Tag: #Article19

Abstract – The historical foundations of Indian experiences and conceptions of property and wealth are considerably different from those of Western countries. The current property system, as we know it, sprang from unique events in Europe throughout the 17th and 18th centuries, and hence its lessons were not generally applicable. The concept of property rights is another economic sector where the solution is both complex and crucial. The author attempts to determine the motivation behind this unfortunate move.

INTRODUCTION

Property rights are not recognized as basic rights in the Indian Constitution. The 44th amendment, passed in 1977, made the right to acquire, keep, and dispose of property no longer a basic right. However, Article 300 (A) was added to another section of the Constitution to state that no one’s property may be taken away unless by law. As a result, the basic right to property has been replaced with a statutory right to property.

Article 19 (1) (f)
By providing an absolute basic right to property, the Indian constitution endeavored to reconcile the right to property with the right to recompense for its acquisition, balancing it with reasonable restrictions, and adding a further fundamental right of compensation if the properties are acquired by the state. Article 19(1) (f), which was balanced by Article 19(5) and the compensation article in Article 31, demonstrated this. When the state discovered that an absolute right to property and people’s ambitions were not the same, the legislature was obliged to change the constitution to make the aforementioned right to property subject to social welfare.

DOCTRINE OF EMINENT DOMAIN

This theory allows a sovereign to purchase private land for public use if the utility of the land can be shown beyond a reasonable doubt. In the current setting, this concept resurrects the age-old conflict over state authority vs. individual rights. Here comes the DID (Growth Induced Displacement), which refers to the forcible removal of communities from their homes, often from their ancestral lands, for the sake of economic development, and is considered a violation
of human rights on an international level.

Essential elements of this Doctrine:

• A piece of property is seized for public use.
• The seized property has been compensated.

As indicated above, the deleted Article 31 imposed two constraints on Eminent Domain power.

SUPREME COURT’S APPROACH TO THE RIGHT TO PROPERTY

The approach of the Supreme Court regarding the right to property may be separated into two phases:-

1. The time till the right to property was a fundamental right (pre-1978)
2. The time after the conversion of the right to property as a constitutional right (post-1978)

Right to Property as Fundamental Right
During this time, the Supreme Court went out of its way to oppose the right to property and the right to accumulate wealth, as well as to hold that, concerning Article 39, the distribution of material resources to better serve the common good and the restriction on wealth concentration, the right to property and the right to accumulate wealth were unconstitutional. The judiciary, on the other hand, is in charge of taming the socialist state’s abuses of the right to property and wealth. During the Liberalisation period, the Supreme Court endeavored to reinterpret the rules
that safeguard the right to property to make the protection genuine rather than illusory and to reduce the claim of wealth distribution.

However, this has been a piecemeal approach, and much more has to be done to restore the constitution’s original balance. This indicates that property acquisition is not just temporal but must also adhere to spiritual rules. Indian ideas understand that while the property can be enjoyed that has not been gained exactly according to the law, it cannot be termed the person’s true property.

Right to Property as Constitutional Right
The backlash against Articles 19 (1) (f) and Article 31 of the Constitution as Fundamental Rights began almost immediately after it was enacted in 1950. Thus, times have changed drastically in recent years. India is no longer viewed solely from the perspective of socialist politicians. It’s India Shining as viewed through the eyes of financial behemoths like the Tatas, Ambanis, and Mahindras, who have an inexplicable passion for capitalism, money, and markets. There’s another point of view. Industrialists and developers are vying for land across the country to establish Special Economic Zones.

Previously, the Supreme Court had defined some basic and unchangeable parameters and features of the Indian state and constitution, such as the country’s democratic form of government, as its basic structure, which could not be changed even by constitutional amendment, in the famous Kesavanand Bharti case of 1973. However, in his decision, Justice H.R. Khanna made a brief remark to the effect that citizens’ fundamental rights may not constitute a fundamental component of the Constitution.

Flaws in the 44th Amendment Act
The amendment was passed without considering the following disadvantages:
a. The close relationship between property and other fundamental rights, which the Janata Party promised to restore;
b. The impact of this change on the legislative power to acquire and requisition property;
and
c. The relationship between state policy directive principles and fundamental rights.

