Tag: #Article14

S.no	Contents
1.	Administrative Discretion: What It Is and What It Means
2.	Motives for the Growth of Discretionary Powers
3.	Indian system of administrative discretion
4.	Indian Constitution and Administrative Discretion
5.	Judicial Control
6.	Judicial oversight of the discretionary administrative powers
7.	Judiciary’s Function and Administrative Discretion
8.	Conclusion and Recommendations

Administrative Discretion: What It Is and What It Means

Administrative discretion is the combination of the phrases administrative and discretion. It refers to the discretion that the administration uses to carry out its duties. We’ll talk about discretion first, then we’ll highlight administrative discretion. Discretion is the capacity to make choices. 

Or, to put it another way, the authority to act by their intelligence. Regarding his property, each person is free to donate, sell, or otherwise dispose of it as they see fit. He can make a will if he decides he wants his property to pass down through his ancestors. He can sell his land if he chooses not to pass it down to his ancestors. Nobody is allowed to impede his independence.

Administrative discretion differs from individual discretion. There is no constraint on personal choice. However, administrative discretion means they have the freedom to choose among the available possibilities. 

Lord Cock – Understanding the difference between truth and lies, right and wrong, and reasonable and outrageous behaviour is the science of discretion. They must not carry out their tasks out of self-interest or to satisfy their desires.

The Supreme Court stated in State of Punjab v. Khan Chand^[1] that the question of specifics must be left in the hands of the authorities working by an enactment due to the complexity of the issues that a modern state must deal with. For the sake of exercising the powers granted to them by an enactment, the relevant authorities must be provided discretion.

In governance and law, administrative discretion is the main source of creativity. All administrative actions must be conducted with great caution. It shouldn’t, however, be allowed to run unchecked lest it become arbitrary and undermine the fundamentals of the rule of law.

Administrative discretion is required

When Dicey created the concept of the rule of law, the laissez-faire philosophy was in vogue. The upkeep of peace and order was the sole responsibility of the police state at the time. More and more nations adopted the idea of a welfare state as the philosophy of laissez-faire fell out of favour over time, and there was a pressing need for both social and economic progress. It is now hard to create a government that can run smoothly without giving the executive discretionary power, whether in communist or capitalist regimes.

Motives for the Growth of Discretionary Powers

The growth of administrative discretion is due to a variety of factors. Some explanations are provided below.

1. Today’s administration has challenging and numerous issues that cannot be resolved by a single rule.
2. Because the majority of those issues are brand-new and are emerging for the first time, a general rule cannot be applied to them.
3. Although it is not always feasible to predict every issue when it does arise and cannot be resolved under the circumstances, administrative authorities must be contacted.
4. Each situation has a unique set of circumstances, thus applying one rule to them all could result in injustice.

Administrative authorities are free to use their authority as they see fit, given the situation. They can create and put into practice a variety of rules to address problems that arise abruptly. But once the administration has addressed every issue and changed the exercises and guidelines in those puzzles. It might lead to a lot of problems, some getting worse—

1. No one may be aware of the regulation that will be applied in his case.
2. Because every situation of the same nature will be handled under different rules, it will be a blatant violation of Article 14, Right to Equality.
3. Administrative officials might abuse their discretion in some circumstances.

The administrative authority must be chosen as a general rule based on the aforementioned arguments.

Administrative authorities must be used equally in all of their tasks, whenever practicable. If it doesn’t continue, it can not only lead to administrative violence but also lose the public’s faith. When using administrative discretion, the administration must take into consideration how comparable situations have been handled in the past; otherwise, this would constitute discrimination and put many barriers in the way of inclusive progress.

Indian system of administrative discretion

India has also adopted the welfare state philosophy; thus it was important to grant the administration discretionary powers because there was only one body that could perform all tasks.

Government participation and interference in all public activity that was done after this notion was adopted. The state now considers the development of the public and the state. Before it, the state performed ministerial duties and thought primarily about itself. It wasn’t interested in any public issues. Now that the state is beginning to consider the general people and their facilities, it has placed the full weight of all obligations on the administration. But without the ability to make decisions, it was impossible.

Administrative officials thought they needed the ability to make decisions immediately. They are powerless to act without it. Therefore, the state granted them discretionary powers. However, no contemporary government can run effectively without giving administrative officials some degree of discretion. The occurrence of specific events or the emergence of specific unanticipated situations determines whether or not action is necessary. They must occasionally be decided, and the administrator must reply by making use of the authority delegated to her.

The Supreme Court had ruled that with regards to the administrative discretion granted by law. The exercise of discretion is anticipated to be fair, just, and reasonable; it cannot be motivated by personal desires or interests. It must not be speculative, arbitrary, or illogical. It must fall within the parameters that are reasonable for a genuine individual.

Indian Constitution and Administrative Discretion

If a law is passed by a capable legislature, it cannot be contested on the grounds of purported bad motives or enigmatic intents. Any statute that grants discretion to the executive must include restrictions on how that discretion may be used. Our constitution contains several clauses that deal with discretion. The highest Executive in India is the President. He used a lot of his discretion. If he determines that any of the conditions listed in Article 352 have arisen, he may declare a national emergency. He has the authority to enact and enforce laws. When there is no majority party, he has the authority to dissolve the Lok Sabha. He is free to create the government at his discretion. Additionally, he has the authority to commute sentences or grant pardons to anyone who has been found guilty of crimes under Articles 72 and 161. A state may also be governed by him as president under Article 356. But there are some limitations to all of these powers. These are not random acts of nature. Even the judiciary has used some discretion; when judges sentence guilty parties, they have control over whether to impose a fine, an incarceration term, or both.

Judicial Control

The entire body of law governing the judicial supervision of administrative discretion is predicated on the idea that the courts, who have the final say in controlling the discretionary powers granted to the administration, are where democracy begins. The absence of judicial oversight of administrative activity may encourage executive overreach. The principles of democracy and the idea of the rule of law would be violated in such a situation.

In the case of Kesavananda Bharti v. State of Kerala^[2], it was decided that judicial control is not only a crucial component of the Indian Constitution but also an element of its fundamental framework, which cannot be altered even through a constitutional amendment. The foundation of judicial oversight of administrative action is the idea that all authority must be exerted within the bounds of the law. The courts do not get involved in administrative decisions unless they are arbitrary or otherwise in violation of the Constitution. The courts have appellate and supervisory jurisdiction when deciding whether an administrative action is legal.

Judicial oversight of the discretionary administrative powers

Because the English parliament is supreme, no statute may be challenged by the judiciary on any basis. No statute can be subjected to judicial scrutiny by a court. However, the court can limit administrative discretion under specific circumstances, including abuse of discretion and supra vires.

The United States of America shares India’s practice of judicial review. The court cannot impose its views instead of using discretion in both countries. For the proper application of the Rule of Law, it must be under control. Administrative discretion must be used by the law, not individual discretion. If the administration is given complete freedom to carry out outsider duties, a dictator may be in place. Therefore, it’s important to limit administrative discretion.

Judiciary’s Function and Administrative Discretion

To limit discretion, the court has adopted many new concepts recently. These justifications successfully exercise discretion. These guidelines are the ultra-vires doctrine and the misuse of administrative discretion, an improper motive, an irrelevant factor, malice, unreasonableness, a violation of protocol, and administrative discretion.

In the case of Ram Manohar Lohia v. State of Bihar^[3], the authority was permitted to hold a person under the defense of India provisions to maintain public order. The petitioner was detained to stop him from engaging in a way that might harm the upkeep of law and order. The court overturned the detention order. The court held that the notion of law and order was more expansive than the notion of public order.

In Air India v. Nargesh Meerza^[4], the issue at hand was the legality of a service regulation put out by Air India that called for the termination of an air hostess’ employment upon the occurrence of her first pregnancy.

The regulation was deemed by the Supreme Court to be highly arbitrary, illogical, offensive to the ideals of a civilized society, and interfering with the natural progression of human nature. It is not a disability, but rather a normal side effect of marriage and an unchangeable aspect of married life. Therefore, it has been demonstrated that administrative discretion is necessary today and that its monitoring is essential. Judicial review is a useful tool for managing it. The judicial assessment of administrative discretion thus has this additional dimension. Everyone is protected from discrimination by Article 14.

Conclusion and Recommendations

Although it must be granted, administrative discretion must be constrained. And a limitation needs to be put in place. It implies that a process should be set up for the administration. So let me highlight a few ideas that are provided below.

1. Administrative personnel cannot achieve their goals without judgment. They are unable to realize the welfare notion, hence the state must grant discretion but not access.
2. Some constraints (restrictions) should be put in place when the state grants discretion.
3. The discretion must be removed while adhering to these limitations.
4. The language of the legislation, which grants discretion, must be unambiguous and explicit.
5. Any person who suffers a discretionary injury must be given compensation.
6. Discretion must be subject to court review on more than just a few grounds, such as mala fide intent, arbitrariness, discrimination, and irrelevant consideration. Likewise on legitimate grounds. because there are more and more problems every day.

Administration in a welfare state cannot function effectively without discretion. It is a requirement for the exercise of authority. But it’s also necessary to set boundaries and standards.

Administrative discretion becomes unconstrained and unchecked. Power corrupts, and absolute power corrupts totally, as Aristotle correctly observed. Discretion fosters innovation in government. All administrative decisions must be made with discretion, but to safeguard the notion of the rule of law in administration, it is also necessary to impound decisions and control discretion, lest instances of injustice go unreported and unpunished.

Even though exercising discretion is essential to running the administration, this cannot be done in its entirety. If discretion is unconstrained, authoritarian rule and the rule of law will cease to exist in the nation. No policy can be carried out in the nation without discretion. Democracy won’t be realized if total discretion is granted.

---

Endnotes:

1. State of Punjab v. Khan Chand, AIR 1974 SC 543
2. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; AIR 1973 SC 1461
3. Ram Manohar Lohia v. State of Bihar, [1966] 1 S.C.R. 709
4. Air India v Nergesh Meerza & Ors, 1981 AIR 1829

This article is authored by Karan Gautam, a student of Delhi Metropolitan Education.

S.no	Contents
1.	FACTS AND PROCEDURAL HISTORY
2.	ISSUES RAISED
3.	LAWS RELATED
4.	ANALYSIS
5.	CONCLUSION

CITATION

1984 AIR 469

DATE

6/02/1984.

FACTS AND PROCEDURAL HISTORY

Background of the case

Laxmi Kant Pandey, an advocate practising in the Supreme Court of India, wrote a letter in the form of a complaint regarding various welfare agencies and social organisations indulging in various malpractices through the adoption of Indian children by foreign parents. It was found out that the letter was based on a detailed investigation report carried out by a reputed foreign magazine called “The Mail.” It was alleged that when foreign parents adopt Indian children, they are prone to long, tedious journeys and are ill-treated by placing them in shelter homes. Moreover, they are prone to be treated as beggars and prostitutes and other sexual harassment and exploitations. This letter came to be recognized as a writ petition on 1st September 1982. A notice was issued by the Supreme Court to the Indian Council of Social Welfare, Indian Council of Child Welfare, and the Government of India to assist the court in answering the writ petition by stating the principles and rules to decide the matter of adoption by foreign parents as well as to lay down the guidelines to ensure the maximum safety and welfare of the child while being adopted to foreign countries by foreign parents.

Written Submissions and Later Developments

On 30th September 1982, the first set of reports and written arguments based on the court’s notice was submitted by the Indian Council of Social Welfare. Various essential suggestions and recommendations were laid down in the report, which the court must take care of while setting out the guidelines and rules for approving the adoption law. Many organizations like Barnes Framfoer Allt Adoption (Swedish organization), S.O.S Children’s villages of India, etc., and social welfare communities voluntarily expressed their desire to submit their reports and arguments to help the court and participate in the court’s hearing. 

