Tag: #Article21

S.no	Contents
1.	Right to Suit
2.	Right to Appeal
3.	Scope of Right to Appeal in Statutory Law
4.	Historical Overview
5.	Legal Frameworks
6.	Conclusion

Right to Suit

An individual or organization has a legal entitlement known as the “right to sue” that enables them to initiate a lawsuit against another individual or organization in a court of law. This right is considered fundamental since it allows them to pursue legal action and seek remedy or recourse for any perceived harm or wrongdoing caused by the other party. Typically, the right to sue is granted to individuals or organizations who are capable of demonstrating that they have suffered legal harm or damages resulting from the actions or omissions of another party. Such circumstances may include but are not limited to a breach of contract, personal injury, property damage, or infringement of intellectual property rights, among others. It is essential to note that the right to sue is subject to legal constraints or limitations, and may not be an absolute right. Furthermore, the process of initiating legal proceedings can be intricate, requiring the guidance of legal experts to navigate it effectively.

It is crucial to acknowledge that the right to sue is not an unrestricted right, as there may be legal limitations or restrictions on the individuals or entities who can initiate legal proceedings and the situations in which they can do so. Moreover, the process of commencing a lawsuit can be intricate and costly and may necessitate the guidance of legal experts to navigate it competently.

Right to Appeal

The legal entitlement of a party to challenge a lower court or tribunal’s decision in a higher or appellate court is known as the right to appeal. This right permits parties to contest the factual or legal conclusions reached by a lower court or tribunal and seek a different outcome.

Under Article 21 of the Constitution of India^[1], which guarantees the right to life and personal liberty, the right to appeal is recognized in India. It is a fundamental component of the Indian legal system and is intended to ensure equitable and impartial administration of justice.

The procedure for filing an appeal in India is dependent on the type of case and the court or tribunal involved. Generally, a written petition outlining the grounds for the appeal must be submitted within a specified timeframe after the lower court’s decision. The higher court then assesses the evidence and legal arguments presented by both parties before reaching a decision. The right to appeal is accessible at various levels of the Indian judiciary system, from district courts to the Supreme Court of India. Both civil and criminal cases can be appealed, and the appellate court may either uphold, modify, or reverse the lower court’s decision.

Scope of Right to Appeal in Statutory Law

The right to appeal is not an inherent right and is only granted through specific statutes. It is considered a substantive right, rather than merely procedural. This right is conferred upon the litigant from the beginning of the case, although it is exercised only when an unfavourable judgment is pronounced. Consequently, the law that applies to the right to appeal is the one that was in force at the time the lawsuit was filed, not the law that applies at the time of decision or when the appeal is filed. These vested rights can only be taken away by a subsequent statute if it explicitly provides for it.

It is important to note that as this right is created by statute, the statute can impose conditions for its exercise. The forum of appeal may also be altered by the statute, and the litigant does not have the right to choose the forum for appeal. As Justice Khanna once stated, the right of appeal is a product of statute, and there is no reason why the legislature cannot impose conditions for exercising this right as long as those conditions are not excessively restrictive to the point of rendering the right almost meaningless.

Historical Overview

The Indian legal system has evolved to recognize two fundamental rights, namely the right to sue and the right to appeal. These rights have been shaped by diverse legal traditions and cultures, and their historical development in India is a topic of great significance.

The right to access justice, commonly referred to as the right to sue, has been an integral facet of the Indian legal system since ancient times. In ancient India, justice was founded upon the principle of dharma, which denotes righteousness, and it was the responsibility of the king to ensure that justice was dispensed impartially. During this period, individuals were granted the right to approach the king or local courts to seek redressal.

Subsequently, during British rule in India, a formal legal system was introduced, and the English legal system became prevalent. This system placed great emphasis on the right to sue and the right to a fair trial. Consequently, the Indian Civil Procedure Code (CPC) was enacted in 1908, which laid down the procedural framework for filing a civil suit in India. The code ensured that every individual was entitled to the right to sue, and could approach a court of law to seek justice.

The notion of the right to appeal gradually developed during the period of British governance in India. Under their rule, the appellate system was introduced, permitting litigants to challenge a lower court’s decision by appealing to a higher court. In 1898, the Criminal Procedure Code (CrPC) was passed, recognizing the right to appeal in criminal cases. This legislation allowed accused individuals to appeal their conviction or sentencing from a lower court to a higher court.

