Case BriefsHigh Courts

Two Finger test Held — Unconstitutional

Gujarat High Court: A Division Bench of J.B. Pardiwala and Bhargav D. Karia, JJ., while deciding  the two clubbed appeals, held that,

“Two-finger test is unconstitutional. It violates the right of the victim to privacy, physical and mental integrity and dignity.”

Court while analysing the present set of appeals stated that, it is a very unique acquittal appeal.

In the present case, two appeals have been combined.

The accused has been convicted for the offences punishable under Sections 366 and 363 of the Penal Code, 1860. Trial Court acquitted the accused for the charge of rape under Section 376 of IPC.

Prosecutions’ Case

While the victim was on her way to answer nature’s call early in the morning, she was hit by the accused with a weapon and forcefully taken away by him. While the victim was in custody and confinement of the accused, she was ravished forcefully.

It has been stated that the victim went missing on 26-03-1994, but the FIR lodged by the mother was on 10-04-1994. Further, the investigation revealed that the victim was confined at the house of the brother of the accused. Once the accused was arrested by the police at the stated place, the victim and the accused were thereafter sent for medical examination.

Through the birth certificates and other relevant documents, it was found that the victim was a minor at the date of the alleged offence, i.e. she was less than 16 years of age.

On noting the oral and documentary evidence, the trial court held the accused guilty of offences punishable under Sections 363 and 366 of Penal Code, 1860. But the trial court acquitted the accused of the charge of rape under Section 376 IPC on an erroneous assumption that the victim was major on the said date of offence.

Analysis of the Court

As stated earlier, the Court found the present set of appeals as a very “unique acquittal appeal”.

It was noted that, at the time when the trial court heard the prosecution and the defence on the point of the sentence that the trial court realised that it had committed a mistake in calculating the age of the victim. Trial Court acknowledged its mistake, but declined to do anything in the matter, as the order of acquittal was already pronounced.

Point about the “Two-Finger Test”

Court noted very disturbing contents in the medical certificate of the victim, wherein it appeared that in the course of the medical examination, the two-finger test was conducted.

“The two-finger test also known as the PV (Per Vaginal) refers to an intrusive physical examination of a woman’s vagina to figure out the laxity of vaginal muscles and whether the hymen is distensible or not. In this, the doctor puts two fingers inside the woman’s vagina and the ease with which the fingers penetrate her are assumed to be in direct proportion to her sexual experience. Thus, if the fingers slide in easily the woman is presumed to be sexually active and if the fingers fail to penetrate or find difficulty in penetrating, then it is presumed that she has her hymen intact, which is a proof of her being a virgin.”

Adding to the above, Court also stated that the two-finger test is one of the most unscientific methods of examination that is used in the context of sexual assault and has no forensic value. Section 155 of the Indian Evidence Act, does not allow a rape victim’s credibility to be compromised.

To add to the analysis, Court while placing their concern with regard to the “two-finger test” also stated that,

“Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender-based violence.”

Referring to the Supreme Court case in, Lillu v. State of Haryana, (2013) 14 SCC 643, wherein it was held that,

“…A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honour, reputation and chastity.”

 “…two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity.”

 Learned APP, submitted he is not sure whether the State of Gujarat has issued any directions to do away with the Per-Vaginum examination – Two-Finger Test.

 Endeavour is to remind the trial courts as well as the medical fraternity that the “two-finger test” is unconstitutional, as it violates the right of the victim of sexual assault to privacy, physical and mental integrity and dignity.

Further, the Court found the only question for consideration,

“Whether the trial court committed any error in holding the accused guilty of the offence of kidnapping punishable under Section 366 IPC and acquitting the accused of the offence of rape punishable under Section 376 IPC?

 For the above, High Court stated that, in case if the victim was a consenting party and had some relations with the accused, there is no escape from the fact that the victim was minor.

Once the victim is found to be a minor at the time of commission of offence, more particularly, when it comes to the offence of rape, the accused cannot plead in his defence that the victim was a consenting party.


High Court on perusal of the above stated that unfortunately, the trial court realised its mistake at a very late stage and in such circumstances, the trial court found itself in a helpless situation as it could not have reviewed its order of erroneous acquittal or illegal acquittal so far as the offence of rape was concerned.

Thus, the High Court held the accused to be guilty of the offence of rape punishable under Section 376 of IPC. Conviction appeal preferred by the accused should fail and the acquittal appeal preferred by the State of Gujarat should succeed.  [State of Gujarat v. Rameshchandra Rambhai Panchal, 2020 SCC OnLine Guj 114, decided on 17-01-2020]

Case BriefsHigh Courts

“Constitution of GST Appellate Tribunal is unconstitutional.”

Madras High Court: A Division Bench comprising of S. Manikumar and Subramonium Prasad, JJ., while deciding a writ petition in respect to declaring Sections 109 and 110 of the Central Goods and Services Tax Act, 2017 and Tamil Nadu Goods and Services Tax Act, 2017 held that,

  • Section 110(1)(b)(iii) of the CGST Act which states that a Member of the Indian Legal Services, who has held a post not less than Additional Secretary for three years, can be appointed as a Judicial Member in GSTAT, is struck down.
  •  Section 109(3) and 109(9) of the CGST Act, 2017, which prescribes that the tribunal shall consists of one Judicial Member, one Technical Member (Centre) and one Technical Member (State), is struck down.
  •  The argument that Sections 109 & 110 of the CGST Act, 2017 and TNGST Act, 2017 are ultra vires, in so far as exclusion of lawyers from the scope and view for consideration as members of the tribunal, is rejected. Parliament must consider to amend section for including lawyers to be eligible to be appointed as Judicial Members to the Appellate Tribunal in view of the issues which are likely to arise for adjudication under the CGST Act and in order to maintain uniformity in various statutes.