The writ petition was further adjourned to 9th November 1982 as the court issued an order allowing these organizations to submit their arguments. As Indian Council for Child Welfare and Indian Council for Social Welfare were already engaged in offering the adoption of Indian children abroad, the Supreme Court directed the Union of India to gather the submissions and required information from every other organization except these two. 

Union of India, Indian Council for Child Welfare, and Indian Council for Social Welfare were also asked to provide the court with the names of foreign agencies that are engaged in aiding foreign parents to find Indian children. 

By 9th November 1982, the Supreme Court recognised eight specified institutions and permitted them to submit of the affidavit before 27th November 1982. The State of West Bengal was asked to submit its affidavit by the Supreme Court before 9th November 1982. Also, a quarterly report regarding the orders made in the last five years in the Guardians and Wards act, 1890, entrusting the custody of Indian children to foreign parents, was asked to be submitted by the court to the Superintendent of Tees Hazari courts. The final hearing of the writ petition was adjourned to 1st December 1982. The first judgment was passed in the year 1984 followed by a supplement judgment dated 27^th September 1985 stating the norms and guidelines for inter-country adoptions.

ISSUES RAISED

1. Whether the Honourable Supreme Court should accept the writ petition or reject it in the name of no substantial law being involved considering the severity of the issue raised.
2. Whether the Honourable Supreme Court should provide more laws for better clarity after affirming the fact that the laws existing with respect to inter-country adoption are not sufficient.

LAWS RELATED

Guardians And Wards Act

Certain rights and duties of the guardian are covered under the Guardians and Wards Act of 1890. 

Section 7 gives the court the authority to issue a guardianship order. According to this clause, the court may appoint guardians for the benefit of minors.  A guardian will be able to look after the minor and their belongings. The court may terminate any guardian. The court can also remove the guardian who is chosen by the court

Section 8 of this act discusses the child’s welfare and states that the child’s welfare should be the primary motive for adoption. The procedures and norms to be followed in the matter of adoption to safeguard the children’s rights were stated in this act.

Section 9 of the Guardians and Guardians Act 1890 gives the court jurisdiction to consider the application. If the application concerns the guardianship of a minor, the court in which the minor’s guardian resides enjoys jurisdiction.

If the application involves the property of a minor, the district court may have jurisdiction either where the minor lives or where the property is located.

Section 11 outlines the application qualification process. This provision states that the court will set a preliminary hearing once it is convinced of the basis for the proceedings. The notification was sent as the C.P.C. (Civil Procedure Code 1908) authorized.

Section 17 lists factors to take into account when choosing a guardian.  The court will decide based on the minor’s interests, development, and overall case conditions. In accordance with section 17 (5) of the statute mentions that the court cannot appoint a guardian contrarily or oppose the minor’s wishes.

Section 26 concerns excluding the minor from its ambit. If the child disappears from or is separated from the possession of guardians whom the court appoints, then the court will issue an order for the return of the ward to the guardians.

Article 14

Article 14 of the Indian constitution discussed equality before the law and equal protection of the law. Clause (3) of Article 15 is an exception and states that special provisions can be made for children and women. Article 15 was brought to light in this case.

Article 24

Article 24 abolishes child labour and states that children under 14 should not be made to work in hazardous industries, mines, or factories. This article discussed the importance of child welfare and safeguarding them from being exploited in this case.

Article 39

Article 39(e) and (f) mention that the state is required to guide its policies towards ensuring that young children are not molested and that they are not coerced into careers that are out of character for the children’s age, ability, and capacity to grow in a positive way out of financial necessity.

CARA- Central Adoption Resource Authority 

It is a legislative body with the authority to oversee and control both domestic and international adoptions of Indian children. It serves as the coordinating body for such adoptions. With its affiliated, reputable adoption agencies, CARA deals with the adoption of orphan, abandoned, and surrendered children. The parents who want to adopt a kid must be authorised by a social organisation or child welfare organisation approved by the nation’s government where the international pair lives. It is a legislative body with the authority to oversee and control domestic and international adoptions of Indian children. It serves as the coordinating body for such adoptions. With its affiliated, reputable adoption agencies, CARA deals with adopting orphan, abandoned, and surrendered children. The parents who want to adopt a kid must be authorized by a social organization or child welfare organization approved by the nation’s government where the international pair lives.

ANALYSIS

The adoption of children is a concept that has existed in Indian culture since time immemorial. The importance placed on having a “firstborn son” in Hinduism resulted in the notion of adopted sons to conduct family rituals and rites. The established prevalence of adoption in India has ensued in drafting laws, such as the Hindu Adoption and Maintenance Act 1956[1], to ensure that the adoption process is overseen by agencies entrusted with regulating it. However, the pre-existing adoption laws failed to foresee inter-country adoption’s emergence.

Inter-country adoption is a way of adoption that developed due to the improved connectivity of countries with the advent of technology and better transportation methods. It allowed foreign parents to adopt underprivileged children from other countries, usually from countries with lower economic statuses, to provide them with a better life and opportunities. The United Nations validated it in the Draft Guidelines of Procedures Concerning Inter-Country Adoption in 1981. It was seen as a method to ensure that the underprivileged children would receive a congenial environment to grow up in, as they would with their biological parents. Though the thought behind the idea was noble, the lack of regulations made it susceptible to human trafficking, wherein the system in place would be misused. Thus, many children who underwent the process of inter-country adoption would end up getting trafficked and subjected to inhumane living conditions, a stark contrast to the life they were promised. 

The case of Laxmi Kant Pandey vs Union of India[2], which shed light on the severe lack of regulations surrounding inter-country adoption and the need for a legal framework to protect the rights of the adopted children, saw the judiciary take part in judicial activism to ensure that the process of inter-country adoption from India would be as shielded from malicious activities as possible. This was done by ensuring that every step of adoption from India would be precise and regulated.

In the judgment for Laxmi Kant Pandey vs Union of India, the Supreme Court laid out guidelines for inter-country adoption. It thus ushered in a new era concerning adoption in India, wherein the government had till then not taken much cognisance of the lack of guidelines regarding inter-country adoption. The judgment, which was delivered by a three-judge bench headed by Justice P.N Bhagwati, recognised the lack of safeguards with respect to inter-country adoption and chose to formulate a detailed set of guidelines to ensure that the adoption of children from India by foreign guardians would only occur under exceptional circumstances, and only if it was deemed that the children were adopted in a hospitable environment, similar to what they would ideally receive from their biological parents.

The bench made one explicitly clear: adopting the child would put the child’s welfare first and foremost. This was in conjunction with the United Nations Declaration of the Rights of the Child[3], where a child’s right to be loved and grow up in an environment where they can receive the affection they deserve was recognised. The judgment stated that the primary focus of the adoption agencies should be to ensure that the child could be reunited with its biological parents, as the care provided by the child’s biological parents would be the ideal environment for the child to grow up in. To ensure this, the adoption agencies should take the necessary steps to track the biological parents and attempt to reunite the child with them. If needed, social service agencies can facilitate these families in reuniting as, in many instances, the children may be given up by their parents due to financial difficulties or mental incapacity to take care of the child. Only if all attempts by the social service agencies fail after 3 months can the adoption agencies move to the next step: aiding the adoption process of the child domestically

The court noted that, as the welfare of the children is what is essential, the next best step other than reuniting the children with their biological parents would be to find adoptive parents for the child in India, as they would thus grow up in the same environment that they are familiar with and would not have to deal with the stress of adapting to a new country’s culture and norms at their tender age. Securing adoptive parents from the native country would be done for two months. At that point, if the child has not been adopted domestically, the adoption agencies will allow applications for inter-country adoption.

As there is no statutory enactment in India providing for the adoption of a child by foreign parents or laying down the procedures to be followed in such cases, the court has instructed that the provisions of the Guardian and Wards Act 1890[4] should be used to facilitate such adoption. This act provides for the appointment of a guardian by a court for the care of a minor or a person of unsound mind.

In the guidelines issued for foreign adoption in the country, the apex court stated that all applications from foreigners seeking to adopt a child must be sponsored by a social or child welfare agency recognised or licensed by the government of the country in which the foreigner resides. It is important to note that social welfare agencies in India working in inter-country adoption or institutions where the juvenile court commits children should not entertain applications directly from foreigners. The bench also emphasised the child’s age’s importance in inter-country adoption cases. The court has stated that a child should be adopted before the age of three in such cases, allowing the child to assimilate more easily into the new environment and culture.

The process for foreign adoption of Indian children involves applying to the court for appointment as guardian, with notice sent to a child welfare agency. The agency must be licensed and maintain a register of children proposed for adoption. The court must be satisfied that the child is legally available for adoption, and the application must be sponsored by a recognised agency in the foreigner’s country of residence. 

The judgment in Laxmi Kant Pandey vs Union of India was instrumental in ensuring that inter-country adoption would not fall victim to malpractices like human trafficking and thus helped secure the rights of adopted children in India. Following the judgment, the Government of India instituted the Central Adoption Resource Agency (CARA). CARA serves as a centralised source of information for monitoring both domestic and international adoptions. 

This judgment also influenced the creation of the Juvenile Justice (Care and Protection) Act 1986, revised in 2000[5]. This new legislation considered the provisions of the United Nations Convention on the Rights of the Child[6] and other pertinent international treaties. The law adopted a child-centric approach, ensuring that children requiring care and protection receive appropriate care, protection, treatment, and rehabilitation.

Though no formal legislation was enacted to solely overlook the process of inter-country adoption in India, the precise nature of this judgment has ensured that the scope for malpractices with the process of inter-country adoption has decreased gradually and has thus made the process more secure and favourable for the adopted children and the foreign guardians. 

CONCLUSION

The case of Laxmi Kant Pandey v. Union of India was and will serve to be the landmark judgement not only for the statutes and amendments that the judgment brought in but also from a petition letter turning into a writ petition. The significance is that the modification of the judgement in 1987 clarified the guidelines. This case also became sensational, starting from one petitioner, i.e. a litigator of S.C., to six petitioners filing six applications. Also, how Indians and other executives came to know about the scam of illegal sale of babies under the cap of Inter-country adoption. This case is considered one of the substantial ones as it not only dealt with exploitation or trafficking that happens in adopting Indian Children by foreigners but also explained how the guidelines and provisions are to be followed. This was due to population restraint and various policies like the one-child policy by developed countries. So this increased the scope for various illegal and non-reputable adopting agencies that sell Indian children for reasonable sums, and the adopted child ended up as a beggar and prostitute. The case will serve and is serving a scrutinised adoption procedure to adopt Indian children, which will create fear in the minds of illegal or profit-making adoptive agencies. 

The case of Laxmi Kant Pandey vs Union of India brought in the most productive and safe guidelines and procedures like the three to five-tier adoptive process. Starting from whether the adoptive parents can care for the child to create a fixed deposit for the adopted child. The court also ensured that the child being adopted would be able to adapt to the surroundings and culture of the adoptive country and the people around. The other significant outcome of the judgment is how the maintenance of registers by the Social Welfare Department of India and the Embassy of the country the child is being adopted to keep an eye on the address and other details of the adopted kid from time to time ensure the safety kid. Then the modified judgment also solved and provided remedies for a quick adoption process yet a safer one as there was a delay in inter-country adoption. The big question is whether the judgment is efficacious on inter-country adoption. This case also served as an inevitable precedent that led to the introduction of the Central Adoption Resource Agency (CARA) and later following a few more judgments leading to the Juvenile Justice (Care and Protection of Children). Also, the statistics show that during the past four years, close to 2,134 Indian children have been adopted by parents from five countries.