Following India’s independence in 1947, significant changes were made to the country’s legal system. In 1950, the Constitution of India was enacted, enshrining the right to access justice as a fundamental right. Furthermore, the Constitution established the Supreme Court as the highest court in the nation, providing the right to appeal to it. Additionally, the Constitution conferred the authority on high courts to hear appeals from subordinate courts.

Throughout the years, the Indian legal system has been subject to diverse influences from various legal traditions and cultures. The ancient Hindu legal system, which was predominant in India, prioritized the fundamental right to access justice and provided for the amicable resolution of conflicts through mediation and arbitration. Meanwhile, the Islamic legal system, which emerged during the Mughal era, accentuated the significance of a just and fair trial process and guaranteed the right to appeal. These legal traditions have left a profound impact on the Indian legal system and continue to shape its development to this day.

Legal Frameworks

1. Right to Suit

In India, individuals have the right to initiate legal action against another person or entity in a court of law, which is commonly known as the right to sue. This right is enshrined in the Indian Constitution, which ensures that every citizen has access to justice as per Article 39A^[2]. The Indian legal system provides for various types of civil suits, including breach of contract, recovery of money, specific performance, and injunctions, among others. The Code of Civil Procedure, 1908^[3] governs the process of initiating a civil suit.

• Initiating a Suit: Parties, Framing, and Institution

The process of initiating a civil case involves two parties, the plaintiff and the defendant, as per Order 1 which deals with Parties to suit. The plaintiff is responsible for bringing the case against the defendant, who is the other party that must provide a defence against the allegations made by the plaintiff in civil court.

Once the parties to the suit are recognized, the next step is to frame the suit as provided under Order 2. This involves the plaintiff approaching the civil court with their suit, which is referred to as the Frame of Suit. Framing of suit indicates that a legal action has been brought by one party against another. According to Rule 2 of Order 2, the plaintiff must include their entire claim in the suit, which serves as the cause of action against the defendant. The framed suit needs to be instituted before the civil court, but the question of who the institution is answered by Order 3 of the Code.

• Agents and Pleaders

Order 3 of the Code of 1908 deals with recognized agents and leaders, who are essential for the plaintiff to institute a suit framed before the civil court. The plaintiff requires the help of a legal professional or pleader who has expertise in the field of law to take the framed suit before the court on their behalf. Rule 2 and Rule 4 of Order 3 respectively provide guidelines for recognizing agents and pleaders. Once a recognized agent or pleader is hired, it becomes their responsibility to institute the suit before the civil court on behalf of the plaintiff. This brings us to Order 4 of the Code, which discusses the proper institution of suits. To institute a suit, the plaintiff needs to present a plaint before the court, the meaning of which is explained under Order 7 of the Code of Civil Procedure, 1908.

It is crucial to note that compliance with sub-rules (1) and (2) of Rule 1 of Order 4 is mandatory for the proper institution of the suit. Sub-rule (1) requires the presentation of a plaint to institute a suit before the court of law. Sub-rule (2) provides that no plaint as provided in the previous rule can escape the rules provided under Orders 6 and 7 of the Code.

2. Right to appeal

As per Section 96 of the CPC, an aggrieved party to any decree passed by a court while exercising its original jurisdiction has the right to appeal to a higher authority designated for this purpose, except in cases where any statute makes an exception. This grants the aggrieved party at least one right of appeal.

However, Sections 97, 98, and 102 of the CPC specify certain conditions under which no further appeal is allowed, therefore limiting the right of appeal to a single opportunity.

It is important to note that no person has the right to appeal against a decision unless they are a party to the suit, unless they have been granted special leave of the court. The question of whether a person is adversely affected by the decision or suit is a factual matter that needs to be determined on a case-by-case basis.

The case of Garikapati Veeraya v. Subbiah Chaudhary^[4] established that the right to appeal to the Federal Court that existed prior to the establishment of the Supreme Court still remained valid. The court recognized the shift in the judicial system from the Federal Court to the Supreme Court but emphasized the preservation of the right to appeal that was created under the old law. It should be noted, however, that the continuation of this right is subject to the provisions of the Constitution.