Implications
a. The Right to Property would no longer be a Fundamental Right, but rather a Constitutional Right. Only the High Courts, not the Supreme Court, can now question the legislation that infringes the fundamental right to property.
b. With the repeal of Article 31, the government was no longer obligated to recompense anyone whose land had been taken under the authority of a statute enacted by Parliament.

As of now, it is beyond the scope of my research and understanding to determine whether Proposition (ii), i.e. property deprivation without compensation, is still legally tenable, especially in light of the Supreme Court’s ruling in the Maneka Gandhi case, which stated that every provision of the Constitution must be explained in a fair, just, and reasonable manner. As a result, any law that deprives a person of his property must do so in an explainable manner. It may be claimed that the only legitimate way to deprive someone of their property is to provide them with appropriate recompense. This debate, however, is not entirely relevant to the topic of this article.

CONCLUSION

Personal rights such as the ability to vote, freedom of expression, and personal liberty were once regarded to have a greater position in the hierarchy of values than the right to property. As an outcome, judges are expected to strike down legislation that infringes fundamental rights than those that infringed property rights. However, courts of law have determined that the distinction between the two is illusory and that no one appears to have given any consideration to why property rights are not personal rights. In 1972, the Supreme Court of the United States, which had priorly provided a warm welcome to the difference between property and personal rights and accorded the former a preferred status, laid to rest both the difference and the preferred status of so-called personal liberties or rights by announcing that the dichotomy between property liberties and personal rights is a false one.

Whether the property in conflict is a home, a welfare check, or a savings account, the right to enjoy property without illegal deprivation is an aspect of a personal right, just like the right to travel or the freedom to speak. In reality, the human right to liberty and the personal right to property are fundamentally intertwined. Without the other, neither could have significance.

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

ABSTRACT

Interpretation of Article 21 has been given the widest amplitude post the judgment of Maneka Gandhi and since then it has included rights such as the right to food, the right to shelter, and a host of other rights.

INTRODUCTION

Article 21 is one of the most vital and indispensable fundamental rights that is enshrined in part III of the Indian constitution. It guarantees the right to life and personal liberty to each and every individual irrespective of his citizenship and states that no individual would be deprived of the above-mentioned rights except according to the procedure established by law.

The interpretation of article 21 was initially given a very restrictive and narrow meaning soon after the commencement of our constitution. It was after the landmark judgment of Maneka Gandhi v UOI¹ that the scope of article 21 was drastically widened. Prior to Maneka Gandhi’s judgment, Article 21 guaranteed the right to life and personal liberty only against arbitrary and unreasonable executive actions and not from legislative actions. The arbitrary and unfair state actions that interfered with the life and personal liberty of the individuals could be protected and upheld if it was validated by the law. However, after the judgment of the Maneka Gandhi case, it was held that Article 21 protects an individual’s fundamental right of life and personal liberty from the arbitrary, unjust and unreasonable actions of both the executive and the legislature. To deprive a person of his rights under Article 21, there has to be a valid law and the procedure prescribed by the law has to be just, fair and reasonable.

RESTRICTIVE INTERPRETATION OF ARTICLE 21

1. A K Gopalan v. UOI ²
   The petitioner contended that Article 21 must be read together with the rights encompassed in Article 19 (1) and 19 (5) as Article 19 dealt with substantive laws and Article 21 dealt with procedural laws. Moreover, the phrase “procedure established by law” meant the due process of law and included the principles of Natural Justice. The court, rejecting the above contentions gave a narrow and restrictive interpretation of Article 21 and held that Article 21 protected an individual only from those arrests and detentions that are made without the due authority of law or in other words Article 21 protected the physical liberty of a person and did not include any other rights. Moreover, the state-made laws did not include within its sweep the principles of natural justice.
2. Kharak Singh v. State of UP ³
   The court, in this case, held the domiciliary visits by the UP police that led to surveillance of the petitioner as illegal because the police action was not validated by any law and it led to an invasion of personal liberty as the term personal liberty was not only limited to prison confinement but also other forms of restrictive bodily restraint.
3. Govind v. State of M.P ⁴
   The court in this case upheld the whimsical and unreasonable domiciliary visits by the MP police which was violative of the fundamental right of life and personal liberty under Article 21 as the same was validated by Section 46 of the Police Act. Since the regulations had the force of law and were duly prescribed by the law, hence they were deemed as valid.