This case is an excellent illustration of how procedure development in public interest litigation has eased standing limitations in India, leaving the judicial framework more accessible to disadvantaged members of society. It also serves as an illustration of the Indian Supreme Court’s judicial activism. The Supreme Court did not think twice about setting specific instructions to control adoptions and safeguard kids from prostitution and enslaved labour when faced with a legislative gap on a significant social concern. In totality, talking about inter-country adoption is like a double-edged sword with advantages and disadvantages On the one hand, international adoption may be a lifeline for kids who have been abandoned, orphaned, or abused. It may give kids’ devoted families access to higher education and superior medical care. It can also allow escaping poverty, prejudice, and other harsh conditions.

Conversely, international adoption may be troublesome if not conducted ethically and openly. The global adoption system has seen child trafficking, corruption, and abuse. Additionally, some critics contend that international adoption may contribute to exploiting marginalised people and perpetuating system imbalances.

---

Endnotes

1. The Hindu Adoptions And Maintenance Act, 1956, No. 78, Act of Parliament, 1956 (India).
2. Laxmi Kant Pandey v. Union of India, 1987 AIR 232.
3. UN General Assembly, Declaration of the Rights of the Child, 20 November 1959, A/RES/1386(XIV).
4. The Guardians And Wards Act, 1890, Act No. 8 Of 1890.
5. The Juvenile Justice (Care and Protection of Children) Act, 2000, No. 56, Act of Parliament, 2000 (India).
6. UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty
   Series, vol. 1577, p. 3.
7. http://lexpeeps.in/child-abuse-and-the-laws-to-prevent-it/

This case analysis is done by Vishal Menon, from Symbiosis Law School, Hyderabad.

S.no	Contents
1.	Facts of the Case
2.	Issues of the case
3.	Rationale
4.	Judgment
5.	Generalis Specialibus Non-Derogant

Year

1958

Case No.

122 of 1958

Equivalent Citation

1959 AIR 396

Date of Judgment

12/12/1958

Court

The Supreme Court of India

Bench

Chief Justice Sudhi Ranjan Das, Justice Natwarlal H. Bhagwati, Justice Bhuvneshwar P. Sinha, Justice K. Subbarao, Justice K.N. Wanchoo.

Introduction

Certain privileges are being provided to the parliament collectively as well as individually so that they can effectively discharge their functions without any kind of hesitation. Article 105[1] deals with the power and privileges of the house of parliament whereas Article 194[2] deals with the power and privileges of the house of Legislators. The case of Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha and Others[3] not only deals with the conflict between the legislator and the court but also between the legislator and a citizen. In the Judgment part of this case, it was held by the court of law that the legislative assembly does have the power to regulate the publication of debate and other proceedings. However, this act might curtail an individual’s Fundamental Rights i.e. Right to Freedom of Speech[4], in this case, analysis, we will critically analyze why the court has given such implications and what is the validity of such implications.

Facts of the Case

In the case, the petitioner M.S.M. Sharma was a journalist at the “Searchlight” which was an English Newspaper operated in Patna, Bihar. On May 30, 1957, one of the members of the Bihar Legislative assembly whose name was, Maheshwar Prasad Narayan Sinha delivered a speech in Bihar Legislative Assembly in his speech he made some statements regarding Mahesh Prasad Singh that he was the one who guided the Chief Minister in the selection process of the other ministers and he also cited certain instances of favouritism. Further, it was alleged by Maheshwar Prasad Narayan Sinha in his speech that ministers were not given the proper ministries to which they were entitled and for which the conventional process should have been followed for the appointment. Many other instances regarding corruption were mentioned by him in the speech, he took the example of the District Judge who was only transferred from one place to another but was not discharged as per the advice of the Chief Justice of the High Court, Bihar. Further many other instances were discussed by him which were regarding the corruption and criticism of the prevailing government.

The Speaker of the assembly held that the part of the speech made by Maheshwar Prasad Narayan Sinha was objectional and directed it to be expunged. However, no specific directions were given to the Press, the speaker meant by saying this that the publication of the part of the speech which criticized the government must not be made.
On May 31, 1957, the part of the speech that was expunged by the speaker and was directed by him that publication of these parts must not be done, was published by the newspaper “Searchlight”. On 10th June 1957 Nawal Kishore Sinha, a member of the state legislative assembly questioned the same in the assembly. The matter was soon transferred to the Privilege Committee. After the evaluation of the entire facts for almost after more than a year on 18th August 1958 M.S.M. Sharma was summoned before the Privilege Committee and was asked to reply as to why an action against him must not be taken as he has done the breach of subsisting privileges. Further, the proceeding regarding the breach of privilege was initiated against the editor. M.S.M. Sharma moved to the court under Article 32 of the Indian Constitution for quashing the said proceeding and he raised the question was whether the said privilege under Article 194 was subject to the Fundamental Right under Article 19(1)(a)[5].

Issues of the case

1. Does the legislative assembly have a power under Article 194(3) of the Indian Constitution to prohibit the publication of the statement which is being done publicly in the house?
2. Do the legislative assembly privileges under Article 194 of the Indian Constitution prevail over the Fundamental Rights guaranteed by the Indian Constitution specifically Freedom of Speech and Expression?[6]

Rationale

Arguments from the Petitioner’s side:

• The notice issued by the committee and the proceeding initiated by them violates his fundamental right under Article 19(1)(a) of the Indian Constitution as well as it violates his personal life and liberty assured under Article 21 of the Indian Constitution.
• They further argued that as the petitioner of the newspaper petitioner is entitled to Freedom of the Press.
• The notice which was issued by the privilege committee was invalid as the Chief Minister of Bihar was the chairman of the Privilege Committee.

Arguments from the Respondent’s side:

• The respondent relied on the Article 194 of the Indian Constitution.
• They argued that the state legislative assembly can exercise similar powers, privileges, and immunities as the British House of Commons, where the proceedings of the assembly cannot be published.
• They further argued that the part of the speech which was directed to be expunged cannot be published by anyone under any circumstances as it was expressly prohibited.
• If a such publication is being made which was being prohibited then such publication is a breach of the privileges of the Assembly.

Judgment

The court of law held that in accordance with Article 194(3) of the Indian Constitution, the state legislative assembly of Bihar does have the same immunities, privileges and power as the British House of Commons. It was said that since Bihar legislative assembly did not have passed any law concerning the power, privileges, and immunities of the legislative assembly and hence legislative assembly of Bihar will enjoy similar power privileges, privileges, and immunities as that of the British House of Commons. In the British House of Commons, there is a framed order that no member shall give a copy or publish any kind of stuff that has happened during the preceding of the House i.e. no publication of the statement must be made that has taken place in the House. Therefore while dealing with the issue of publication regarding the proceeding of parliament or the legislative assembly the law and order of the British House of Commons should be taken into the consideration.

The petitioner said that Article 194(3) is curtailing his Fundamental Rights under Article 19(1) (a) the court has interpreted this question of has concluded that the legislative privilege under Article 194(3) does not abridge the Fundamental Rights guaranteed by the Indian Constitution under Article 19(1) (a) and explanation regarding the same was given. The court of law said that in (1) it is being mentioned that “subject to the provisions of the constitution” whereas in clauses (2) to (4) it has not been stated as subject to. Therefore it can be assumed that Constitutional makers did not intend that that clause should be subject to the provisions of the Indian constitution and hence Article 194(3) does not breach the Fundamental Rights which are guaranteed by the Indian Constitution. Further, the court of law stated that if any provision of the Indian Constitution takes away or abridges the Fundamental Right then in that case it is a violation of Article 13 and the provision that violates the Fundamental Right must be void. But, since Article 194(3) is perfectly valid it can be inferred that it does not violate Article 13 of the Indian Constitution.

However in this case the dissenting opinion was given by Justice Subbarao he quotes the case of Gunupati Keshavram Reddy v. Nafisul Hasan[7] and said that Article 194(3) is subjected to Part III i.e. Articles 12 to 35 which deals with Fundamental Rights.

Generalis Specialibus Non-Derogant

The meaning of above stated legal maxim is – where there is a special right, general rights will not be applicable. From the above discussion, we can infer that the Parliamentary Privileges or the State Legislative Privileges are special rights, and in case the Fundamental Rights are the General Rights. In the case of Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha and Others[8], this was one of the key areas where consideration could have been taken and to a certain extent, it was taken. Therefore, the general principles or general rules won’t be applicable in cases where there is a special right. The same was with the condition of Article 194(3) these are the special rights that are being given to the parliament for their effective and efficient working so that they can effectively discharge their functions. And the Fundamental Rights given under 19(1) (a) is the general right that is not applicable in the circumstances in which there is a special privileges/rights and the fines example of the situation is the case of Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha and Others[9].

In the case of Azad Transport Co. v. State of Bihar it was considered that the VAT is a special provision and rules in CrPC are considered to be general.

Conclusion

From the above discussion and the analysis of facts, issues, and the judgment of the case it can be said that the court in its majority decision tries to establish the harmonious construction between the prevailing Fundamental Rights and the privileges given to the parliament and the state legislature. The significance judgment of this case is of paramount importance as it serves as the judicial precedent after this particular case. After the decision was delivered by the court, the assembly was prorogued several times and the privilege committee was reconstructed which issued a fresh notice of petition in the court of law against M.S.M. Sharma. As a result, M.S.M. Sharma moved to the court seeking to reopen the same issue. The court held that the principle of res judicata is applicable in this particular case and held that the matter is already decided which is binding on the petitioner.

However, one question remained open in this case and that was whether Article 21 is being affected because of the privileges given to the parliament or state legislative. The question regarding the subjection of Article 19(1) (a) was solved by the court of law i.e. Article 19(1) (a) is not subject to the privileges. But the court of law failed in this case to answer the question relating to Article 21, whether it overrides the privileges or not.

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Endnotes

1. INDIA CONST, art. 105
2. INDIA CONST, art. 194
3. Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha and Others, 1959 AIR 396
4. INDIA CONST, art. 19(1)(a)
5. Supra note iv
6. Ibid
7. Gunupati Keshavram Reddy v. Nafisul Hasan, AIR 1954 SC 636
8. Supra note iii
9. Ibid

This case analysis is authored by Prashant Prasad, a second-year law student from University Law College.

Year

1950

Citation

AIR 1950 SC 27

Court

The Supreme Court of India

Bench

Harilal Kania (C.J.), Justice M. Patanjali Sastri, Justice Mehr Chand Mahajan, Justice B.K. Mukherjee and Justice Sudhi Rajan Das, Justice Fazal Ali Saiyid.

Introduction

A.K. Gopalan was the political opponent of the government. He filed the writ petition of habeas corpus. Habeas Corpus which means you may have the body is a writ that institutes the court to determine whether a criminal defendant has been lawfully imprisoned or not. A.K. Gopalan filed this writ petition challenging Article 19(1) (d)[1] which is the right to freedom of movement and article 21[2] which states the right to life and personal liberty. He filed this writ petition against the detention in pursuance of an order of detention made under the Prevention Detention Act, of 1950[3].

Prevention Detention Act detains the person without giving any valid reason and detention is being done because that detention is important. He challenged the validity of the order given by the court in pursuance of the Prevention Dentition Act to be “Mala Fide”.