• Appeals and Conversions under CPC

The Code of Civil Procedure, 1908 provides for various types of appeals and their maintainability. Under Section 96 of the CPC^[5], a regular first appeal may or may not be maintainable against certain adjudications, as indicated by a combined reading of Sections 2(2), 2(9), and 96 of the CPC. A first appeal lies from a decree passed by any court exercising original jurisdiction to the authorized appellate courts, except where expressly prohibited.

Furthermore, Section 100 of the CPC^[6] provides for a second appeal under this code. A decree passed in the first appeal by a subordinate court can be appealed to the High Court unless there are provisions indicating otherwise. However, the scope of exercise of jurisdiction under this section is limited to a substantial question of law framed at the time of admission of appeal or otherwise.

Regarding the conversion of an appeal into a revision, the court’s inherent powers allow it to pass orders that may be required to meet the ends of justice, as held in the case of Bahori v. Vidya Ram^[7]. In the absence of a specific provision in the CPC for converting an appeal to a revision or vice versa, Section 151^[8] governs the court’s exercise of power. The conversion is allowed, as long as the proper procedure was followed during the filing of the original appeal or revision. However, the only precondition to such conversion is that due procedure is adhered to during the filing of the original appeal/revision.

• Who has the right to appeal under Section 96 of the CPC?

Section 96 of the CPC provides that a regular first appeal can be preferred by any party to the suit who has been adversely affected by the decree. This includes the legal representatives of the deceased party under Section 146. Additionally, a transferee of the interest of such a party, whose name is entered on the record of the suit, may also appeal. In the event of an order in execution setting aside the sale on the basis of fraud, the purchaser at auction has the right to file an appeal.

However, no person other than a party to the suit is entitled to appeal under Section 96 unless special leave is granted by the appellate Court. This means that a person who is not a party to the suit can only prefer an appeal from a decree or order if they are bound, aggrieved or prejudicially affected by it and if special leave of the appellate Court is granted.

• Who is barred from appealing?

A party who has waived their right to appeal a judgment is precluded from filing an appeal at a later stage. The principles of estoppel may also apply where a party has accepted the provisions of a judgment and has acknowledged it as final and binding. The doctrine of estoppel prevents such a party from appealing the same judgment in a higher forum. Scrutton L.J. has expressed the view that a party cannot simultaneously accept the benefits of a judgment and then appeal against it as being unfavourable.

• Role and Standards of Review in Indian Appellate Courts

Appellate courts in the Indian legal system are higher courts that review and revise the decisions of lower courts, including district courts and tribunals. These courts include the High Courts, the highest courts in each state or union territory, and the Supreme Court of India, the highest court in the country.

Appellate courts use two standards of review when examining lower court decisions: one for questions of fact and one for questions of law. The standard of review on questions of fact is deferential to the lower court’s decision and will only be overturned if the findings of fact are clearly erroneous or not supported by evidence. The standard of review on questions of law, on the other hand, is less deferential and will closely examine the legal reasoning and interpretation used by the lower court, often applying its own interpretation of the law.

In criminal cases, the standard of review is higher due to the higher stakes and severe consequences of an erroneous decision. The decisions of appellate courts have significant implications for the parties involved and for the development of the law in India. Overall, the role of appellate courts in the Indian legal system is to ensure the fair administration of justice by reviewing and correcting lower court decisions.

Conclusion

To conclude, the right to sue and appeal in India represent fundamental pillars of the legal system, enabling access to justice for all citizens. These rights are duly recognized by the Indian Constitution, and the procedures for initiating legal action are regulated by the relevant statutes and rules. The Supreme Court of India has provided crucial interpretations of these rights, ensuring that they align with the principles of natural justice and the fundamental right to access justice. By having these rights in place, individuals in India can seek legal remedies in cases of disputes or breaches of the law, contributing to the promotion of a just and equitable society.

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Endnotes:

1. Article 21 of the Indian Constitution
2. Article 39A of the Indian Constitution
3. Code of Criminal Procedure (India), Act No. 2, 1974
4. Garikapati Veeraya v. Subbiah Chaudhary, (1979) 1 SCC 16.
5. Civil Procedure Code § 96 (India).
6. Code of Civil Procedure, Act No. 5, 1908, §100, India Code (2019)
7. Bahori v. Vidya Ram, (1978) 1 SCC 1.
8. Civil Procedure Code, § 151 (India).
9. Civil Procedure Code, § 146 (India).