Facts pertaining to the present case:

Present writ petition was filed for the issuance of a writ declaration in order to declare Sections 109 and 110 of the Central Goods and Services Tax Act, 2017 and Tamil Nadu Goods and Services Tax Act, 2017 as void, defective and unconstitutional.

The above-said sections relate to the constitution of the Goods and Services Tax Appellate Tribunal and the qualification and appointment of members.

Section 109 of the CGST Act, 2017 and the TNGST Act, 2017 lays down the constitution of the Appellate Tribunal and the benches thereof and Section 110 prescribes the qualification of the President and the members of the Appellate Tribunal.

Section 109 of the CGST Act, states that the Government shall on the recommendations of the Council, constitute an Appellate Tribunal, known as the Goods and Services Tax Appellate Tribunal, for hearing appeals against the orders passed by the Appellate Authority or the Revisional Authority.

Section 110 of the Act prescribes the qualification, appointment and conditions of service, etc., of the President and the Members of the Appellate Tribunal. President of the Appellate Tribunal is a retired judge of the Supreme Court of India or a sitting or retired Chief Justice of any High Court or a Judge of a High Court or a retired Judge of a High Court, with not less than five years of service.

 Section 110 (2) prescribes that the President and the Judicial Members of the National Bench and Revisional Benches shall be appointed by the Government of India after consultation with the Chief Justice of India or its nominee.

The present writ petition challenges the validity of Sections 109 and 110 of the CGST Act, 2017 and TNGST Act, 2017, particularly the composition and qualification of the members to the Goods and Services Tax Appellate Tribunal.

Challenges laid down:

 First Challenge – It is to the vires of Section 110 (1) (b) of the CGST Act on the ground of exclusion of lawyers from being eligible to be appointed as a Judicial Member of the Tribunal. The exclusion of lawyers from the zone of consideration as a Judicial Member is violative of Article 14 of the Constitution of India.

Advocates are eligible to be considered as members of various tribunals and there is no justification or reason as to why they should be excluded from the zone of consideration of being appointed as Judicial members under the CGST and TNGST Act.

There has been no valid explanation as to why the CGST Act, 2017 and TNGST Act, 2017 exclude Advocates having more than 10 years of experience, from being considered as Judicial Members of the Tribunal.

Another Challenge- Challenge to the consideration of a Member of the Indian Legal Services who is eligible for being appointed as a member of the Appellate Tribunal has also been placed.

Next Challenge- It is in respect to the Composition of the Appellate Tribunal.

Composition of the Appellate Tribunal of CGST or TNGST, as the case may be, under Sections 109(3) and 109(9) of the CGST Act, 2017 prescribes that the tribunal will consist of one Judicial Member, one Technical Member (Centre) and one Technical Member (State). Thus, there are two Technical Members as against one Judicial Member. The two Technical Members, therefore, can overrule the Judicial Member who will be in minority.

Contentions of the Senior Counsel, Arvind Datar, representing the petitioners:

 He submitted that Section 110 (1) (b) of the CGST Act, 2017 lays down the qualification for appointment of a Judicial Member for Appellate Tribunal excludes advocates.

It is a departure from the existing practice of making Advocates with ten years experience at Bar and Advocates qualified for appointment as a Judge of a High Court, being considered as a Judicial Member of the tribunal.

Senior Counsel, Arvind Datar, placed reliance on the Supreme Court Judgment in R.K. Jain v. Union of India, (1993) 4 SCC 119, wherein the emphasis was on the need for recruitment of members f the Bar to man the tribunal.

“…Judicial review and remedy are fundamental rights of the citizens. The dispensation of justice by the tribunals is much to be desired. We are not doubting the ability of the members or Vice- Chairmen (non-Judges) who may be experts in their regular service. But judicial adjudication is a special process and would efficiently be administered by advocate Judges…”

Further substantiating his submissions, he stated that a lawyer with 10 years of experience in the subject would be in a better place to understand, appreciate and adjudicate the matters, which would be placed before the tribunal compared to a District Judge, who would not have experience at all for selection as a Judicial Member.

Reliance was placed on the decision of the Supreme Court in Madras Bar Association v. Union of India, (2014) 10 SCC 1, wherein it was that,

“…where the prescription of qualification was found by the court, to be not proper and conducive for the proper functioning of the Tribunal, it will result in invalidation of the relevant provisions relating to the constitution of the Tribunal. If the qualifications/eligibility criteria for appointment fail to ensure that the members of the Tribunal are able to discharge judicial functions, the said provisions cannot pass the scrutiny of the higher Judiciary.”

 Section 110 (1) (b) which excludes lawyers from being considered eligible for appointment as Judicial Member of the Tribunal is arbitrary of Article 14 of the Constitution of India.

Counsel for the petitioner reiterated that a District Judge even though be fit to be a Judge of High Court, might not be as oriented to deal with subjects, without having any expertise in the taxation laws.

An officer of the Indian Legal Services would also have no training in law or judicial expertise. Excluding lawyers from the ambit of consideration without any reason whatsoever makes the Section 110(1) (b) as violative of Article 14 of the Constitution of India.

Practice of considering advocates for appointments to specialised tax tribunals have been continued without break from 1941 with the advent of the Income Tax Appellate Tribunal.

