10 of the Act is invalid in its entirety and consequently severed from the Act.

(b) The proviso in Section 9(2) of the Act stating that the provision is “subject to the provisions of Section 10” is severed from Section 9(2) by reason of the declaration of constitutional invalidity of Section 10.[Center for Child Law v. Director-General: Dept. of Home Affairs, [2021] ZACC 31, decided on 22-09-2021]


Advocates before the Court:

For the Applicant: J Bhima and N Kekana instructed by Lawyers for Human Rights

For the First and Second Respondents: I Jamie SC and S Freese instructed by State Attorney, Gqeberha

Case BriefsHigh Courts

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

Facts

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

Issues

The issues before this Court for consideration are:

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

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

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

Observations

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

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

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

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

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

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

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

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

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


Appearances

For Petitioner(s): Mr. Gajendra Panwar

For Respondent(s): Mr. Arun Kumar


Arunima Bose, Editorial Assistant has reported this brief. 

Case BriefsForeign Courts

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

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

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

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

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

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

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

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

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


Sucheta Sarkar, Editorial Assistant has reported this brief.


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

Case BriefsForeign Courts

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

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

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

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

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

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

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

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

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

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

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


Sucheta Sarkar, Editorial Assistant has put this story together


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