This article was authored by Sohini Chakraborty, a first-year law student at RGNUL Patiala.

S.no	Contents
1.	Introduction
2.	Safeguard Of Liberty
3.	Essential elements in Safeguards of Liberty
4.	Safeguards the protected liberty of Indian citizens
5.	Right in Safeguard of Liberty
6.	Landmark Judgment
7.	Conclusion

“Without freedom of thought, there can be no such thing as wisdom – and no such thing as public liberty without freedom of speech”

By Benjamin Franklin

Introduction

Safeguards of Liberty in India was to protect people who are suffering and aged 16 or above 16 and also who needed it. Liberty Protection Safeguards(LPS) care for those people and treated their mental capacity with the proper agreement. In India basic right of the human being is liberty, the right to live life without fall of dignity. 

Every Individual who could have a Liberty Protection Safeguards authorization incorporate those with dementia, mental imbalance, and learning handicaps who come up short on the pertinent limit.

The Liberty Protection Safeguards were presented in the Mental capacity (amendment) Act 2019 and will supplant the Hardship of Liberty Safeguards (DoLS) framework. The Liberty Protection Safeguards will convey further developed results for individuals who are or who should be denied their liberty. The Liberty Protection Safeguards have been intended to put the privileges and wishes of those individuals at the focal point of all dynamics on the hardship of liberty.

The liberty protection safeguards are wanted to come into force in April 2022.[1]

Safeguard Of Liberty

Liberty is the most valuable thing for an individual and viable advances are required for its safeguards. From days of yore, there is a tussle between the state’s power and individuals’ liberties. An individual appreciates more freedoms assuming that the power of the state is abridged. Liberty can’t exist in a domineering state. Prof. Laski calls attention to specific strides for protecting freedom. “Opportunity, right off the bat, won’t be accomplished for the mass of men clear under unique certifications” and it can’t “exist in that frame of mind of honor”. Besides, “extraordinary honor is incongruent with opportunity”. Thirdly, “liberty can’t be acknowledged in that frame of mind in which the privileges of some rely on the joys of others”. Fourthly, “What is the state’s fundamental duty for safeguards liberty”.

Essential elements in Safeguards of Liberty

• The democratic form of Government

Democracy system is a type of govern­ment where everyone has an offer in the organization. Just democrat; states can give an amiable environment to the turn of events: human character. It is helpful for the full pleasure in liberty.

The Foundation of a majority rule framework is a fundamental shield of freedom. Both liberty and a democratic rules system are valuable to each other. We can’t imagine a majority rules government without the presence of common, financial, political, and individual freedom. Moreover, without even a trace of the right to opportunity, there can be no genuine majority rules government. Liberty is more secure and safer in the Majority rules system than in some other type of government. Popularity-based government is the public authority of individuals though in different types of government (like Outright Government and Fascism) all powers are focused and brought together under the control of one individual or a gathering of people. The individual in power or a gathering of people in power can’t endure his or their analysis. The nature of A majority rules system inverse gatherings is given due regard in Majority rules government. The contrary gatherings structure the public authority after the disappointment of the decision party. Analysis of the public authority is invited in Majority rule government.

• Fundamental Rights

There should be a reasonable and unambiguous rundown of essential fundamental rights in the Constitution. Individuals should be con­versant with their freedoms and the public authority should know about the limita­tion of abilities. These freedoms are justiciable and any demonstration that contradicts the arrangements of the Constitution can be announced ultra vires.

One of the vital strategies for safeguarding liberty is to consolidate a sanction of central privileges and opportunities in the constitution of the State. Alongside it, legal insurance ought to be given privileges. They safeguard our freedom to an exceptionally extraordinary degree. These basic freedoms likewise restrict the power of the state. In the presence of crucial freedoms, the state can’t meddle in that frame of mind of individual life. Without a trace of key freedoms freedom of the individual is never out of risk and without freedom improvement of human character is preposterous.

• Separation of Power

The powers of the public authority ought to be isolated among the chief, law-making body, and legal executive. This will help in forestalling any organ of the public authority. To turn out to be outright. Each organ of the public authority. Will work in its system. As indicated by popular French Researcher Montesquieu, detachment of abilities is a fundamental condition for pleasure in the freedom and the nations where there is the partition of abilities, individuals appreciate more freedom. This interaction is finished through the utilization of balanced governance. Lord  Acton believes that “Power taints an; outright power undermines totally.” Power has an internal pattern for abuse and power ought to go about as a check to drive.