 Denying the Advocates even the right of being considered will fall foul of the constitutional protection under Article 14 of the Constitution of India, as it would be capricious and irrational and more so, when there is no reason forthcoming from the respondents as to why lawyers are being excluded and why is there a departure from the norm of considering lawyers eligible to be appointed as Judicial Members of the tribunal.

For challenge in respect to the eligibility of a member of the Indian Legal Service for being considered as Judicial Member, reliance was placed on the Supreme Court decision in Union of India v. R. Gandhi, (2010) 11 SCC 1, to state that persons who have held a Group A post under Central or State Government with experience in the Indian Company Law Service (Legal Branch) and the Indian

Legal Service (Grade I) cannot be considered for appointment as judicial members while dealing with Section 10-FD(2)(c) and (d) of the Companies Act, 2013.

Adding to the above, he stated that Section 110(b)(iii) is per se contrary to the law laid down by the Supreme Court in the said judgment and must be struck down.

Further the Counsel for the petitioner submits that composition of the Benches in which the Technical Members would be in majority is unconstitutional and Section 109 of the CGST Act, 2017 which prescribes that two administrative members as against one judicial member is contrary to mandate of Article 50 of the Constitution of India and such a composition would seriously affect the independence of the judiciary.

Article 50 of the Constitution of India, provides that State shall take steps to separate the judiciary from the executive in the public services of the State.

 If the majority members on the bench are administrative members then Article 50 stands diluted.

In all the cases, which come to the tribunal, the revenue is either respondent or the appellant and that any assessee would not be confident of getting justice because the composition of the tribunal is such, it would give a genuine impression that the tribunal might not be an independent body and that it will only carry out the orders of the Government.

It was also pointed by the Counsel for the petitioner that it is for the first time that a statute provides for a composition of a tribunal where the administrative members exceed the judicial members.

 Judgments of the Supreme Court in Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 and Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17 was relied on.

Rajagopalan, Additional Solicitor General and Aparna Nandakumar, appeared on behalf of the Union of India:

They contended that there is no fundamental right for an Advocate to be considered for appointment as a Judicial Member of the tribunal.

Advocates Act, 1961 does not give any right to an Advocate, to be considered to be appointed as a Judge in a Tribunal and it is for the Government to decide as to whether an Advocate must or must not be considered to be eligible to be appointed as Judicial Member of the tribunal.

Union of India submitted that, since the minimum quorum of two members has already been prescribed under the GST Act, the apprehension entertained by the petitioner herein that there would be preponderance of technical members over judicial member is wholly untenable.


 Bench considered the following issues:

  • Whether the exclusion of advocates from being considered for appointment as a Judicial Member in GST Appellate Tribunal, is violative of Article 14 of the Constitution of India.
  • Whether Section 110 (b)(iii) which makes a member of the Indian Legal Service, eligible to be appointed as a Judicial Member of the appellate tribunal, contrary to the law laid down by the Supreme Court in Union of India v. R. Gandhi, (2010) 11 SCC 1.
  • whether the composition of the National Bench, Regional Benches, State Bench and Area Benches of the GST Appellate Tribunal, which consists of one Judicial Member, one Technical Member (Centre) and one Technical Member (State), by which the administrative members outnumber the judicial member is violative of Articles 14 and 50 of the Constitution of India and the judgments of the Supreme Court of India.

High Court on perusal of the facts and submissions, has put its analysis and observation below:

Even though the constitutional validity of Section 110(1) (b) cannot be struck down on the ground of non-inclusion of advocates as being eligible for being considered for appointment as Judicial Member to the Appellate Tribunal under the CGST or TNGST, yet this court is of the opinion that the Union of India must evaluate as to why it is making a departure from the existing practice. Advocates are eligible to be appointed as Judicial Members in the ITAT which is the oldest Tribunal in the country.

 Senior Counsel Arvind Datar is justified in contending that when the constitution provides that lawyers are eligible to be appointed as Judges of the High Court, then there is no reason to exclude them from being considered for appointment as Judicial Officers.

Judgment of the Supreme Court case in R.K. Jain v. Union of India, it was held that

“…the Members of the tribunal must have a judicial approach and also knowledge and expertise in the particular branch of law.”

 A lawyer practising for 10 years in Taxation would definitely be well-equipped to grapple with the legal issues arising under the Act.

High Court recommends that the Parliament should reconsider the issue regarding the eligibility of lawyers to be appointed as Judicial Members in the Appellate Tribunal.

Further, the Court added in respect to the other challenge of appointment of a person, who is or has been a member of Indian Legal Service and has held a post not less than Additional Secretary for a period of 3 years, is no longer res integra. The issue stand settled.

 In Union of India v. R. Gandhi, (2010) 11 SCC 1, it has been categorically stated that a person who has held a position under the Indian Legal service cannot be considered for appointment as judicial members.

Court agreed with Counsel for the petitioner’s submission that the GSTAT is replacing the CESTAT, Sales Tax/ VAT Tribunals. The composition of GSTAT, therefore, has to be on the same lines.

 Article 50 of the Constitution of India which provides for separation of the judiciary from the executive, must be interpreted in such a way that the dominance of the departmental/technical members, cannot overwhelmingly outweigh the judicial members.

 Tribunals that primarily decide disputes between the State and citizens cannot be run by a majority consisting of non-judicial members.