LIBERAL INTERPRETATION

Maneka Gandhi v. Union of India ⁵
This landmark case examined the amplitude of the phrase “personal liberty” used in Article 21. The passport of the petitioner in the given case was impounded by the government under the Passport Act 1967 in the interest of the general public. The majority judge bench, in this case, construed the term ‘personal liberty in the widest possible manner and thereby, exercising the rules of natural justice held the act of impounding of the passport as illegal. The court overruled AK Goplan and held that Article 21 was inclusive of Articles 19 and 14. The court held that in order to deprive an individual of his personal liberty, there must be valid law, prescribing a procedure and the procedure so prescribed should be fair, just, and reasonable.

The judgment of Maneka Gandhi paved way for the liberal interpretation of Article 21, thereby leading to the inclusion of a host of rights as fundamental to life and personal liberty under Article 21. These included the right to livelihood, right to clean air, right to privacy, right to gender expression, right to food, right to shelter, right to health, right to education, right to sleep, right to die, and a bunch of other derived rights.

RIGHT TO FOOD AND SHELTER

Food is one of the most crucial compelling necessities of human life after air and water. All the activities of mankind are directed towards satiation of this very need. It provides the much-needed nutrition to the human body which is vital for survival, growth, and bodily development. It is needless to further underscore its importance further given its prima facie absolute importance for the continuation of life on earth. Juxtaposed to this very importance of food for survival, there exist several lakh people in self-sufficient and food secure countries like India who die every day out of hunger and starvation. The vicious circle of the twin evils of poverty and unemployment often leads to hunger, prolonged malnutrition, and distress. Even if the direct cause of many such deaths may not appear to be from starvation prima facie, the somber reality remains unchanged that lack of food and avenues of employment often leads to prolonged periods of malnutrition, making them more vulnerable to diseases and distress, thereby, ultimately resulting in their deaths. On one hand, where the poor dies of hunger, it is even more appalling to note that the granaries of the FCI abound in food grains and often rot over there. Policy changes for appropriate nutrition requirements and distribution of food grains free of cost to the needy and destitute have to be executed with due diligence in order to correct this perpetuating wrong and ensure justice.

There is an imperative need for a paradigm shift from viewing the policy changes inequitable food distribution as acts of benevolence to that of it as the right of citizens. Various judicial pronouncements have been rendered in order to correct this perspective and ensure equity. Given the centerpiece importance of the right to food, the right to shelter also forms one of the very vital subsidiary human rights. A permanent roof on the head has traditionally been a sign of social security. It provides the much-needed material support and security for the realization of our avenues. It is an important indicator and buttress for the necessary progress and growth of the human being. The right to shelter, thus, forms an intrinsic part and parcel of the right to live with dignity.

The right to food and shelter, thus, form an indispensable and rudimentary need of human life. They are the bare necessities of life that go into everyday survival and ensure a dignified life. Given the expanding scope of Article 21, which has been given the widest possible interpretation through the various bold judicial enactments and decisions in recent times, Article 21 has included within its sweep an array of rights that have been deemed fundamental for a reasonable survival and realization of the worth of human lives.

The fundamental right under Article 21 that guarantees the right to life includes the right to live with human dignity with such basic amenities of life such as food, clothing, shelter, education, livelihood, medical care, decent environment, etc. that provide a reasonable standard of living, thereby providing scope for the development of human resources as a whole. Besides Article 21, Constitution, through the instrumentality of DPSP under Article 39 A and 47 mentioned in part IV of the constitution have also cast a positive obligation on the state to take affirmative steps, so as to meet the ends of equity and justice. Article 39A requires the State to direct its policies so as to secure all its citizen’s adequate means of employment and Article 47 directs the state to raise the level of nutrition and standard of living of its citizens by providing them avenues of shelter, clothing, education, health, and other amenities for integrated development.

The right to food and shelter can thus be enforced under article 32 of the constitution. The Supreme Court, through its various pronouncements, has rightly held these rights as fundamental to survival and has thereby kept it under the ambit of Article 21 of the Indian constitution.