• Responsible Government

An administration framed by the representa­tives of individuals will undoubtedly be capable. Any error concerning the public authority will sound its mark of the end and the resistance will exploit it. A bi-party framework with solid resistance will guarantee essential safeguards for liberty.

• Love for Liberty

For the security of freedom, individuals ought to have limitless love for freedom. On the off chance that it is thus, individuals might never want to lose their freedom and will be ready to make each penance for its insurance. During the opportunity battle, lakhs of Indians made penances of their lives as they went to gallows and prisons for the fulfilment of opportunity for their homeland.

• Rule of law

The idea of Law and order implies all people are equivalent under the watchful eye of law and regulation. This law and Regulation see no difference between the rich and poor, the high and low.

The rule of law is laid out in Britain, the U.S.A. also, and India. The idea of Law and order implies that all individuals are equivalent under the steady gaze of regulation. Regulation makes no separation between rich and poor, the high the low. All individuals ought to be under similar regulations and limited by similar sorts of commitments. Nobody ought to be above regulation. No honours will be given to an individual having a place with a specific class nor will there be any arrangement for insusceptibility. No individual will be rebuffed or saved in care for quite a while until and except if his wrongdoing is demonstrated.

• Constitution

Just the constitution limits the power of the state. It sets out specific obstructions and these hindrances are not to be crossed by the state while utilizing its power. For the most part, the constitution is acknowledged as the incomparable law of the nation, and if any organ of the public authority disregards any arrangement of the const., that act is pronounced unlawful by the courts. In brief, every organ of the public authority. Will undoubtedly work inside the structure of the constitution and this way the constitution safeguards the liberties of individuals.

• Independent Judiciary

There should be a free and fair judiciary for the assurance and conservation and individual liberty. The judiciary should be free of chief and authoritative control.

The autonomous, strong, and fair-minded legal executive is the greatest defender of freedom. Thus, arrangements ought to be made to keep the legal executive free. Assuming that the Legal executive is subordinate to the Leader or on the other hand on the off chance that it isn’t liberated from the impact of the Chief, it can not grant equity nor can it safeguard the major freedoms of man. In socialist nations or in nations that have Fascism, basic privileges are given to individuals, yet the Legal executive isn’t liberated from the impact of the Chief. In such nations, the safeguards and security of central privileges, constitution, and freedom aren’t exactly imaginable and freedom becomes simply a joke. Here, just keen and fair-minded people ought to be delegated as judges. They ought to be paid significant compensation and adequate annuity after retirement. Their residency ought to be long.

Safeguards the protected liberty of Indian citizens

• Right to life and individual freedom

 Article 21[2] gives that no individual will be denied his life or individual freedom besides as per technique laid out by regulation.

• Habeas Corpus

Habeas Corpus is a writ that is accustomed to bringing an individual who has been kept or detained under the watchful eye of a court. This writ is utilized to safeguard the liberty of a person.

• Legal Review

 Legal Survey is the force of the legal executive to survey the activities of the leader and authoritative parts of government. This power is utilized to guarantee that the public authority doesn’t abuse the central privileges of residents.

• Partition of power

Division of Abilities is a successful protection for individual freedom. The blend of a chief, administrative or legal powers in a similar individual or set of people could bring about the maltreatment of abilities and loss of individual freedom.

• Right to constitutional remedies

The Constitution accommodates different cures, for example, writs, orders, and headings that can be utilized by residents to authorize their central freedoms.

• Freedom of speech and expression

The right to speak freely of discourse and articulation is a principal right ensured by the Constitution of India. It permits residents to offer their viewpoints unreservedly unafraid of oversight or discipline.

• Right to information

 The Right to Information Act, of 2005[3] accommodates admittance to data held by open specialists. This right permits residents to consider public specialists responsible and guarantees straightforwardness in administration.

Right in Safeguard of Liberty

Article 5[4] says that safeguards are for anyone who is being arrested or detained. It is for all the people who suffer and those who are detained those people are sent to judge. Detention can be challenged if it is lawful. Victims get compensation for unlawful detention.