 Supreme Court in L. Chandrakumar v. Union of India, (1997) 3 SCC 261, after analysing the provisions in S.P. Sampath Kumar v. Union of India, 1987 (1) SCC 124 and M.B.Majumdar v. Union of India, (1990) 4 SCC 501, went on to hold that the tribunals created under Articles 323 and 323-B would not be a substitute for the High Court for the purpose of exercising Articles 226 & 227 of the Constitution of India. If that being so, then and in such cases, in order to maintain the independence of the judiciary, the expert members cannot outnumber the judicial members.

Supreme Court in L. Chandrakumar v. Union of India, (1997) 3 SCC 261 adverted to the Report of the Arrears Committee (1980-90), popularly known as the Manlimath Committee, which has made recommendations regarding functions of tribunals.

It specifically stated that tribunals have not inspired confidence in the public mind and the foremost reason being lack of competence, objectivity and judicial approach.

 High Court added to its observation that in all GST related issues, the litigation shall be between an Assessee and the Govt. and this is yet another reason, that the presence of two members from the Government would create a further apprehension of bias, and lead an Assessee to believe, that perhaps the remedy itself is non-existent.

The issue regarding dominance of the technical members and constitutional validity of the same shall have to be examined keeping in mind the Judgments of the Supreme Court, relating to the importance of the independence of the Judiciary, as well as the manner in which the Parliament could establish Tribunals, to discharge what is essentially a Judicial Function.

Following cases were noted by the Court with respect to the independence of judiciary:

“… To preserve the doctrine of separation of powers, it is necessary that the provisions falling in the domain of judicial field are discharged by the judiciary and that too, effectively.”

Thus, the law has been settled by the Supreme Court, insofar, as the creation of alternative institutions that would exercise judicial function, would be that the alternative institutional mechanism must not be less effective than the High Court.

To be effective as a High Court, would not be limited to having powers akin to High Court, it would also include the ability to exercise judicial function akin to a High Court, in the sense of being impartial and independent.

Even though the judgment of the State Bench or the Area Benches is subject to an appeal to High Court, it is well settled that while giving judicial decisions, Judges should be able to act impartially, objectively and without any bias.

Supreme Court in Manak Lal v. Prem Chand Singhvi, 1957 SCR 575 has observed that when a tribunal or a court decides the matter, the test is not whether, in fact, a bias has affected the judgment. The test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the Tribunal might have operated against him in the final decision of the tribunal.

The Court also stated the fact that the appellate tribunal is constituted also to see whether the legal principles and the decision-making process are correct and fair. The expert members, who are not well trained in the law, cannot be permitted to overrule the judicial member on these aspects.

Hence, the principle which emerges is that while deciding issues as to whether the decision making process by the adjudicating authority or the appellate authority was just, fair and reasonable and to decide issues regarding the interpretation of notifications and sections under the CGST Act a properly trained judicially mind is necessary which the experts will not have. The number of expert members, therefore, cannot exceed the number of judicial members on the bench. [Revenue Bar Assn. v. Union of India, 2019 SCC OnLine Mad 8910, decided on 20-09-2019]

Business NewsNews

As reported by media, Huawei has taken a step forward in the legal battle against the U.S. Government by filing “motion for summary judgment” in order to speed up the process.


In March, Chinese Technology giant “Huawei” had filed a suit against the United States Government alleging that the law that bans government agencies from buying “Huawei’s” equipment is “Unconstitutional”.

The provision on which the lawsuit is based is mentioned under the National Defence Authorization Act and the section which talks about the ban is Section 889 which prohibits executive government agencies from procuring telecommunications equipment from Huwaei and ZTE as mentioned in the Act.

 The Eastern District of Texas has scheduled a hearing on 19-09-2019.

Source: CNBC Markets


Case BriefsHigh Courts

Patna High Court: The Bench of Ahsanuddin Amanullah, J. quashed criminal proceeding filed in the year 2013 under Section 497 of the Penal Code, 1860 against a person accused of adultery, in view of Supreme Court’s decision in Joseph Shine v. Union of India, (2019) 3 SCC 39.

Petitioner herein had filed a complaint case against the opposite party 2 alleging adultery with his wife, wherein the Chief Judicial Magistrate issued summons under Section 497 of the Penal Code, 1860. The said order of cognizance was challenged by opposite party 2 before the Sessions Judge by way of a criminal revision petition, and the order of cognizance was set aside. Aggrieved thereby, the instant application was filed under Section 482 of the Code of Criminal Procedure, 1973 praying for setting aside of order dated 22-09-2014.

Counsel for the parties Mr Prabhu Narayan Sharma (for petitioner), Mr Md. Arif (for State) and Mr Saket Tiwary (for opposite party 2) submitted that the aforesaid issue was no more res integra for the reason that a Constitution Bench of the Hon’ble Supreme Court had held Section 497 IPC to be unconstitutional and has also declared Section 198 CrPC, which deals with the procedure for filing complaint in relation to an offence of adultery, as unconstitutional.

In view of the above, the Court held that cognizance against the opposite party 2 under Section 497 IPC could not be sustained. Thus, the entire criminal proceeding arising out of complaint case was quashed.[Devraj Dev v. State of Bihar, 2019 SCC OnLine Pat 431, Order dated 02-04-2019]

Hot Off The PressNews

Concept Note: Ministry of Home Affairs (MHA) in an order on 20-12-2018 gave a power to 10 Central Agencies of “interception, monitoring and decryption of any information generated, transmitted, received or stored in any computer”.

The said order was given in exercise of the powers under Section 69 (1) of the IT Act, 2000 read with Rule 4 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009.