Facts of the case

Since December 1947 A.K. Gopalan was detained several times illegally and even after the order of the court which makes him free he was kept under detention by the government under the Prevention Detention Act, of 1950. So, he filed a writ petition under article 32 for seeking the writ of habeas corpus of The Indian Constitution. He challenged the legality of order by the government as it opposes some of the articles of The Indian Constitution. He further argued that Sections 7, 8, 10, 11, 12, 13, and 14 of the Prevention Detention Act, 1950 violate Articles 13, 19, and 21 of the Indian Constitution. But majorly he asked for this writ on the ground that the Preventive Detention Act[4] curtails his personal liberty under Article 21 of the Indian Constitution. He contended that the law under Article 21 is not just the enacted law but it also includes the Principle of Natural Justice as well as some others laws associated with it that deprives the individual’s personal life and liberty. 

Petitioner contention

M.K. Nambiar appeared as a petitioner’s council. Some of the arguments put forward by the petitioner’s side were –

• The first and foremost argument was about the legality and validity of the provision of the Preventive Detention Act, of 1950 which they believed had violated Articles 13, 19, 21, and 22.
• We have article 19(1) (d) of the Indian Constitution which states the freedom to move freely within the territory of India but in this case, the State Government of Madras restricted this right by the detention of A.K. Gopala even after the decision by the court which made him free.
• The provisions of the Preventive Detention Act, of 1950 were against article 19 and challenged the statute’s failure as the petitioner’s freedom of speech and expression was revoked.
• Article 21 is in the Right to Life and personal liberty but after the prolonged detention, it seems to have no importance of Article 21 for the petitioner.
• The detention order was also arbitrary as it violates article 22. Article 22 deals with protection against arrest and detention in certain cases.
• Section 14 of the Preventive Detention Act, of 1950 violates the fundamental right under article 13 of the Indian Constitution

Respondent’s Contention

Advocate K. Rajah Ajyar (Advocate General of Madras), and M.C. Setalvad (Attorney General of India) appeared as respondent’s council 

• The respondent said that Articles 19 and 21 should not be read together as it depends on the perspective and the nature of the case in which context both the articles should be read together.
• Detention that is being done is not arbitrary, according to Article 22 which states protection against arrest and detention in certain cases.
• The legal procedure that is followed, everything is as per the constitution of India. 
• Detention does not violate any of the rights of the petitioner i.e. of articles 12, 19, 21, and 22.
• The Prevention Detention Act is completely legal and not arbitrary.
• There is no point in filing a writ petition of habeas corpus under article 32 of the Indian Constitution.

Issues raised in the case

• The Prevention Detention Act, of 1950 does violate the prevailing articles 19 and 21.
• Article 19 – Protection of certain rights regarding, speech and expression, assembly, association, residence, and profession. Article 21 – Protection of life and personal liberty is there any kind of relation between these two, and can they be read together? This was one of the major issues as it could turn out to be the deciding factor.
• Due process is a requirement that legal matters are resolved according to the established rules and principles and everyone should be treated fairly. So the issue raised was whether the procedure established by law under Article 21 is the same as that of due process of law.

Judgment

This case is a landmark case in constitutional law and is popularly known as the Prevention Detention case. After extensive discussion and wide research, the bench of judges came to the last point of the case where they were expected to give the judgment on this particular case. The court rejected the argument that Article 19 and Article 21 of the Indian Constitution are being violated because of the Prevention Detention Act, of 1950. The next particular topic on the discussion was being done was that whether the Prevention Detention Act, 1950 is ultra-vires or not, however in this particular question section 14 of the act was declared as the ultra-vires as it violates the rights guaranteed by Article 22(5) of the Indian Constitution. The court also said that being ultra-vires of section 14 of the act does not affect the validity of the whole act. The next question was whether article 19 and article 21 should be read together and if there is any kind of relationship between both articles. The court rejected this argument and said that both article is distinct and must not be read together.

The judgment of this case was given by the 6 judge’s constitutional bench in a ratio of 5:1. The decision of Justice Fazal Ali was opposite to the decision given by the other judges and his decision can be regarded as the dissenting opinion. The court said that personal liberty only means the freedom of the physical body and nothing beyond that. In the nutshell, we can say that the Supreme Court rejected the petition filed by A.K. Gopalan and said that the Prevention Detention Act, 1950 does not violate article 19(1) (d) and article 21 of the Indian Constitution.

• Dissenting opinion by Justice Fazal Ali

In this case, the dissenting opinion was given by Justice Fazal Ali; he observed that preventive detention violates the Fundamental Rights guaranteed by the constitution. According to him, the Constitution recognized that personal liberty and preventive detention are arbitrary and could be misused by the government to suppress political dissent. He further argued that personal liberty was a fundamental right and could only be curtailed in accordance with the law and that the Preventive Detention Act, of 1950, did not satisfy this requirement.

In his dissenting opinion, Justice Fazal Ali noted that the right to personal liberty is one of the essential parts of the freedom and dignity of the individual, and it is necessary to protect this right from arbitrary interference by the state. He said preventive detention violates this right hence it is unconstitutional.

Therefore, in the case of A.K. Gopalan vs. The State of Madras, Justice Fazal Ali highlights a commitment to a person’s rights and restricting the power of the state to interfere with personal liberty.

• Protection of Personal Liberty

The Article 21 of our Indian constitution reads “No person shall be deprived of his personal liberty except according to the procedure established by law”[5]. The word “person” that is being used in this article signifies that this Article is applicable to the citizen as well as non-citizens as everyone is entitled to personal liberty. The Article further states that this liberty cannot be taken away unless there is a procedure established by law has been followed. Concerning the fact regarding personal liberty the difference between “Due process of law” which means the process must be fair and reasonable and “procedure established by law” which means the procedure should take place in a way that the parliament has signified, was taken into consideration. However, in the judgment of this case the meaning of Article 21 was taken in a narrow sense i.e. in this case the meaning of personal liberty was taken as personal liberty is just protection of body parts and the state cannot harm the individual’s body part. Also, it was held that there is no link between Articles 14, 19, and Article 21.

After 30 years in the case of Maneka Gandhi v. Union of India[6], personal liberty was interpreted in a different sense i.e. in a wider sense. The court took the wider view of Article 21. It was held that there is a connection between Articles 19 and 21. It was also held that there is no difference between personal liberty and liberty. In personal liberty, every other liberty has been included. Therefore the concept of personal liberty was taken into consideration in a different sense before and after the case of A.K Gopalan v. State of Madras[7] thereby leading to the rejuvenation of a new concept of personal liberty in the case of Maneka Gandhi v. Union of India[8].

• Co-relation of Article 14, 19, and Article 21 before and after the case

Articles 14, 19, and Article 21 are the basic and vital Articles of the constitution, and the connection between both them is to be taken into consideration for the better interpretation of these Articles. Article 14, 19, and Article 21 are connected with each other as there forms the bedrock of the Fundamental Right guaranteed to every citizen of India. Before the case of A.K Gopalan (1950), these articles used to be taken into consideration as a separate and distinct identity. Article 14 ensures equality before the law and equal protection of the law. Article 19 guarantees six freedom to the citizens of India these freedoms are – Freedom of speech and expression, Freedom to assemble peacefully, Freedom to form associations and unions, Freedom to move freely throughout the territory of India, Freedom to reside and settle in any part of the country and the last is the freedom to practice any profession, occupation, trade or business. Article 21 guarantees the right to life and personal liberty to every citizen.

In the case of A.K Gopalan, the Supreme Court of India held that the right to personal liberty under Article 21 is limited to procedural aspects. This means the government can deprive an individual of their personal liberty as long as the procedure for doing so was legal. This decision in the case of A.K Gopalan was criticized by many as an individual could be detained infinitely without facing any trial until the procedure allows doing that.

However, in the subsequent cases, the Supreme Court expanded the scope of Article 21 to include substantive rights as well such as a free trial, the right to privacy, and the right to education, etc. under this Article. This inculcation of substantive rights in the purview of this Article 21 gives the interconnection of Articles 14, 19, and Article 21.

Conclusion

In the case of A.K. Gopalan vs. The State of Madras, the court restricted the meaning of Article 19 and Article 21 of the Indian Constitution. However, after several years in the case of Maneka Gandhi vs. Union of India, the court overruled this judgment and said that the opinion of Justice Fazal Ali was correct. The court further said that the scope of Article 21 and Article 19 has a wider view. From the above analysis of the case, we can conclude to the fact that the Right to life and personal liberty is not only recognized under the Indian Constitution but also intentionally recognized on the basis of the principles of natural justice. The case of A.K Gopalan is one of the most important cases of Independent India as in this case the question pertaining to Article 21 was raised for the first time after the Independence of India. However, the court took Article 21 in a narrow sense and makes it in accordance with the procedure established by the law. Almost after 30 years this decision was overruled and lastly, Article 21 was taken into a broader sense. Lastly, the court widen the view of Article 21 and said that the procedure established by the law must be just, fair, and reasonable. Therefore, from the above discussion, we can say that the case of A.K. Gopalan vs. The State of Madras (1950), was a landmark case in the Indian Constitution.

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Endnotes

1. INDIA CONST. art. 19(1) (d)
2. INDIA CONST. art. 21
3. Prevention Detention Act, 1950, Act No. 4 of 1950
4. Ibid
5. INDIA CONST. art. 21
6. Maneka Gandhi v. Union of India, AIR 1978 SC 597
7. A.K Gopalan v. State of Madras, AIR 1950 SC 27
8. Supra note vii

This case analysis is authored by Prashant Prasad, a second-year law student from University Law College.

Divorce, further referred to here as dissolution of marriage is the process of ending a marriage. The reasons for divorce can vary from irreconcilable differences to infidelity, and the process typically involves legal proceedings to divide assets and determine custody arrangements for any children involved. It pertains to the revocation or restructuring of the constitutionally protected duties and responsibilities of marriage, thereby dissolving this same relationship of matrimony between a married couple under the laws of the specific country or state. Gender justice refers to eliminating the disparities between men and women that are reproduced and produced in the family, market, community, and state.

To address the injustice and discrimination against women and the poor, we must address all of these issues. Gender justice plays a crucial role in divorce proceedings to ensure that both parties are treated fairly and equitably, especially in cases where women and children are often at a disadvantage. It is important to recognise the intersectionality of gender, class, and race in divorce cases to promote a more just and inclusive legal system. Therefore, it is important to consider gender justice when dealing with divorce cases, as women and children are often disproportionately affected by the legal and financial consequences of divorce. Efforts to promote gender equality and address systemic inequalities can help mitigate these negative impacts.

Gender justice is a global movement to achieve equal rights, freedom, and justice, but women still face discrimination, violence, poverty, and limited access to education and healthcare. It is important to continue the fight for gender justice and promote women’s rights worldwide. Achieving gender justice requires a comprehensive approach that involves changing social norms, policies, and institutions to ensure that women and men have equal opportunities and resources. This can be achieved through initiatives such as education and awareness campaigns, legal reforms, and the empowerment of women in leadership positions. By working towards gender justice, we can create a more equitable and just society for all. This requires the active participation of individuals, communities, governments, and international organisations.

Divorce under Muslim law 

Well before the Solubilization of the Muslim Marriage Act of 1939, Muslim women had almost no legitimate right to ask their spouses for separation. This highlights the need for continued efforts towards gender justice, particularly in the context of religious and cultural practices that may perpetuate inequality. Such efforts must be inclusive and involve a range of stakeholders to ensure lasting change. This highlights the need for reform in traditional religious laws and practices that discriminate against women and perpetuate gender inequality. It is crucial to promote legal and social frameworks that protect women’s rights and empower them to make independent decisions about their lives. The Solubilization of the Muslim Marriage Act of 1939 was a significant step towards granting Muslim women the right to seek divorce. However, there is still a long way to go in terms of ensuring gender equality and justice within the Muslim community. Efforts must be made to challenge patriarchal norms and promote education and awareness among both men and women. This will help to create a more inclusive and equitable society where women can fully participate and thrive. In addition, there is a need to address the issue of triple talaq, which allows Muslim men to divorce their wives by simply saying “talaq” three times. Triple talaq is a discriminatory practise that violates women’s rights and leaves them vulnerable to abandonment and destitution. It is crucial for Muslim leaders and policymakers to work towards abolishing this practise and implementing laws that protect women’s rights in marriage and divorce. This practise is not only discriminatory but also violates the fundamental rights of women. Reforms must be made to ensure that Muslim women have equal rights and protection under the law.