Some Restriction

A.K. Gopalan v. State of Madras[5] it was contended that the ‘procedure established by law’ implied equivalent to ‘due process of law’. Both the terms are equivalent and similar security is being given in both nations with a distinction that ‘due process of law’ covers considerable and procedural regulation yet ‘methodology laid out by regulation’ covers just procedural law.

In Maneka Gandhi v. Union of India[6], Chandrachud J. said that the system must be simple, fair and sensible, not whimsical, abusive, or erratic and Krishna Iyer J. said that the ‘law’ signifies sensible regulation and no established piece.

Landmark Judgment

This idea originally came up on account of A. K. Gopalan v. State of Madras[7]. In this situation, the solicitor was confined under Preventive Detainment Act. He tested this in the court that it be violative of his right to opportunity of development, which is the quintessence of individual freedom under Article 21[8]. The Supreme Court gave the significance of individual freedom in an extremely tight sense. It said that individual freedom incorporates just the actual opportunity of the body like independence from capture or unjust repression. It likewise said that the term ‘law’ is the state-made regulation as it were. The High Court held that Article 19[9] has no association and relevance to Article 21.

On account of Satwant Singh Sahney v. Identification Officer[10], the option to travel abroad is remembered as ‘personal liberty’ and no individual can be denied his entitlement to go besides according to the technique laid out by regulation. Refusal to give the identification of the individual with practically no reasons allotted for it adds up to an unapproved hardship of individual freedom as given under Article 21.

There was another instance of the State of Maharashtra v. Prabhakar Pandurang[11]. In this situation, it was seen that the detainee does not stop being an individual not having key privileges. The right to compose a book and get it distributed by a detenu is his major right and its forswearing without the power of regulation disregarded Article 21.

Conclusion

Every one of the previously mentioned focuses addresses the manners by which we can defend a singular’s liberty. These are just conceivable when every single individual no matter what their situation in the general public no matter what their positions no matter what component can make discrimination attempts to guarantee that freedom as a guideline or element pervasive in the general public isn’t compromised. Freedom is an essential element that guarantees that the Majority rule government in space wins. On the off chance that it falls flat, that Democracy is no Democracy and acts as a joke to freedom all in all.

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Endnotes:

1. https://www.gov.uk/government/publications/liberty-protection-safeguards-factsheets/liberty-protection-safeguards-what-they-are
2. Constitution of India, Article 21
3. Right to Information Act, of 2005, https://rti.gov.in/rti-act.pdf
4. Constitution of India, Article 5
5. A.K. Gopalan v. State of Madras, AIR 1950 SC 27
6. Maneka Gandhi v. Union of India, AIR 1978 SC 597
7. ibid 5
8. ibid 2
9. Constitution of India, Article 19
10. Satwant Singh Sawhney vs D. Ramarathnam, Assistant Passport Officer, 1967 AIR 1836, 1967 SCR (2) 525
11. State of Maharashtra v. Prabhakar Pandurang, 1966 AIR 424, 1966 SCR (1) 702

This article is authored by Pranita Dhara, a student of Lloyd Law College.

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

Human trafficking is the type of modern-day slavery in which a person is sold or used forcefully for the point of labor or commercial sex act. This is all that happens to intend to earn money. Human trafficking is not just a heinous crime against society but is a sin for our society. It has no boundaries for anyone irrespective of sex, gender, caste, or race anyone can be a victim of human trafficking but the most vulnerable ones are women and children. Children being innocent and getting easily influenced by others became victims of sexual acts. Due to the overpopulation and lack of job opportunities, many women from poor families are forced to get indulged in this profession and in some cases, a close family member becomes the hoes and sells them for such work.

According to the survey of the United Nations Office for drugs and crime [UNODC], it was found that the victim of human trafficking were 51% women, 28% children, and 21% men. Majorly women were abused by sexual violence which is 51%, 28% for children, and 21% for men. There are 43% of victims who are domestically within the national borders have been trafficked, it is shocking to know that the traffickers are not only men but it also constitutes 37% of women and 63% of men.

Some articles in the constitution are related to human trafficking.