Further the stated agencies that have been given the power are:

  • Intelligence Bureau;
  • Narcotics Control Bureau;
  • Enforcement Directorate;
  • Central Board of Direct Taxes;
  • Directorate of Revenue Intelligence;
  • Central Bureau of Investigation;
  • National Investigation Agency;
  • Cabinet Secretariat (RAW);
  • Directorate of Signal Intelligence (For service areas of J&K, North-East and Assam only);
  • Commissioner of Police, Delhi

All of the above information states that “not just calls or emails, but any data found on a computer can be intercepted. The agencies will also have powers to seize the devices.”

Advocate ML Sharma has challenged the said order in the Supreme Court of India on grounds of it being unconstitutional and illegal.

[Source: The Hindu]

Case BriefsHigh Courts

Jharkhand High Court: A Single Judge Bench of Aparesh Kumar Singh, J., dismissed a writ petition filed against the order of the respondent authorities whereby petitioner’s claim, for appointment in place of his mother under the Female Voluntary Retirement Scheme, was rejected.

The main issue that arose before the Court was whether the petitioner was entitled to appointment in place of his mother under the Female VRS Scheme.

The Court observed that under the Female VRS Scheme, the female employee under the Coal Company was entitled to take voluntary retirement on attaining a particular age before the normal age of superannuation and nominate one of her dependents for permanent employment in Coal India Limited or its subsidiaries. However, this scheme was declared unconstitutional by a Division Bench of this Court in the case of Sumitra Devi v. Coal India Ltd. Kolkata, L.P.A. No. 340 of 2016. If a scheme is declared unconstitutional then no legally enforceable right could flow from it.

The Court held that since the scheme was declared unconstitutional, no person can claim benefit under such a scheme. The Court held that though the mother of the petitioner had resigned from her duties so that the petitioner could derive the benefits of the scheme since it has been declared unconstitutional, the petitioner cannot be granted any relief. As far as the loss of employment of the petitioner’s mother is concerned, the Court refrained itself from touching upon that aspect since the mother of petitioner was not a party to the instant writ petition. Resultantly, the writ petition was dismissed.[Jitram Manjhi v. Bharat Coking Coal Ltd.,2018 SCC OnLine Jhar 1448, order dated 22-10-2018]

Case BriefsSupreme Court

In the theatre of life, it seems, man has put the autograph and there is no space for a woman even to put her signature. There is inequality on the path of approach to understand the divinity. The dualism that persists in religion by glorifying and venerating women as goddesses on one hand and by imposing rigorous sanctions on the other hand in matters of devotion has to be abandoned.

-CJI Dipak Misra and A.M. Khanwilkar, J.

Notions of “purity and pollution”, which stigmatize individuals, have no place in a constitutional order.

-Dr D.Y. Chandrachud, J.

Hindu deities have both physical/temporal and philosophical form. The same deity is capable of having different physical and spiritual forms or manifestations. Worship of each of these forms is unique, and not all forms are worshipped by all persons.

-Indu Malhotra, J.

Supreme Court: A 5-Judge Constitution Bench, by a majority of 4:1, held not allowing entry to women of the age group of 10 to 50 years in the Sabarimala Temple is unconstitutional. The judgment of the Court was delivered by CJ Dipak Misra for himself and A.M. Khanwilkar, J. While, R.F. Nariman and Dr D.Y. Chandrachud each gave separate concurring opinions. The only lady Judge on the Bench, Indu Malhotra, J. rendered a dissenting opinion.

Background: The instant proceedings arose after a 3-Judge Bench in India Young Lawyers Assn. v. State of Kerala, (2017) 10 SCC 689, keeping in view the gravity of issues involved, referred the matter for consideration by a Constitution bench. The writ petition preferred under article 32 of the Constitution sought issuance of directions against the Government of Kerala and other respondents to ensure entry of female devotees between the age group of 10 to 50 years to the Lord Ayyappa Temple at Sabarimala (Kerala) which has been denied to them on the basis of certain custom and usage; to declare Rule 3 (b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 as unconstitutional being violative of Articles 14, 15, 25 and 51 A(e) of the Constitution and further to pass directions for the safety of women pilgrims. On the other hand, according to the respondents, the said temple, though open to all members of the public regardless of caste, creed, or religion, is a denominational temple which claims the fundamental right to manage its own affairs in matters relating to religion.

Issue: Whether the complete exclusion of women between the ages 10 and 50 from entry, and consequently, of worship in the Sabarimala temple, based upon a biological factor which is exclusive to women only, and which is based upon custom allegedly constituting an essential part of religion, can be said to be violative of their rights under Article 25?

Discussion in relation to right under Article 25(1)

The right to practise religion under Article 25(1), in its broad contour, encompasses a non-discriminatory right which is equally available to both men and women of all age groups professing the same religion. Article 25(1), by employing the expression “all persons”, demonstrates that the freedom of conscience and the right to freely profess, practise and propagate religion is available, though subject to the restrictions delineated in Article 25(1) itself, to every person including women. Women of any age group have as much a right as men to visit and enter a temple in order to freely practise Hindu religion and to exhibit her devotion towards Lord Ayyappa. The term “morality” occurring in Article 25(1) of the Constitution cannot be viewed with a narrow lens so as to confine the sphere of definition of morality to what an individual, a section or religious sect may perceive the term to mean. The notions of public order, morality and health cannot be used as colourable device to restrict the freedom to freely practise religion and discriminate against women of the age group of 10 to 50 years by denying them their legal right to enter and offer their prayers at the Sabarimala temple for the simple reason that public morality must yield to constitutional morality.