The Dissolution of Muslim Marriage Act of 1939 developed nine grounds on which a Muslim woman could seek redress in court, namely:

1. that the husband’s whereabouts were uncertain for a duration of four years;
2. that the husband neglected or did not provide her monitoring for a duration of two years;
3. that the husband must have been incarcerated for a period of seven years or more; but rather
4. that the husband failed to act, without justifiable suspicion.
5. the husband has been mentally ill for two years, or
6. that she, having been given in marriage by her father or other guardians before the age of fifteen, repudiated the marriage before the age of eighteen.

The Act also gave Muslim women the right to divorce their husbands on certain grounds, such as cruelty, impotence, and adultery. However, the Act has been criticised for not going far enough to protect Muslim women’s rights in divorce cases.

 Gender injustice against women

Muslim personal law is seen as having even more gender inequality. As a result, Muslims deserve extraordinary justice. They are not left in charge of deciding how “justice,” “fairness,” and “equity” are attained. In a number of situations, God decrees what is “just” for human society, and humans are compelled to follow these decrees or stipulations from the divine.

This tactic is based on the idea that divine law is superior to laws made by humans and that upholding it will result in a society that is fair and just. This strategic approach, albeit having its detractors, every so often results in the oppression of minority populations within Muslim communities. God commanded humans to uphold justice and fairness on earth and made it a virtue that would ensure their happiness and peace in both this life and the next.

The path of injustice leads to the promised damnation. Justice is required in all aspects of life, including business transactions, politics, domestic relationships, legal administration, and intellectual and educational pursuits. It argues that it is evident that Islam places a high value on justice in all aspects of life. With the promise of reward for those who do and punishment for those who do not, Muslims are encouraged to strive for justice and fairness in their interpersonal and societal interactions.

This emphasis on justice stems from the conviction that all individuals have equal worth in God’s eyes, and it is each person’s duty to uphold this equality. Striving for justice is thus not only a moral obligation but also a means of achieving spiritual fulfilment and closeness to God.

The tense relations between Hindus and Muslims today have their roots in the Shah Bano episode. The Supreme Court’s decision awarding Shah Bano pitiful monthly alimony was overturned by the Rajiv Gandhi administration through an ordinance. 

Intentionally, this was done to protect Muslims’ ability to practise their religion freely. In reality, it amounted to violating the rights of women, who make up half of the Muslim population. It was obvious that the move was made to placate the vocal groups and clerics. This gave the BJP’s accusation of Muslim appeasement momentum and gave the long-dormant Hindutva movement new life. Many Native Americans started to believe the accusation of appeasement. It helped the BJP go from having two MPs in Parliament to having an absolute majority in 2014. The BJP’s strategy of portraying themselves as the protectors of Hindu interests and accusing their opponents of Muslim appeasement proved to be a successful political tactic, as it resonated with a significant portion of the Indian electorate. This allowed them to consolidate their power and implement their agenda, including controversial policies such as the Citizenship Amendment Act. The Citizenship Amendment Act has been criticised for being discriminatory against Muslims and has sparked protests across the country. However, the BJP remains popular among many Hindu nationalists, who see the party as a defender of their interests and values.

Only speaking out when they believed there was a “danger to Islam,” the Muslim leadership has historically been exclusively male and overtly religious. Islam khatre mein is a well-known rant from my generation. In their eyes, women who educate themselves, secure employment, and demand equal treatment pose a clear threat to their authority and status. For them, the equality of women leads to Islam, khatre mein he. They keep saying that Islam granted women’s rights 1400 years ago, but they never give the idea of making those rights a reality. They could not be credited with respect for people of other faiths or tolerance for Muslims who hold dissimilar beliefs. This mindset is not only harmful to women but also to the progress of society as a whole. It is important to challenge these beliefs and promote gender equality for a better future.

In India, a number of laws have been passed with the goal of reducing the gender pay gap and promoting women’s empowerment. Various rights for women in this regard are guaranteed by the Indian constitution. Part III of the Constitution, which deals with fundamental rights, and Part IV, which deals with directives and guiding principles of state policy, provide evidence of this. According to Article 14, everyone shall enjoy equal protection under the law and be treated equally in court. This means that no distinction between men and women should be made by courts or law enforcement organizations. The foundation upon which other laws are created and may be put into effect is the right to equality.

The goal of gender justice cannot be accomplished without the right to equality. The prohibition against discrimination is guaranteed by Article 15. The right to equality and, by extension, the right against discrimination are meant to address the widespread prejudice and bias against women. The special protection for women is discussed in Article 15(3). No matter a person’s sex, they have the right to equal opportunity in terms of public employment under Article 16.

This clause makes it easier for women to start taking part in elections and decision-making. The 74th Amendment, which established a reservation for women in panchayats, is significant to note in this context.

Article 19 guarantees freedom of speech and expression, the right to peacefully assemble without weapons, the right to form associations and unions, the right to move freely throughout the Indian subcontinent, the right to live and settle anywhere on the subcontinent, and the right to engage in any occupation or business. By granting the freedoms required to function in society, promotes the right to equality. Article 19 guarantees freedom of speech and expression, the right to peacefully assemble without weapons, the right to form associations and unions, the right to move freely throughout the Indian subcontinent, the right to live and establish oneself in any location, and the right to engage in any occupation or business. By granting the essential liberties required to participate in society, promotes the right to equality.

The right to life is guaranteed by Article 21, and this interpretation has been expanded to include the right to live with dignity. The right against exploitation is protected by Article 23. It forbids the trafficking of people. Part IV of the Constitution is made up of the State Policy Directive Principles.

Lacking a comprehensive democratic vision that would enable Muslims to meaningfully participate in our secular multifaith polity, the All-India Muslim Personal Law Board (AIMPLB) and the Babri Masjid Action Committee failed to achieve their goals. Both bodies kept their discussions to questions of identity. The majority of these organisations’ leaders pretended to be “Muslim leaders,” speaking for the religion’s 12 crore or more adherents. The majority of them developed close ties with various political parties and benefited from their patronage. These connections were never more than personal, and worse, they never resulted in any collective benefits like promoting education or preventing riots for the whole community. Muslims’ poor economic and educational status serves as evidence of this.

The last 15 years have seen a historic shift in the way that women have publicly spoken out against patriarchal practices like instant triple talaq, polygamy, and halala. When everyday women joined the democratic fight against instant triple talaq and for justice within marriage and the family, it would hardly be an exaggeration to say that the religious male leadership was rendered irrelevant. Additionally, women spearheaded the fight for social justice, communal harmony, and the repeal of unjust laws like the CAA-NRC. This shows that despite their disadvantaged economic and educational status, Muslim women have been able to mobilise and lead important social and political movements in their communities. Their activism challenges stereotypes about Muslim women and highlights the potential for empowerment even in the face of systemic oppression. 

Conclusion

Divorce is the process of ending a marriage. It involves legal proceedings to divide assets and determine custody arrangements for any children involved. Gender justice plays a crucial role in divorce proceedings to ensure that both parties are treated fairly and equitably, especially in cases where women and children are often at a disadvantage. It is important to recognise the intersectionality of gender, class, and race in divorce cases to promote a more just and inclusive legal system. Gender justice is a global movement to achieve equal rights, freedom, and justice, but women still face discrimination, violence, poverty, and limited access to education and healthcare. To address the injustice and discrimination against women and the poor, we must address all of these issues. Divorce under Muslim law highlights the need for reform in traditional religious laws and practices that discriminate against women and perpetuate gender inequality. The Dissolution of Muslim Marriage Act of 1939 gave Muslim women the right to divorce their husbands on certain grounds, such as cruelty, impotence, and adultery. However, the Act has been criticised for not going far enough to protect Muslim women’s rights in divorce cases. Muslim personal law is seen as having even more gender inequality, and Muslims deserve extraordinary justice. Islam places a high value on justice in all aspects of life and encourages Muslims to strive for justice and fairness in their interpersonal and societal interactions. God commanded humans to uphold justice and fairness on earth and made it a virtue that would ensure their happiness and peace in both this life and the next.

The path of injustice leads to the promised damnation. The emphasis on justice stems from the conviction that all individuals have equal worth in God’s eyes, and it is each person’s duty to uphold this equality. The tense relations between Hindus and Muslims today have their roots in the Shah Bano episode, where the Supreme Court’s decision awarding Shah Bano pitiful monthly alimony was overturned by the Rajiv Gandhi administration. This gave the BJP’s accusation of Muslim appeasement momentum and gave the long-dormant Hindutva movement new life. It helped the BJP go from having two MPs in Parliament to having an absolute majority in 2014, as it resonated with a significant portion of the Indian electorate. The Muslim leadership has historically been exclusively male and overtly religious, leading to the view that women who educate themselves, secure employment, and demand equal treatment pose a threat to their authority and status. This mindset is harmful to women and society as a whole, and it is important to challenge these beliefs and promote equality. Muslim personal law is based on the idea that divine law is superior to laws made by humans and that upholding it will result in a fair and just society. The BJP’s strategy of portraying themselves as the protectors of Hindu interests and accusing their opponents of Muslim appeasement was a successful political tactic, allowing them to consolidate their power and implement controversial policies such as the Citizenship Amendment Act.

The Solubilization of the Muslim Marriage Act of 1939 was a significant step towards granting Muslim women the right to seek a divorce, but there is still a long way to go in ensuring gender equality and justice. Reform in traditional religious laws and practises are needed to protect women’s rights and empower them to make independent decisions. Additionally, there is a need to address the issue of triple talaq, which allows Muslim men to divorce their wives by saying “talaq” three times. Triple talaq is a discriminatory practise that violates women’s rights and leaves them vulnerable to abandonment and destitution. Reforms must be made to ensure Muslim women have equal rights and protection under the law, such as the Dissolution of Muslim Marriage Act of 1939. However, the Act has been criticised for not going far enough to protect Muslim women’s rights in divorce cases.

This article is written by Aehra Tayyaba Hussain, a student in her1st year at Symbiosis Law School Hyderabad, pursuing a B.A. LLB.

CITATION

(2017) 9 SCC 1

INTRODUCTION

The case of Shayara Bano vs Union of India refers to a landmark judgment by the Supreme Court of India in 2017 that upheld the constitutional validity of the practice of Triple Talaq or instant divorce among Muslims in India. The case was filed by Shayara Bano, a Muslim woman from Uttarakhand, who challenged the practice of Triple Talaq, which allows Muslim men to divorce their wives by saying “Talaq” three times in one go, without giving any reasons or going through the legal process.

FACTS

Shayara Bano vs Union of India is a landmark case that challenged the practice of Triple Talaq or instant divorce among Muslims in India. The case was filed by Shayara Bano, a Muslim woman from Uttarakhand, who had been married to Rizwan Ahmed for 15 years and had two children. In October 2015, her husband divorced her by sending a letter with the word “Talaq” written thrice. Shayara Bano was devastated by the sudden and arbitrary divorce and decided to challenge the practice of Triple Talaq in court.