ARTICLE 23
Article 23 talks about the prohibition of human trafficking and forced labor. Forced labor means less than minimum wage is paid. Any trafficking in human beings and beggars is prohibited and punishable in accordance with the law. In this article, the state is not prevented from commanding compulsory services for public purposes. The state shall not discriminate based on sex, color, caste, race, or any other. This article not only protects the state but also private citizens.¹

ARTICLE 21
Article 21 is a fundamental right under part 3 of the Indian constitution, which talks about the right to life and personal liberties. It is one of the most essential articles in the Indian constitution. The supreme court of India mentioned it as the ‘heart of fundamental rights ‘. It states that no person shall be deprived of life and liberty except as per the procedure established by law. Everyone is entitled to live with full dignity by birth.²

ARTICLE 51 A [E]
Article 51 A [e] is a fundamental duty to promote Peace, Harmony, and a sense of unity amongst the people of India cut across linguistic, religious, and regional basis, to repudiate practices that can be insulting to women.³

LAWS RELATED TO HUMAN TRAFFICKING

INDIAN PENAL CODE, 1860

• SECTION 366A
  If any person induces any minor to go with him to any other place with the intention of seducing her or doing illicit activities he or she will be punishable with the imprisonment of 10 years or fine or both.⁴

• SECTION 366B
  Whoever imports a girl from any other country under the age twenty one with the intent to force or seduce her for intercourse with another person then, a person can be liable for imprisonment of 10 years and a fine can also be imposed.⁵

• SECTION 374
  This section deals with unlawfully forcing someone to labor against their will or desire. Such a person can be punished with imprisonment which can be extended to 1 year or fine or both.⁶

• SECTION 370
  Whomever imports, exports, removes, buys, sells, or disposes of any person as a slave, or accepts, receives, or detains any person as a slave against his will, will be punished by imprisonment of either kind for a duration up to seven years, as well as a fine.⁷

THE IMMORAL TRAFFIC [PREVENTION] ACT, 1956

This act was passed by the parliament of India in 1956 and the main objective or purpose of this act is to prevent commercial sex or immoral traffic among women and girls. This act covers the entire country. This act defines a brothel as a “house or any portion of the house, room or any portion of any room, conveyance or portion of any conveyance, and place or portion of any place.” And prostitution is “the sexual exploitation or abuse of persons for commercial purposes or consideration in money or any other kind.” In this act, if any person runs a brothel or aid in such activities then he or she will be punishable with imprisonment for one year which can be extended to 3 years, and a fine of rupees 2000 can also be imposed. If any tenant knowing allows them to use the property for such use then he or she can be imprisoned for two years and a fine of rupees 2000 can also be imposed on them.

THE ANTI TRAFFICKING BILL, 2021

This bill focuses on the prevention of human trafficking, providing rehabilitation cure compensation to the victims, and providing stringent punishments for the traffickers. The early bill of 2018 was never introduced in the Lok Sabha. The 2021 bill is different from the previous bill as it also extends outside India. In this bill, the national investigation agency will also be set up. This will also include transgenders along with women and children in the definition of a victim. The central government will also set up a national anti-trafficking committee and many committees will be set up at state and district levels for the better implementation of rules and regulations.

CASE LAWS

PEOPLE’S UNION FOR DEMOCRATIC RIGHTS VS UNION OF INDIA
In this case, the people’s union of democratic rights filed a writ petition before the supreme court of India under Article 32 of the Indian constitution for the violation of fundamental rights and certain rights for laborers.⁸ People union of democratic rights is an organization set up to make a report on the exploitation of living conditions of laborers under contractors. In this case, the court defined forced labor under article 23, forced labor basically means employing labor and providing them wages which is less than the minimum wage rate. In this case, the court held that forced labor is a violation of the fundamental right of article 23 and the person can file a writ petition under Article 32 for the violation of their fundamental rights.⁹

LAXMI KANT PANDEY VS UNION OF INDIA
In this case, a writ petition was filed by Laxmi Kant Pandey regarding the malpractices in adopting children from foreign parents. This case brings to highlight the need for having rules and regulations regarding intercountry adoptions. The children go to another country and get neglected by their adopted parents, making a toxic and unhealthy environment for the children and resulting in sexual exploitation. To proving protection to the intercountry adopted children a comprehensive framework was formed. In this it was decided that the international adoptions would follow the regulations of the guardians and wards act, 1860 and the provisions of articles 15[3], 24, and 39 along with the united nations declaration on the rights of the child. It was made mandatory for foreigners to be sponsored by the licensed agencies of their country.¹⁰