Followers of Lord Ayyappa do not constitute a religious denomination

though, the respondents urged that the pilgrims coming to visit the Sabarimala temple being devotees of Lord Ayyappa are addressed as Ayyappans and that they are a religious denomination, was unacceptable. There is no identified group called Ayyappans. Every Hindu devotee can go to the temple. There is no identified sect, Sabarimala temple is a public religious endowment and there are no exclusive identified followers of the cult. Devotees of Lord Ayyappa are just Hindus and do not constitute a separate religious denomination. For a religious denomination, there must be new methodology provided for a religion. Mere observance of certain practices, even though from a long time, does not make it a distinct religion on that account.

Exclusionary Practice- Whether essential practice as per Hindu religion?

What constitutes an essential part of a religion is ascertained with reference to the tenets and doctrines of that religion itself. It had to be determined whether the practice of exclusion of women of the age group of 10 to 50 years is equivalent to a doctrine of Hindu religion or a practice that could be regarded as an essential part of the Hindu religion and whether the nature of Hindu religion would be altered without the said exclusionary practice. the answer to these questions, was in the firm negative. On the contrary, it is an essential part of the Hindu religion to allow Hindu women to enter into a temple as devotees and followers of Hindu religion and offer their prayers to the deity. In the absence of any scriptural or textual evidence, it cannot be accord to the exclusionary practice followed at the Sabarimala temple the status of an essential practice of Hindu religion. By allowing women to enter into the Sabarimala temple for offering prayers, it cannot be imagined that the nature of Hindu religion would be fundamentally altered or changed in any manner.

Conclusions of the matter by the majority is delineated hereinafter:

  1. Custom or usage of prohibiting women between the ages of 10 to 50 years from entering the Sabarimala temple is violative of Article 25(1) and violative of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 made under Article 25(2)(b) of the Constitution. Further, it is also declared that Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 is unconstitutional being violative of Article 25(1) and Article 15(1) of the Constitution of India. (per R.F. Nariman, J.)
  2. Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act. The language of both the provisions, i.e., Section 3 and the proviso to Section 4(1) of the 1965 Act clearly indicate that custom and usage must take space to the rights of all sections and classes of Hindus to offer prayers at places of public worship, (per CJ Dipak Misra and A.M. Khanwilkar,J.)
  3. Devotees of Lord Ayyappa are exclusively Hindus and do not constitute a separate religious denomination. (per CJ Dipak Misra and A.M. Khanwilkar, J.)
  4. Freedom of conscience and the right to freely profess, practise and propagate religion is available, though subject to the restrictions delineated in Article 25(1) itself, to every person including women. (per CJ Dipak Misra and A.M. Khanwilkar, J.)
  5. The exclusionary practise being followed at the Sabarimala temple by virtue of Rule 3(b) of the 1965 Rules violates the right of Hindu women to freely practise their religion and exhibit their devotion towards Lord Ayyappa. (per CJ Dipak Misra and A.M. Khanwilkar, J.)
  6. The practice of exclusion of women of the age group of 10 to 50 years being followed at the Sabarimala temple cannot be regarded as an essential part as claimed by the respondent Board. (per CJ Dipak Misra and A.M. Khanwilkar, J.)
  7. Hindu women constitute a ‘section or class’ of Hindus under clauses (b) and (c) of Section 2 of the 1965 Act. Rule 3(b) of the 1965 Rules enforces a custom contrary to Section 3. This directly offends the right of temple entry established by Section 3. Rules 3(b) is ultra vires the 1965 Act. (per Dr D.Y. Chandrachud, J.)

Indu Malhotra, J., at as many as 10 places in her dissenting opinion, referred to the deity in Sabarimala temple as Naishtik Brahmachari. She expressly mentioned that “Sabarimala temple where Lord Ayyappa is believed to have manifested himself as a Naishtik Brahmachari“. She held that ‘In the case of the Sabarimala Temple, the manifestation is in the form of a ‘Naishtik Brahmachari’. The belief in a deity, and the form in which he has manifested himself is a fundamental right protected by Article 25(1) of the Constitution.

Justice Malhotra was of the view that the right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the petitioner’s personal rights to worship in the Temple have been violated. the petitioners herein did not claim to be devotees of the Sabarimala temple. The absence of this bare minimum requirement must not be viewed as a mere technicality, but an essential requirement to maintain a challenge for impugning practices of any religious sect, or denomination. In the present case, the worshippers of this Temple believe in the manifestation of the deity as a ‘Naishtik Brahmachari’. The devotees of this Temple have not challenged the practises followed by this temple, based on the essential characteristics of the deity.

Therefore, the Writ Petition does not deserve to be entertained for want of standing. The grievances raised are non-justiciable at the behest of the Petitioners and Intervenors involved herein.

The equality doctrine enshrined under article 14 does not override the Fundamental Right guaranteed by Article 25 to every individual to freely profess, practise and propagate their faith, in accordance with the tenets of their religion. The prayers of the Petitioners if acceded to, in its true effect, amounts to exercising powers of judicial review in determining the validity of religious beliefs and practises, which would be outside the ken of the courts. the issue of what constitutes an essential religious practise is for the religious community to decide.

The contention of the learned Amicus Curiae that the Sabarimala Temple would be included within the ambit of ‘places of public resort’ under Article 15(2) cannot be accepted.