Shayara Bano’s petition challenged the legality of Triple Talaq, Nikah Halala, and polygamy, which are practices prevalent among the Muslim community in India. Triple Talaq is a practice that allows Muslim men to divorce their wives by saying “Talaq” three times in one go, without giving any reasons or going through the legal process. Nikah Halala is a practice where a divorced woman has to marry another man, consummate the marriage, and then get divorced again before remarrying her former husband. Polygamy is a practice where Muslim men are allowed to have multiple wives. Shayara Bano argued that these practices violated her fundamental rights as a woman and went against the principles of gender justice and equality enshrined in the Indian Constitution. She contended that the practices were arbitrary, and discriminatory, and left Muslim women vulnerable to abuse and injustice. She also argued that the practices were not essential to the practice of Islam and should be declared unconstitutional.

PROCEDURAL HISTORY

The case of Shayara Bano vs Union of India was filed in the Supreme Court of India on February 2016. Shayara Bano, the petitioner, challenged the constitutionality of the practice of Triple Talaq, which allows Muslim men to divorce their wives by saying the word “Talaq” three times in one go.

The case was assigned to a five-judge bench of the Supreme Court, which held several rounds of hearings and considered arguments from both sides. The bench was headed by Chief Justice J.S. Khehar and included Justices Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit, and Abdul Nazeer. The first hearing in the case was held on May 11, 2017, and the court directed the Union of India to file its response to the petition. The All India Muslim Personal Law Board (AIMPLB) was also allowed to intervene in the case and present its arguments.

The Union of India, represented by the Attorney General, took a neutral stand on the issue and argued that it was up to the Supreme Court to decide whether Triple Talaq was constitutional or not. The AIMPLB, on the other hand, supported the practice of Triple Talaq and argued that it was a matter of personal law and should be left to the community to decide.

The court held several rounds of hearings over the next few months and heard arguments from both sides. The bench also received submissions from several other Muslim women who had been victims of Triple Talaq and other similar practices.

Finally, on August 22, 2017, the Supreme Court delivered its judgment on the case.

JUDGEMENT AND ANALYSIS

This case is a landmark judgment that has inspired many women to make bold movements and is famously known as the judgment that changed India. This landmark case is also known for its unique diversity in the religion of the judges as it was headed by a Sikh Judge followed by judges from other religions namely, Christianity, Islam, Parsi, and a Hindu judge. In this case, Shayara Bano along with 4 other Muslim women was subjected to talaq e biddat also known as instant triple talaq. They demanded that talaq e biddat should be declared unconstitutional because they believed that it violated their fundamental rights. Hence the five-bench constitution bench mentioned before they were formed. It is also quite ironic that there was no women judge on the bench given the fact that the case dealt with gender justice. The verdict of this case was quite unexpected as the Supreme Court neither constitutionally banned nor legally, instead, they set aside the Muslim Personal law related to triple talaq. 2 out of the 5 judges namely CJI Khehar and Justice Nazeer said this law cannot be banned and the other 2 judges namely justice R.F.Nariman and Justice U.U.Lalit declared it unconstitutional. It was read perhaps for the first time that a Muslim Personal Law is also a fundamental right as the law comes under the religion of Islam and people have the right to practice any religion as a fundamental right. Thus, they said the law must not be banned.

On the other hand, the other two judges declared that the act was arbitrary, that is without any application of logic and also violating the fundamental rights of the women, the law is unconstitutional. They read that the Muslim personal is a pre-constitutional law that is not arbitrary and thus is to be banned. The last judge, Justice Kurian Joseph said that triple talaq is unislamic. He went on to justify his statement by stating that for talaq to occur, there are two prerequisites for the same. Justice Kurian Joseph said that for talaq to be valid, there must be reconciliation and arbitration and that in the form of triple talaq, there is no scope for either as it is irrevocable. Reconciliation and arbitration are two essentials of Islam divorce law where both parties may plan to reunite after marriage. Even though the judges did not declare it unconstitutional, it was sent forth to the parliament for implementation. Eventually, on 28 December 2017, the Lok Sabha passed the bill with a majority. 

The question here is whether the passing of the bill is a violation of the Islamic principle or a stepping stone toward women’s empowerment. 

We can see how patriarchal the laws are as the only way in which Muslim women can get separated from their Muslim husbands is by Talaq-e-Tafweez. The wife can approach the court for the dissolution of the marriage under the Muslim Marriage Act, of 1939 if any of the said conditions are practised by the husband. Moreover, it is like an agreement, they don’t have the option to pronounce talaq in different ways as Muslim men do. When talaq-e-biddat was banned in Shayara Bano v. Union of India., some sort of legal protection was awarded to the Muslim women and this landmark judgment was a ray of hope for them. 

Under the Muslim Women (Protection of Rights on Divorce) Act, 1986, Muslim women at the time of divorce can ask their husbands for maintenance only until the Iddat period. If the woman is not in a position to maintain herself and she has not married again, she is not entitled to ask her former husband for maintenance. Its constitutional validity was challenged in the landmark case of Daniel Latifi & Anr., v. Union of India.^[1], where it was argued that the rights of Muslim women are violated under articles 14, 15, and 21 of the constitution. Therefore, it was held that women are to be awarded maintenance under section 125 of CrPC. This section ensured that women in general is protected from destitution and vagrancy and were secular in nature.

These two landmark cases ensured the protection of the rights of women and a better position in society along with giving a wide interpretation of article 44 and the Uniform Civil Code. 

CONCLUSION

Men under Muslim law have the right to marry 4 women at a time whereas women can contractually enter only a single marriage. This clearly shows the patriarchy that women face and their plight when compared to men. In the present world of advanced science, technology, and advanced thinking, where there are different methods that have been developed for the rescue of people like adoption, IVF, etc. the procreation capacity of women cannot be considered a justification for polygamy. In such a scenario, UCC needs a safe and secure future for women in society. This is an important issue in the current scenario because, in many of Islam-practicing countries like Iran, Tunisia, Pakistan, etc. polygamy has already been abolished. It is high time for a country like India which give immense importance to human rights and equality to consider the same.

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ENDNOTES:

1. Daniel Latifi & Anr., v. Union of India., (2001) 7 SCC 740

This case analysis is done by Vishal Menon, from Symbiosis Law School, Hyderabad.

Introduction

Transgender¹ or the third sex denotes those people who cannot align themselves to their given respective biological genders with their inherent biological features. They are usually born as male or female but their innate perseverance of gender turns out to be different from their bodily features. Their self-proclaimed gender identity doesn’t match with their sex leading to the discrepancy in their gender orientation. Transgender, transsexual, and hijra are synonymous with each other and are used to denote them.

Since the dawn of human civilization, the existence of transgender people has been acknowledged but they have been devoid of subsequent approval from mainstream society. Even in this 21st century, such people are viewed as taboo and are subjected to persecution and a state of constant denial. Shame and stigma still continue to characterize such subjects in both public and private spheres thus engendering grave misconceptions. They are systematically denied equal rights in spheres of education, employment, marriage, divorce, inheritance, property, adoption, etc. The rudimentary reason for their denial of equal rights is ambiguity in recognition of their gender status as most of the civil rights especially succession, inheritance, marriage, and property rights are gender-specific and the policymaking in India has been always conceived primarily in respect of only two genders i.e. male and female, thereby preventing them from exercising their civil rights in their desired gender.

National Legal Services Authority vs Union of India

The Supreme Court in its landmark judgment of National Legal Services Authority vs Union of India² declared the transgenders as the third gender and endowed them with the right of self-identification of gender as female/ male / third gender. This self-perceived gender identity forms a very crucial part of one’s right to life under Article 21 of the Indian Constitution. The two-judge bench affirmed their entitlement to the fundamental rights granted to them via the constitution of India. Any denial of their fundamental rights in the civil or criminal sphere owing to their third gender is discriminatory to them. The court held transgenders as socially and economically backward classes (OBC) who are entitled to reservation in educational institutions and public sector appointments.

Constitutional Rights

Article 14 of the Constitution of India states that the State shall not deny to “any person” equality before the law or the equal protection of the law within the territory of India. The phrase “any person” includes transgender too. And article 15 prohibits discrimination against any citizen on grounds of sex. Non-recognition of the identities of transgender/hijras leads to the systematic denial of the rights of equality and equal protection of the law. Article 19 (1) (a) of the Indian Constitution describes that all citizens shall have the right to freedom of speech and expression. It guarantees one of the most basic and fundamental human rights. Expression and alignment of one’s gender is hence an obvious derivative of article 19 (1)(a). Denial of the right to express one’s sexual identity through speech and choice of romantic/sexual partner would lead to violation of Article 19

The Transfer of Property Act 1882 and Miscellaneous rights

The Transfer of Property Act 1882³ and its subsequent amendments regulate the transfer of property. The phrase ‘transfer of property’ denotes a demonstration by which a person transfers or passes the property to at least one person, or himself, and at least one different person. It basically implies the transfer of property from one person to another. The term person consists of an individual, or body of individual or company, or association. Section 5 of the Act provides that transfer of property must take place between two or more persons who are living or it must take place inter vivos. The word “person” above forth holistically includes male, female and third gender. The other property-related laws such as The Hindu Disposition Of Property Act, 1916, The Indian Easements Act, 1882, etc include the word “person” to connote and include transgender within its sphere and do not per se disqualify them from legal transactions.

Inheritance Laws

The inheritance and succession laws lay down rules pertaining to the devolution of property on the death of an individual. The property is devolved on the basis of the relationship between the deceased and the inheritor. The succession laws in India are governed by the respective personal laws of the religious communities that chiefly recognize inheritors into the watertight compartments of the male and female genders. In order to claim property rights, transgenders are required to recognize themselves as male or female.

The Hindu Succession Act 1956⁴ which governs the inheritance of properties is completely silent pertaining to the rights of transgender. It explains who is Hindu and whom all comprise the inheritance schedule (such as son, daughter, spouse, etc.) within the said definition. The Act establishes a comprehensive and uniform system of inheritance. Ownership over the property is granted only to males and females thereby excluding the third gender. Such trans people are devoid of property rights and subject to extreme prejudice and vulnerability. They have to align their genders to respective categories of either male or female in order to claim property rights. So they have to establish their gender identity as per the one assigned to them at their birth certificate. Moreover, trans people are not entitled to the status of legal heir of their parent’s separate property nor coparcener in the Joint Hindu Family with their gender identity.

Similar to the line of succession rules of The Hindu Succession Act, the personal law of Muslims i.e. Shariat too follows similar rules pertaining to transgender property rights. Indian Succession Act, 1925 governs property inheritance of Christians. Notably, Section 44 of the act has included transgender and elucidates upon their inheritance of the ancestral property.

THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019

THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019⁵ has made a decent effort to protect the rights of transgender and promote their welfare by prohibiting discrimination on grounds of education, employment, healthcare, movement, access to goods and services, choice of occupation, etc. The act has sought to remove discrepancies in unfair treatment with regard to the right to reside, purchase, rent, or otherwise occupy any property. Section 4(2) of the Act provides the right to self-perceived gender identity. Section 5 of the Act provides that a transgender person could be perceived as third gender (transgender) by making an application to the District Magistrate for issuing a certificate of identity as a transgender person. But the act does not delineate anything about property rights thereby perpetuating lacunae in the system.

Evolving Sphere

Recently States such as Uttar Pradesh⁶, Uttarakhand, etc have sought to enforce progressive laws on property inheritance of transgender people. It has successfully passed an amendment to include transgender people in the UP Revenue code wherein they will be included in the inheritance nomenclature. The transgender people will now be recognized as members of a landowner’s family and will hold an equal right to inherit agricultural property.