1. Chameli Singh v. State of UP ⁶
   The SC held the right to shelter as a fundamental right under Art. 21 of the constitution. The court held that in given civilized societies, human living did not imply a mere animal existence, but included all those facilities that go into making the human life worthful and dignified. The right to live implied the basic human rights of food, shelter, water, medical care, education, clean environment, sanitation, and other amenities. The right to shelter not only includes the mere facility of a roof over one’s head but includes the right to have all those necessary infrastructures that enable one to live off a meaningful life and develop as a human being.
2. Francis Coralie v. union Territory of Delhi ⁷
   The Supreme Court in this case interpreted the Right to Life enshrined under Article 21 and held that the right to life included more than mere animal existence and physical survival. The right to ‘life’ was not confined to those physical faculties or limbs through which we interact with the outside world but includes the right to live with human dignity which includes all those necessities that go into survival such as food, clothing, shelter, and facilities for education and expression.
3. PUCL v. Union of India ⁸
   In this case, the Supreme Court held the right to food as a fundamental right of the people under Article 21 that guarantees the right to life. Court held that State ought to provide food grains free of cost from the surplus reserve lying with the States to the starving people such as destitute children /men/ women, aged, infirm, disabled who were unable to purchase food grains. They have the right to get fed under Article 21.
4. P.G. Gupta v. Slate of Gujarat and Ors ⁹
   The court held that the basic needs of man in any civilized society traditionally include the trinity of food, clothing, and shelter. The Right to life under Article 21 includes within its sweep right to food, right to reasonable accommodation, and right to a decent environment.
5. Kapila Hingorani vs State Of Bihar ¹⁰
   The court held that the employees of the public sector undertaking have a fundamental right under article 21 to get the salaries paid by the government as the denial of the same may lead to hunger which is a gross violation of human rights. The State cannot claim lack of resource and abdicate from its duty to pay its employees as the same would amount to a denial of basic and indispensable fundamental rights under Article 21.

Conclusion

Article 21 rightly seeks to serve the interests of all individuals irrespective of their by validating their right to life and personal liberty. By including the sets of rights that are crucial and imperative for the survival of human beings with dignity and that form an indispensable part of the basic human rights, it serves the purpose of equity, justice, fairness, and principles of natural justice.

Citations

1. AIR 1978 SC 597
2. AIR 1950 SC 27
3. AIR 1963 SC 1295
4. AIR 1975 SC 1378
5. AIR 1978 SC 597
6. (1996) 2 SCC 549
7. AIR 1981 SC 746
8. 2000 (5) SCALE 30
9. [1995] Supp. 2 SCC 182
10. 2003 Supp(1) SCR 175

Written by Riya Ganguly student at Bharati Vidyapeeth New Law College, Pune.

Equivalent Citation

Writ Petition (Civil) No. 494 of 2012, (2017) 10 SCC 1

Bench

Sanjay Kishan Kaul, Dhananjaya Y. Chandrachud, R. K. Agrawal, J. S. Khehar, S. A. Bobde, S. A. Nazeer, R. K. Agrawal, J. Chelameswar, A.M. Sapre JJ

Decided on

24th  August 2017

Relevant Act/ Section

Article 19,19(1)(a), 21 and 25

Brief Facts and Procedural History

The Government of India has launched a scheme called “Unique Identification for BPL Families.” For the initiative, a committee was also formed. The Committee suggested that a ‘Unique Identification Database’ be created for the project. The project will be divided into three phases, according to the decision. The Planning Commission of India then issued a notification on UIDAI in January 2009. (Unique Identification Authority of India). In the year 2010, the Planning Commission also approved the National Identification Authority of India Bill. The current case was filed by retired High Court Judge K.S. Puttaswamy, who is 91 years old, is against the Union of India, or the Government of India. The case was heard by a nine-judge Supreme Court bench that had been created specifically for the Constitution Bench. Following conflicting judgments from other Supreme Court benches, the special bench was constituted to assess whether the “right to privacy” was guaranteed as an independent basic right.

The case emphasized various concerns about the government’s Aadhaar program (a form of uniform biometrics-based identity card). In the near future, the government suggested that the above-mentioned plan become required for access to government services and benefits. Initially, the challenge was brought before a three-judge bench of the Supreme Court, claiming that the scheme invaded the “right to privacy” provided to Indian people by the Constitution. On account of the Union of India, the Attorney General disputed that the Indian Constitution does not give particular protections for the right to privacy. He based this on observations made at various times in the cases of M.P. Sharma vs. Satish Chandra (an eight-judge bench) and Kharak Singh vs. Uttar Pradesh (an eight-judge bench) (a five-judge bench). Following that, an eleven-judge panel determined that basic rights should not be regarded as separate, unrelated rights, upholding the dissenting opinion in the Kharak Singh case. This also acted as a precedent of following rulings by smaller benches of the Supreme Court which expressly recognized the right to privacy. Moreover, it was in this circumstance that a Constitution Bench was established, which found that a nine-judge bench should be established to assess whether the Constitution contained a fundamental right to privacy or not.