The proviso to Section 3 of the 1965 Act carves out an exception to the applicability of the general rule contained in Section 3, with respect to religious denominations, or sect(s) thereof, so as to protect their right to manage their religious affairs without outside interference. Rule 3(b) gives effect to the proviso of Section 3 insofar as it makes a provision for restricting the entry of women at such times when they are not by custom or usage allowed to enter of the place of public worship. The Respondents claim the right to worship in the Sabarimala Temple under Article 25(1) in accordance with their beliefs and practises as per the tenets of their religion. These practises are considered to be essential or integral to that temple. Any interference with the same would conflict with their right guaranteed by Article 25(1) to worship Lord Ayyappa in the form of a ‘Naishtik Brahmachari’.

The worshippers of Lord Ayyappa at Sabarimala Temple constitute a religious denomination, or sect thereof, as the case may be, following the ‘Ayyappa Dharma’. The devotees follow an identifiable set of beliefs, customs and usages, and code of conduct which are being practised since time immemorial, and are founded in a common faith, in any event, Article 290 A does not in any manner take away the denominational character of the Sabarimala Temple, or the Fundamental Rights under Article 26.

The religious practise of restricting the entry of women between the ages of 10 to 50 years, is in pursuance of an ‘essential religious practise’ followed by the respondents. The said restriction has been consistently followed at the Sabarimala Temple, as is borne out from the Memoir of the Survey of the Travancore and Cochin States published in two parts in 1893 and 1901. Any interference with the mode and manner of worship of in present case would impact the character of the Temple. The limited restriction on the entry of women during the notified age group does not fall within the purview of Article 17 of the Constitution.

In the light of all that has been discussed as mentioned hereinabove, as per the majority judgment, the practise of not allowing the entry of women of the age group of 10 to 50 years was held to be unconstitutional being violative of fundamental rights. [Indian Young Lawyers Assn. v. State of Kerala,2018 SCC OnLine SC 1690, decided on 28-09-2018]

Case BriefsSupreme Court

The civility of a civilization earns warmth and respect when it respects more the individuality of a woman. The said concept gets a further accent when a woman is treated with the real spirit of equality with a man. Any system treating a woman with indignity, inequity and inequality or discrimination invites a wrath of the Constitution.

                                                  – Dipak Misra, CJI and A.M. Khanwilkar ,J.

Supreme Court: The 5-Judge Constitution Bench has held section 497 IPC and Section 198 (2) CrPC to be unconstitutional and violative of Articles 14, 15 (1) and 21 of the Constitution. CJ Dipak Misra delivered the leading judgment for himself and A.M. Khanwilkar, J. While R.F. Nariman, Dr D.Y. Chandrachud and Indu Malhotra, JJ., each delivered their separate concurring opinions.

Before the Supreme court, in the writ petition, was the constitutional validity of Section 497 IPC which criminalizes adultery and Section 198 (2) CrPC which provides for offences against marriages. Petitioner submitted that the provision by its very nature is arbitrary and invited the frown of Article 14 of the constitution.

CJ Dipak Misra (for himself and A.M. Khanwilkar) stated that on a reading of the provision, it is demonstrable that women are subordinated to men in as much as it lays down that when there is connivance or the consent of the man (husband), there is no offense. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is the reflection of the social dominance that was prevalent when the penal provision was drafted. It was also noted that the section doesn’t bring within its purview an extramarital relationship with the unmarried woman or a widow. It treats husband of the women to be a person aggrieved for the offense punishable under Section 497. It does not treat the wife of the adulterer as an aggrieved person. In regard to dignity to women and gender equality, it was observed that Section 497 curtails equality to and dignity of women by creating invidious distinctions based on gender stereotypes which creates a dent in the individuality of women. Besides, the emphasis on the element of connivance or consent of the husband tantamount to subordination of women. Therefore we have no hesitation in holding that the same offends Article 21 of the constitution.

In the words of the Court, “treating adultery an offense, we are disposed to think, would tantamount o the State entering into real private realm. Under the existing provision, the husband is treated as an aggrieved person and the wife is ignored as a victim. Presently the provision is reflective of a tripartite labyrinth. A situation maybe conceived of where equality of status and the right to file a case maybe conferred on the wife. In either situation, the whole scenario is extremely private.”

R.F. Nariman, J. In his concurring opinion referred to various religious testaments and texts as also law and judgments of various foreign jurisdictions. He observed that the ostensible object of Section 497, being to protect and preserve the sanctity of marriage, is not, in fact, the object of Section 497 IPC. The sanctity of marriage can be utterly destroyed by a married man having sexual intercourse with an unmarried woman or a widow. Also, if the husband consents or connives at such sexual intercourse, the offence is not committed, thereby showing that it is not sanctity of marriage which is sought to be protected and preserved, but a proprietary right of a husband. Secondly, no deterrent effect has been shown to exist, or ever to have existed, which may be a legitimate consideration for a State enacting criminal law. Also, manifest arbitrariness is writ large even in cases where the offender happens to be a married woman whose marriage has broken down, as a result of which she no longer cohabits with her husband, and may, in fact, have obtained a decree for judicial separation against her husband, preparatory to a divorce being granted. If, during this period, she has sex with another man, the other man is immediately guilty of the offence.