Conclusion

The SC judgment in the NALSA case coupled with THE TRANSGENDER PERSONS ACT, 2019 has sought to create a level playing field by endowing trans people with the right to self-identification and creation of the label of the third gender. Transgenders cannot be denied the right to property per se as they have the absolute right to inherit family property unless disqualified by law. The State must strive to ensure equality of rights and promote the holistic development of the trans community as a whole.

References:

1. FAQs, https://transequality.org/issues/resources/frequently-asked-questions-about-transgender-people
2. WP (Civil) No 400 of 2012
3. https://www.indiacode.nic.in/bitstream/123456789/2338/1/A1882-04.pdf
4. https://www.ijlmh.com/wp-content/uploads/2019/03/Inheritance-Rights-of-Transgender-A-Cry-of-Humanity.pdf
5. https://www.news18.com/news/buzz/why-transgender-people-still-have-to-go-through-hoops-to-get-married-or-inherit-property-in-india-2842545.html

This article is written by Riya Ganguly, 2 nd year BBA LLB student at Bharati Vidyapeeth New Law College, Pune.

Introduction

India, a country with many ideologies, religions, dialects, castes, and topography, represents unity and integrity. However, when it comes to the Varna System, which divides Indians into Brahmins, Kshatriyas, Vaishyas, and Shudras, there is no such unity displayed (Scheduled Casts, Scheduled Tribe, and Other Backward Communities, the most oppressed ones). As a result, the founders of the Indian Constitution established the principle of the reservation to ensure that every citizen’s social, political, educational, and economic rights and dignity be protected equally.

Current Position

In India, the caste system is profoundly founded in certain theological and social views that are highly conservative, and it has eventually estranged countrymen while categorizing ethnic and minority groups. This socioeconomic marginalization stems from the nebulous and nonsensical Principle of Purity and Pollution, which states that the lower castes are mostly linked with harmful vocations and are hence stigmatized by the society’s mainstream population. The Scheduled Castes (SC), Scheduled Tribes (ST), and Other Backward Classes now make up more than half of the country’s population (OBC). Since the dawn of time, the Indian civilization has recognized significant social, educational, and economic disparities among its citizens. Though there was no caste-based divide in Vedic civilization, the rise of Brahminical culture in the Indian subcontinent brought with it the active form of class and caste structure.

The Constitutional provision of reservation

Article 14
Article 14 emphasizes two points: equality before the law and equal protection under the law. Article 14 imposes a duty on the state for the benefit of all people living in India’s territory. As a result, residents are not the only ones who gain from Article 14. Every natural or artificial person, whether a citizen or an immigrant, is entitled to the protections afforded by this article. The reality, on the other hand, frequently paints a different picture.

Article 15(4)
“Nothing in this article or clause (2) of Article 29 shall prevent the state from making any provision for the advancement of any socially and educationally backward classes of citizen or the Scheduled Castes and the Scheduled Tribe.” Such “special provision” as are permissible under clause (4) of Article 15 must, However, those specific provisions are for the progress of persons who fall into those categories, and thus they are not for the advancement of those who are not covered by this clause. Even clause (4) of Articles 15 and 16 cannot be applied to all the vague purposes of the reservation. In the State of M.P v Mohan Singh the Supreme Court verdict that though prisoners were from the backward class they will be equally liable for punishment as of other prisoners as they have broken the law.

Article 16(4B)
“Nothing in this article shall prevent the State from considering any unfilled vacancies of the year which is reserved for being filled up in that year following any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered
together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent reservation on the total number of vacancies of that year”.

The 50% Rule
In Indra Sawhney vs Union Of India, 1992, the court covered caste-based reservation, ruling that “No reservation or preference provision may be sought with such eagerness as to demolish the fundamental notion of equality.” The Janata Party administration established the Second Backward Groups Commission, or Mandal Commission, in 1979 to identify India’s socially and educationally backward classes. Its chairman is Bihar MP Bindheshwar Mandal. At the time, India had established reservations for Dalits and Adivasis. The Mandal Commission’s report, published in 1980, proposed that quotas be provided to the Other Backward Classes, a large group of castes that fundamentally fulfill the caste system’s “shudra” label. The report was kept in cold storage after Congress regained power shortly after it was filed. Another non-Congress administration, this time led by VP Singh, took a decade to implement the Mandal Commission’s recommendations, sparking widespread protests and the Indra Sawhney case in the Supreme Court.

The concept of ‘Creamy Layer’:
The Supreme Court of India gave birth to the concept of a “Creamy Layer” because the Indian Constitution does not provide for it. It generally refers to that backward caste be it SC, ST, OBC, or even any unreserved one who may be regarded as untouchables or not got enough land, money to live a healthy life and their children will not be able to get the reservation. For the first time, the term creamy layer got introduced by the Sattanathan Commission in 1971 which reported that the “creamy layer” should be exempted from the OBC reservation of civil services, and with that, the “creamy layer” principle has been laid down by Supreme Court for the exclusion of the advanced sections of the backward class groups for reservation. However, it ultimately divided society into backward and forward classes.

Concluding Remarks & Suggestions:

The constitution’s framers aspired to create a casteless and classless society. They wanted to uplift the underprivileged and provide them with a decent existence by concentrating on their job, education, and social standing. In a nutshell, the principle of the reserve was ingrained in the foundations of Equity and Justice. However, over time, the whole thing went off the rails. As a result of evaluating different aspects of the government’s reserve policy covered under Articles 15 and 16, certain flaws in reservation policies have been identified. The authors’ humble proposals for eliminating such shortcomings and achieving the desired aims of reservation policy is as follows:

Despite the government’s haste in implementing the 10% quota for Economically Weaker Sections in the unreserved category, it is past time for it to rethink its strategy on defining poverty levels and ensure that all poor and needy individuals are included.

Above all, the authors argue that it is past time to focus on the fundamental difficulty that the Reservation Laws face, which is nothing more than a defective system for implementing or enforcing the laws or policies that have been enacted. The true beneficiary is poor in information, which is a major worry right now.

Written by Hemant Bohra student at School of Law, Lovely Professional University, Punjab.

Citation of the case

AIR 2018 SC 4321; W. P. (Crl.) No. 76 of 2016; D. No. 14961/2016.

Date of the case

6 September 2018

Petitioner

Navtej Singh Johar & Ors.

Respondent(s)

Union of India & Ors.

Bench/Judges

Dipak Misra, R. F. Nariman, D. Y. Chandrachud, and Indu Malhotra.

Statutes Involved

The Constitution of India, The Indian Penal Code.

Important Sections/Articles

Art. 14, 15, 19, 21, 25 of the Constitution of India, Right to Privacy under Fundamental Rights, S. 377 of the Indian Penal Code.

INTRODUCTION

Navtej Singh Johar V/s Union of India¹ was one of the most critical cases, which changed our Indian laws and conveyed us with a superior understanding of those laws. Right to Life under Art. 21 of The Indian Constitution isn’t just with regards to allowing an individual to live, yet permitting everybody to live they need to live, in any means not harming those of others. Neither The Indian Constitution discusses the Right to Equality on a separate premise. Each living being is to partake in those freedoms with practically no segregation or imbalance.

An individual’s Natural Identity is to be treated as fundamental. What an individual is brought into the world with is normal, the same way the character an individual is brought into the world with is regular and is to be regarded and acknowledged as opposed to being scorned or peered downward on. Crumbling or deterring an individual’s character and personality would be something like pounding the upsides of Privacy, Choice, Freedom of Speech, and different Expressions. For long, the transsexual local area has been peered downward on, to which once Radhakrishnan, J. expressed, Gender character alludes to every individual’s profoundly felt inside and individual experience of orientation, which could compare with the sex relegated upon entering the world, including the individual feeling of the body which might include an openly picked, adjustment of real appearance or capacities by clinical, careful, or different means and different articulations of orientation, including dress, discourse, and peculiarities. Orientation personality, along these lines, alludes to a singular’s self-distinguishing proof as a man, lady, transsexual, or other recognized class. Numerous strict bodies have gone against the Carnal intercourse against the Order of nature and some remember it as a demonstration disparaging the protected idea of Dignity. The Navtej Singh Johar V/s Union of India was the milestone case which prompted the struck down of S. 377 of The Indian Penal Code, as it expressed – Whoever deliberately has licentious inter­course against the request for nature with any man, lady or creature, will be rebuffed with 1[imprisonment for life], or with impris­onment of one or the other depiction for a term which might stretch out to a decade, and will likewise be responsible to fine.

BACKGROUND OF THE CASE

Writ Petition (Crl) No. 76 of 2016 was petitioned for proclaiming the right to sexuality, right to sexual independence, and right to the decision of a sexual accomplice to be essential for the right to life ensured under A. 21 of the Constitution of India and to pronounce S. 377 of the Indian Penal Code to be unlawful. Mr. Arvind Datar learned senior guidance showing up for the writ applicants presented that the two-Judge Bench in Suresh Kumar Koushal and another v. Naz Foundation had been directed by friendly ethical quality in light of majoritarian discernment while the issue, in reality, should have been bantered upon in the setting of sacred ethical quality. Likewise in a Nine-Judge Bench choice in K.S. Puttaswamy and another v. Association of India and Ors., have thought that sexual direction is a fundamental part of freedoms ensured under the Constitution which are not formed on majoritarian discernment. Mr. Arvind Datar expressed that he doesn’t expect to challenge the piece of S. 377 that connects with licentious intercourse with creatures, he limits consenting demonstrations between two grown-ups. The assent between two grown-ups must be the essential pre-condition. If not, the kids would become prey, and insurance of the youngsters in all circles must be monitored and ensured.

FACTS OF THE CASE

Navtej Singh Johar, an artist alongside Sunil Mehra a columnist, a culinary specialist Ritu Dalmia, hoteliers Keshav, Aman Nath, and a Businesswoman Ayesha Kapur, all in all, documented a writ request in the Supreme Court looking for a presentation of the right to sexuality, right to sexual independence and right to the decision of a sexual accomplice to be important for the right to life ensured under A. 21 of the Constitution of India and to pronounce S. 377 of the Indian Penal Code to be unlawful, as it was impeding the privileges of the LGBT people group. It was expressed that this segment not just abused A. 21 yet in addition A. 15, 19 alongside the Right to Privacy under the Fundamental Rights in The Indian Constitution. There had likewise been a few cases in the past like the Naz Foundation v. Govt. of N.C.T. of Delhi² and Suresh Kumar Koushal v. Naz Foundation³, which were likewise kept in thought during this case.

ISSUES RAISED

1. Whether the rationale adopted in the Suresh Kaushal judgment was proper or not?
2. Whether S. 377 violates A. 14 and 15 of the constitution?
3. Whether S. 377 infringes the right to privacy under A. 21?
4. Whether S. 377 has a ‘chilling effect’ on A. 19 (1) (a) by criminalizing gender expression by the LGBT community?

CONTENTIONS OF THE PETITIONER

• The Petitioner had lamented that the individuals from the LGBT people group were denied the right to life ensured by Art. 21 of the Constitution of India.
• The S. 377 of The Indian Penal Code conflicted with the A. 14, 15 of the Indian Constitution as they, as an individual were dealt with inconsistent to other people and segregated on the premise of sex of an individual’s sexual accomplice, and they, had to not to pick an accomplice of their enjoying.
• 19 of The Indian Constitution out of totally was the most cut off, as the local area was denied to communicate their sexual personality through discourse and decision of an accomplice of their enjoying.
• Right to protection under the Fundamental Duties was being impacted as they were evaded by society on finding their specific decision of living.
• It was encouraged to the statement of the S. 377 of The Indian Penal Code, illegal and perceiving the right to sexuality, right to sexual independence, and right to the decision of the sexual accomplice to be essential for A. 21 of the Indian Constitution.