Finally, on August 24, 2017, the Supreme Court issued a landmark decision, declaring the right to privacy a Fundamental Right under Article 21 of the Indian Constitution.

Issues before the Court

• Whether the ‘right to privacy’ is a basic part of the right to life and personal liberty provided under Article 21 and also a part of the freedoms provided by Part III of the Constitution,
• And whether the judgment was taken in M P Sharma v Satish Chandra, District Magistrate, Delhi was right in the face of law?
• And was the decision taken in Kharak Singh v State of Uttar Pradesh correct in a legal sense?

The decision of the Court

On August 24, 2017, a nine-judge panel of the Supreme Court of India issued a major decision upholding the basic right to privacy guaranteed by Article 21 of India’s constitution. The Supreme Court’s historic nine-judge bench unanimously agreed that Article 21 of the Constitution secured the right to privacy as an essential aspect of the right to life and personal liberty. Privacy is a distinct and independent basic right granted by Article 21 of the Indian Constitution, according to the Supreme Court, which relied on six separate judgments. The decision’s most crucial element conveyed a broad interpretation of the right to privacy. It was clarified that the right to privacy is a broad right that covers the body and mind, including judgments, choices, information, and freedom, rather than narrow protection against physical derivation or an invasion right under Article 21. Privacy was found to be a predominant, enforceable, and multifaceted right under Part III of the Constitution. Overall, the Court overturned the judgments in M.P. Sharma and Kharak Singh because the latter found that the right to privacy was not a fundamental right guaranteed by the Constitution, and the Court found that the judgment in M.P. Sharma was legitimate because the Indian Constitution did not contain any limitations to the laws on search and seizure comparable to the Fourth Amendment in the United States Constitution. Nevertheless, the Court held that the Fourth Amendment was not a comprehensive concept of security and that the absence of a comparable assurance in the Constitution didn’t imply that India lacked a distinctive right to protection by any stretch of the imagination– and thus, the decision in M.P. Sharma was overturned. Kharak Singh’s biased perspective on close-to-home freedom was also invalidated by the Supreme Court. This viewpoint was referred to as the “storehouse” approach obtained from A.K. Gopalan by Justice D.Y. Chandrachud. The Court stated that after Maneka Gandhi, this method of seeing fundamental rights in watertight containers was abandoned.

The Court stated that after Maneka Gandhi, this method of seeing fundamental rights in watertight containers was abandoned. The Court also pointed out that the majority conclusion in Kharak Singh was internally inconsistent, as there was no legal basis for striking down domiciliary visits and police monitoring on any grounds other than privacy – a right they referred to in theory yet ruled to be unconstitutional. The Court further stated that subsequent cases maintaining the right to privacy after Kharak Singh should be viewed in light of the principles set forth in the opinion. The court also considered whether the right to life, the right to personal liberty, and the right to liberty established in Part III of the Constitution protects the right to privacy in affirmative instances. The court decided that privacy “is not an exclusive concept.” It dismissed the Attorney General’s position that the right to privacy should be ceded in exchange for the state’s welfare rights. Overall, while ruling that the right to privacy is not self-contained, the decision also outlined a legal survey standard that should be applied when the state intrudes on a person’s privacy.

It was decided that the right to privacy could be limited where an intrusion met the three-fold requirement of legality, which assumes the existence of law; need, which is defined in terms of a reliable state point; and proportionality, which ensures a reasonable relationship between the objects and the methods used to achieve them. The fourth point of this criteria was added by Justice S.K Kaul, who demanded “procedural assurances against maltreatment of such obstacles. Chelameswar, on the other hand, feels that the “overriding national interest” threshold should be applied only to privacy claims that demand “close inspection.”