Dr D.Y. Chandrachud, J. also referred to foreign judgments and distinguished authors. Section 497 IPC is destructive of and deprives a woman of her agency, autonomy and dignity. If the ostensible object of the law is to protect the ‘institution of marriage’, it provides no justification for not recognising the agency of a woman whose spouse is engaged in a sexual relationship outside of marriage. She can neither complain nor is the fact that she is in a marital relationship with a man of any significance to the ingredients of the offence. The law also deprives the married woman who has engaged in a sexual act with another man, of her agency. She is treated as the property of her husband. That is why no offence of adultery would be made out if her husband were to consent to her sexual relationship outside marriage. Worse still, if the spouse of the woman were to connive with the person with whom she has engaged in sexual intercourse, the law would blink. Section 497 is thus founded on the notion that a woman by entering upon marriage loses, so to speak, her voice, autonomy and agency. manifest arbitrariness is writ large on the provision.

Indu Malhotra, J., the only woman on the Bench traced the origin of the word adultery from the French language; and discussed the doctrine of coverture, historical background of Section 497 and contemporary international jurisprudence. She observed that the Section is replete with anomalies and incongruities which renders it liable to be struck down as arbitrary and discriminatory.

Resultantly, Section 497 IPC and Section 198(2) CrPC were struck down. And the decisions in Sowmithri Vishnu v. Union of India, 1985 Supp SCC 137 and V. Revathi v. Union of India, (1988) 2 SCC 72 were overruled. Justice Malhotra, in her opinion, delivered, also held W. Kalyani v. State, (2012) 1 SCC 358 as overruled. The petition was accordingly disposed of. [Joseph Shine v. Union of India,(2019) 3 SCC 39, decided on 27-09-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Rajbir Sehrawat, J., dealt with an application under Section 439 of CrPC.

The accused was alleged with carrying psychotropic substance with him and FIR was registered against him under Section 22 of NDPS Act, 1985. After being examined by the Chemical Examiner the substance was found to be Alprazolam after which he was kept in custody. Petitioner contended that he had been falsely implicated and denied the presence of any substance with him. His bail application by virtue of Section 37 of NDPS was rejected by Special Judge. Hence, application under Section 439 was filed before this Court.

Petitioner was in custody for one year four months and sixteen days before filing of this petition. Section 37(1)(b)(ii) contains conditions which should be satisfied by Court before granting bail.  According to this section Court requires to prima facie come to satisfaction that the accused is not guilty of the offence alleged against him. This section seems contrary to the principle of presumption of innocence in favour of the accused until proved otherwise. The second part of the section seems humanly impossible as the Court is required to record a satisfaction that the accused would, likely, commit the offence after coming out of the custody, or would not commit any offence after coming out of the custody.

Thus, Court observed that though this part of the Section seems unconstitutional, Court does not have the domain in this petition to deal with this issue. But observed that it had to comply with conditions of Section 37(1)(b)(ii) before granting bail, therefore, Court dealt with the issue of Whether the procedure being insisted by the State; for its plea of denying the bail to petitioner; is non-discriminatory, rational, reasonable and fair procedure or not. Court was of the view that State erred in the same and after considering the conditions of Section 37(1)(b)(ii) being fulfilled, bail was granted to the petitioner. [Ankush Kumar v. State of Punjab,2018 SCC OnLine P&H 1259, dated 09-08-2018]

Case BriefsHigh Courts

Uttaranchal High Court: A Single Judge Bench comprising of Rajiv Sharma J., decided that the proviso second of the Fundamental Rule 153 of the U.P. Fundamental Rules be struck down as it declines to grant maternity leave to a woman for her third child.

In accordance to the facts of the case, the petitioner was denied for maternity leave on the basis that she had already two living children and she cannot avail the same for her third child, which is in consonance to the second proviso of Fundamental Rule 153 the Financial Hand Book of the U.P. Fundamental Rules.

The High Court on an analysis of the stated Rule along with the Maternity Act, 1961 and Article 42 of the Constitution of India decided that, Fundamental Rule 153 is unconstitutional and there is a dire need to strike it down as neither does the rule supports the spirit of Article 42 nor does it stands in conformity with Section 27 of the Maternity Benefit Act, 1961. Hence, the petitioner in the present matter was provided with maternity leave for her third child. [Urmla Masih v. State of Uttarakhand,2018 SCC OnLine Utt 717, dated 30-07-2018]

High Courts

Bombay High Court: While allowing a writ petition challenging the constitutional validity of the provisions of the Maharashtra Village Panchayats Taxes and Fees (Amendment) Rules, 1999, a division bench of A.S. Oka and A.S. Chandurkar J., struck down Clauses 2, 3, 4 and 5(a) of the Amendment Rules, 1999 as unconstitutional for being discriminatory and violative of Article 14 of the Constitution.

In the instant case, S.S. Patwardhan, the counsel for the petitioner contended that Amendment Rule 1999 replaced the determination of the rate of tax from the capital value or annual letting value of the property to the value of the total area of the building or land in question, which ignored the depreciation in the value of the property and is arbitrary, violative of Article 14 of the Constitution and deserves to be quashed.

The Court observed that the annual letting value is a time based concept of levying such taxes and has been the most accepted method of determination of ratable value, as the age of the construction of the property cannot be ignored. The Court also observed that it is not just to tax two properties at the same rate when one is recently constructed and has more annual letting value than the one which is 25-30 year old in the same area.

The Court made clear that the unequals cannot be treated as equals by the amended method of determining ratable value. The Court held that the amendment made by the State of Maharashtra in the provisions of the Maharashtra Village Panchayats Taxes and Fees Rules, 1960 is discriminatory and violative of the Article 14 of the Constitution and therefore is liable to be stuck down as unconstitutional. Vijay Dinkarrao Shinde v. State of Maharashtra, 2014 SCC OnLine Bom 1667decided on November 10, 2014.