CONTENTIONS BY THE RESPONDENTS

• The Union of India, taking a nonpartisan side passed on the make a difference to the Hon’ble Court by commenting “It left the topic of the sacred legitimacy of Section 377 to the insight of the Court”. Furthermore, found out if the law set down in Suresh Kumar Koushal v. Naz Foundation, is right or not.
• Shri K. Radhakrishnan, senior guidance, for the benefit of intervenor-NGO, Trust God Ministries contended, there is no private freedom to mishandle one’s organs and that the hostile demonstrations prohibited by S. 377 are submitted by manhandling the organs. Such demonstrations, according to the intervenor, are undignified and overly critical to the protected idea of nobility and on the off chance that any infraction is caused to the idea of poise, it would add up to established off-base and sacred shamelessness.
• The people enjoying unnatural sexual demonstrations which have been made culpable under S. 377 are more helpless and defenseless against contracting HIV/AIDS, additionally, the level of commonness of AIDS in gay people is a lot more prominent than heteros, and the right to protection may not be stretched out to empower individuals to enjoy unnatural offenses and in this way contact AIDS.
• Mr. Suresh Kumar Koushal, intervenor, by a composed accommodation contended in that that the contention of the candidates that consensual demonstrations of grown-ups in private have been decriminalized in many regions of the planet and, hence, it should be decriminalized in India.
• On the occasion consenting demonstrations between two same-sex grown-ups are barred from the ambit of S. 377, then, at that point, a wedded lady would be delivered remediless under the IPC against her bi-sexual spouse and his consenting male accomplice enjoying any sexual demonstrations.
• For the benefit of Raza Academy, the intervenor, through its learned direction Mr. R.R Kishore, it was contended that homosexuality is against the nature request and S. 377 properly precludes it.

JUDGMENT

1. S. 377 of The Indian Penal Code, to the extent that it applied to the consensual sexual direct between the grown-ups in private was announced Unconstitutional.
2. The choice in the Suresh Kumar Koushal v. Naz Foundation (1) was overruled.
3. Basic privileges are accessible to the LGBT people group even though they comprise a minority.
4. S. 377 is violative of A. 14 being entirely discretionary, unclear, and has an unlawful goal.
5. S. 377 punishes an individual in light of their sexual direction and is consequently oppressive under A. 15.
6. S. 377 ignores the right to life and freedom provided by A. 21 which includes all parts of the option to live with poise, the right to protection, and the right to independence and self-assurance concerning the coziest choices of an individual.

CONCLUSION

The judgment for the situation was notable as it struck down the S. 377 of The Indian Penal Code and it allowed them to the Homosexuals and every one of the individuals from the LGBT people group to unreservedly put themselves out there and to stroll with a head high in the general public. They don’t need to fear being evaded by society and their right to security being pulverized and pronounced as hoodlums because they communicated their friendship and affections for their sexual accomplice.

This judgment was an overjoy for each individual from the LGBT people group and different Heterosexuals. The choice was valued even abroad by different NGOs and gatherings named The Human Rights Watch, in this manner acquiring global acknowledgment. Different translations were made to clarify what laws said and that they are to cling to and everybody in the general public is to be dealt with similarly.

References

1. Navtej Singh Johar vs Union Of India Ministry Of Law And … on 8 January, 2018. indiankanoon.org.[Online] https://indiankanoon.org/doc/119980704/.
2. Naz Foundation v. Govt. of NCT of Delhi. en.wikipedia.org. [Online] https://en.wikipedia.org/wiki/Naz_Foundation_v._Govt._of_NCT_of_Delhi#:~:text=Naz%20Foundatio
   n%20v.%20Govt.%20of%20NCT%20of%20Delhi,violation%20of%20fundamental%20rights%20protected%20by%20India%27s%20Constitution..
3. Suresh Kumar Koushal and another v. Naz Foundation and Others. www.desikanoon.co.in. [Online] https://www.desikanoon.co.in/2014/02/suresh-kumar-koushal-anr-v-naz.html.

Written by Sara Agrawal student at Sinhgad Law College, Pune.

Gender is an essential part of human life. Our gender can have an impact on our life duties, rights, and responsibilities, as well as our decisions. These choices and actions are then limited by the laws that govern us, and laws play a significant role in pursuing our gender identity. Today, we live in a society where gender equality and civil rights are promoted by various cultures. To comprehend gender-related rights and legislation, however, one must first dismantle the gender idea. It is a socially and culturally constructed term that separates different qualities between men and women, as well as boys and girls, according to the United Nations. This has something to do with a person’s feminine and masculine qualities.

In fact, when determining gender, one must be aware of the differences in gender and sex definitions. Gender has a social dimension, but sex is a biological trait of a human being generated by the association of its chromosomes and hormones, as previously stated. Margaret Mead described the pioneering concept of separating sex and gender during ancient periods in her book Gender and Temperament in Three Primitive Societies. Gender equality is much more than just men and women. Gender-neutral policies are defined as laws and initiatives that have no unequal influence on multiple groups, whether negative or positive. However, if differences in the social and cultural settings of the groups are not taken into consideration when designing policy, gender equality might be reduced to gender discrimination. This could lead to a system that is useless and fruitless. In reality, the importance of gender equality is linked to civil rights. The United Nations supports a similar theory, stating that equality between men and women is required to uphold human rights.

Section 375 and 376 of the Indian Penal code, 1860. The author discusses the conviction of a man for the rape of a lady. Apart from rape laws, there has been a slew of other measures, such as the Domestic Violence Act of 2005, that are gender-specific and only affect women, such as sexual misconduct or non-consensual, where a perpetrator is invariably a man. Increased societal knowledge of these crimes reveals that the primary motivation for conducting a sexual assault or any form of violence may not only be to satisfy sexual cravings, but also to demonstrate the offenders’ power.

Before any positive outcome in society, we, as individuals, must comprehend the societal ramifications of various movements, society in general, and the backlash. As a result, in order to comprehend society and effect change, one must first grasp its history and evolution across time in order to tackle and address contemporary difficulties. It has been taken into account that, historically, the agenda of Indian women has always focused on improvements in the law concerning rape. Women have always struggled with the expanding concept of rape.

The Mathura rape case was one of the most well-known rulings in the world of law, and it was also the catalyst for numerous changes in criminal law. It is considered to be one of the most important instances in the realm of criminal law and the subject of rape. The Supreme Court ruled in this case that the young woman who had been raped by police officers had given her consent because there were no signs of wounds in the case and because the absence of wounds indicated agreement. Following this case, four law professors wrote an open letter to the Chief Justice of India, expressing their displeasure with the situation. This case sparked a trend in which the victim was no longer blamed and the guilt was shifted to the perpetrator. Another demand made by the protestors was for in-camera procedures and the non-disclosure of the identities of the rape victims.

Gender-neutrality is a nebulous term that has yet to be completely defined. So, what exactly does gender-neutrality entail?

To understand the preceding question, we must first comprehend the concept of “gender” The term “gender” has traditionally been defined as a person who falls into one of two categories: male or female. This concept, however, excludes the “transgender” third gender, which includes the “hijras” and “Kothi’s” as well as communities where people are born with both female and male organs or communities that do not define themselves as belonging to any gender.

The Binary Gender and Gender Neutrality

The fact that males and females are just two races is referred to as gender identity. It rejects the gender-sex divide as a concept. Furthermore, because it only believes in the existence of two genders, it argues that all human beings can act entirely in a feminine manner if they are female, and in a masculine manner if they are male. It completely rejects the idea of the third gender and implicitly criticizes the presence of LGBTQ people. The existence of these ideologies has a direct impact on the civil rights of persons from developing countries. Furthermore, it is particularly unjust to operate under the assumption that the LGBTQ culture does not exist. Only China has seen an increase in its LGBTQ population in recent years, with 3.5 percent of adults in the United States identifying as lesbian, gay, or bisexual. In 2017, about 1.1 million individuals aged 16 and up identified as LGBT and only China has seen an increase in its LGBTQ population in recent years. As a result, before enacting gender-neutral laws and legislation, it is necessary to recognize the meaning of identity. This is critical to ensure that no country draughts a gender-neutral law that favors only two genders while rejecting the others, as is the case with the gender-binary delusion.

It’s crucial to remember that gender isn’t limited to two or more widely recognized ideas. Gender neutrality does not mean promoting policies that favor women and force us to believe that men cannot be raped. Gender neutrality, as the name implies, is a neutral concept that should not be slanted against any group in the country. “It’s time we all understood gender as a spectrum, rather than two sets of conflicting values” Emma Watson stated more eloquently.

Why laws should be gender-neutral?

The initial presumption that women can never be predators stems from the fact that, despite the fact that the laws’ definition of rape mentions multiple ways in which an action could be constituted rape, they would still be perceived as penile-vaginal intercourse by the general public. Because men are often constructed stronger than women in biological respects, this gives the general public the impression that only men can establish dominance.

The second presumption stems from the idea that males can never be raped because they are excited by any sexual act, meaning that they have given their consent. This is to imply that arousal in the male body can be produced by a variety of factors, including the desire to be a willing participant. However, studies have shown that arousal can be produced by a variety of factors, including fear, embarrassment, and anxiety, all of which can lead to erections. There is now an increasing acceptance of the idea that male exploitation does happen. There have also been a few industrialized countries, such as Canada, Finland, Australia, the Republic of Ireland, and the majority of the states in the United States of America, that have accepted unbiased and gender-neutral legislation.

Although the Preamble of India emphasizes ideas of equity and social justice, certain policies and regulations are in direct opposition to these objectives. The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redress) Act of 2013 focuses on safeguarding women from all kinds of workplace harassment. It further states that the purpose of this act is to protect women’s fundamental rights to equality and dignity. The point of dispute, however, is that in India, fundamental rights to equality and dignity are not gender-specific, and then how sexual abuse occurs in the workplace. This Act reaffirms the notion that violence is confined to women and that males, or any other group, should never be subjected to it.

In fact, rape is defined as an act of non-consensual sexual activity perpetrated against a woman under section 375 of the Indian Penal Code. This section is also based on the assumption that only a man can rape and only a woman can be raped. The notion of gender equality is supported by a number of judgments and statutes. Iceland, for example, was the first country to establish an equal pay clause in 2018, promoting the idea of a gender-neutral policy. Businesses with 25 or more employees must now submit certifications demonstrating compliance with the fair pay provision. This aims to eliminate the significant salary disparity between men and women, promoting gender equity and equality. In the view of the law, Article 14 states that everyone has the right to equality. This article claims that everyone, nevertheless their gender, is equal.

Article 15 prohibits separation on the basis of gender, i.e., no one can discriminate on the basis of a person’s or a case’s sex, creed, or any other type of discrimination.

Despite the fact that male assaults are less common than female assaults, it is important to recognize that guys are not exempt from the need for legislation to protect them. Equal rights for men in cases of sexual assault does not mean that women are deprived of their rights. Giving males a platform to speak out about their assault and the ability to file complaints would, on the other hand, lessen the toxic masculinity of asserting dominance, hence reducing assault on women, as an assertion of dominance has been the major source of violence against women.

The fear of being judged by society and fearing a backlash from a society that maintains the stigma that “men cannot be victims of the attack” is one of the reasons why men do not open out about being victims of sexual assault against them.

References

1. The Need for enacting Gender-Neutral Laws: A Critical Analysis – Lex Jura Law (wordpress.com)
2. Need for Gender Neutral Laws in India – iPleaders

This article is written by Vidushi Joshi student at UPES, Dehradun.