The court found that the fair, just, and reasonable criteria of Article 21 should be applied to additional privacy issues and that whether or not to apply the “national priority” standard depends on the facts. The court also stressed the importance of sexual orientation in terms of privacy. It also examined the negative and positive aspects of the right to privacy, namely, that the state is not only prohibited from interfering with this right but is also required to take reasonable steps to protect personal privacy. Information privacy is part of the right to privacy, according to the ruling. Despite the fact that the court recognized the need for a data protection law, it left the burden of enacting legislation to Parliament.

References

Justice K.S.Puttaswamy (Retired). vs Union of India and Ors., 2017. | LawFoyer

Written by Vidushi Joshi student at UPES, Dehradun.

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.

CASE NUMBER

Appeal No. 273 of 1979

CITATIONS

AIR 1980 SC 898, 1980 CriLJ 636, 1982 (1) SCALE 713, (1980) 2 SCC 684, 1983 1 SCR 145

BENCH

Y Chandrachud, A Gupta, N Untwalia, P Bhagwati, R Sarkaria

DECIDED ON

9 MAY, 1980.

This reference to the Constitution Bench raises a question in regard to the constitutional validity of the death penalty for murder provided in Section 302, Penal Code, and the sentencing procedure embodied in Sub-section (3) of Section 354 of the CrPC, 1973.

FACTS OF THE CASE

Bachan Singh had been convicted of his wife’s murder and sentenced to life in jail under Section 302 of the Indian Penal Code in the previous case. After serving his term, he was released and spent about six months with his cousin Hukam Singh and his family. Hukam Singh’s family members, including his wife and kid, questioned the appellant’s presence at his apartment.

The family went to bed after dinner on the night of the crime, July 4, 1977. When Vidya Bai (daughter) was woken by the alarm about midnight, she witnessed the appellant inflicting axe blows on the face of her sister, Veeran Bai. When she tried to stop him, the appellant struck her in the face and ear with the axe, knocking her out. Diwan Singh awoke from his rest after hearing the shriek and witnessed the appellant attack Desa Singh with the axe.

The Sessions Court later found the appellant guilty of murdering three individuals, including Hukam Singh’s son, Desa Singh, Durga Bai, and Veeran Bai (Hukam Singh’s daughters), as well as injuring Vidya Bai (Hukam Singh’s other daughter). On appeal, the High Court upheld the death sentence given by the Trial Court. In addition, both the Trial Court and the High Court ruled that Vidya Bai’s injuries were inhumane.

Bachan Singh then sought a special leave to appeal in the Supreme Court, raising the issue of whether “special reasons” exist in the facts of the case, which are required for the death penalty to be imposed under Section 354(3) of the Code of Criminal Procedure.

ISSUES RAISED

• Whether or not Section 302 of the Indian Penal Code’s provision for the death penalty for murder was unconstitutional?
• Is Article 19 relevant in establishing the validity of Section 302 of the IPC’s challenged provision?
• Is Section 302 of the IPC’s disputed limb in violation of Article 21 of the Constitution?
• Is Section 354(3) of the Criminal Procedure Code, which governs sentencing, unconstitutional on the grounds that it gives the Court unguided and unrestricted discretion and allows the death penalty to be imposed arbitrarily on a person found guilty of murder or any other capital offence punishable under the Indian Penal Code if the answer to the preceding question is no?

DECISION OF THE COURT

The Supreme Court dismissed the constitutional objections to Sections 302 of the Indian Penal Code and 354(3) of the Criminal Procedure Code. The Court went on to say that the six essential rights protected by Article 19(1) aren’t absolute. For starters, they are subject to limitations imposed by an individual’s commitment not to exercise their rights in a way that harms or infringes on the rights of other members of society. This is founded on the maxim sic utere tuo ut alienum non laedas, which states that an individual must use their property in a way that does not infringe on another person’s legal rights.

Another question is whether the courts have unfettered discretion in inflicting the death penalty, as well as the nature and scope of the specific reasons. Section 354(3) of the CrPC defines “special reasons” as “extraordinary causes related to the serious nature of the offence.” In granting the death punishment, the Supreme Court established the theory of the “rarest of the rare circumstances.” For individuals convicted of murder, life imprisonment is the norm, with the death penalty being an exception. It would be unusual to use discretion under Section 354(3) of the CrPC, 1973. Only offences that shook society’s collective conscience would receive the death punishment. Only in the rarest of circumstances should the death penalty be used.

This is written by Dalima Pushkarna student at Dr Ram Manohar Lohiya National Law University, Lucknow.