GAURAV JAIN VS UNION OF INDIA
In this case, the public interest litigation was filed before the supreme court by the advocate to set up a distinct education system for the children of prostitutes and get them educated so that they didn’t have to live undesirable and the life full of misery. The court held that having separate schools for the children of prostitutes will isolate them and will be against the well-being of the children and society in general. The supreme court set up a committee consisting of advocates and social workers to look into the matter and find solutions. The court held that the prostitutes are not offenders but they are the victim of unfavorable socio-economic conditions and to set up juvenile homes for the rehabilitation and the safety of children.¹¹

CONCLUSION

There are many provisions related to human trafficking which are both domestically and globally recognized but still, there are numerous cases of human trafficking in our country. Human trafficking violated fundamental rights and constitutional rights and human rights of the people just for the sake of earning monetary benefits. Women and children are the victims of human trafficking people take advantage of the innocent behavior of the children and get them involved in sexual exploitation. In a country where there are fewer jobs for more people applying they are left unemployed and for the need for money women are forced to take up prostitution. Making laws and provisions is not enough this is an issue of great concern and it is needed to be seen from a socio-economic perspective also. The government should provide them with jobs so that they can live with dignity and comfort. Awareness related to human trafficking should be spread in schools among students. High-quality education should be promoted in government schools and colleges. This is a grave crime and needed to be lookup at in creating a safe and healthy environment for children and women to live in.

References:

1. The Indian constitution, 1950, art.23
2. The Indian constitution,1950, Art 21
3. Indian constitution, 1950,Art 51A[E]
4. Indian Penal Code, 1860, section 366 A
5. Indian penal code, 1860, Section 366B
6. Indian penal code, 1860 section 374
7. Indian penal code, 1860 section 370
8. Indian constitution,1950,Art.32
9. People union of democratic rights vs union of India, [1982 AIR 1473]
10. Laxmi Kant Pandey vs Union of India, [[1984 AIR 469]
11. Gaurav Jain vs Union of India, [{1997} 8 SCC 114]

This article is written by Prerna Pahwa, a student of Vivekananda Institute of Professional Studies, New Delhi.

Abstract

Every person’s life revolves around the concept of justice. Courts have been established in every country for the purpose of regulating justice. The courts are held in high regard as the guardians of the rule of law. This element of the courts contributes to the development of a trusting connection between the general public and the courts. When this relationship is harmed by unlawful influence in the courts, a miscarriage of justice occurs. A miscarriage of justice is the responsibility of the courts. The Supreme Court of India, the country’s highest court of appeal, declared that the rule of law is in place. As the ultimate bidder to justice, it is the apex court that gets to decide what is right and what is wrong. When the top court commits a miscarriage of justice, the entire country is thrown into chaos, and the public loses faith in the country’s judiciary.

The comment of Justice A.S. Anand, former Chief Justice of India and Chairman of the National Human Rights Commission, that the acquittal decision in the Best Bakery trial by a fast-track court was a “miscarriage of justice,” is not limited to that case, but can be applied to the entire mechanism of so-called fast-track courts as envisaged by the previous NDA government and now scrapped by the current UPA administration. The state did very little to return justice to its proper ‘quick’ track, and it is impossible for the average person to appreciate the question of when he will receive final justice in criminal or civil litigation.

Introduction

The decision to close the fast-track courts by the end of April, a year earlier than the five-year deadline, by starving them of funds because the Twelfth Finance Commission did not recommend any allocations, will put an end to the experiment without finding a viable replacement or doing anything to resolve pending cases.

The subject of the nation’s justice system’s very existence arises. Delivering justice is a challenging task since it must not only be done, but it must also appear to be done. This means that the court’s role does not end once the judgment is rendered, which offers justice to the parties in the case, but also after the court ensures that the judgment is applied. In recent days, there have been several cases of miscarriage of justice that have impacted not only the people engaged in the case but also the general public. Many people are confused about who is to blame for a miscarriage of justice: the courts or the judges who give the verdict. In either case, the integrity of the court system as a whole is jeopardized.

As a result, the court system has developed a number of strategies in order to limit the rising number of miscarriages in the delivery of justice and to carry out its mission efficiently and without hindrances. They can be successful at times and also fail at other times. As a result, the judiciary must keep a close eye on itself in order to avoid miscarriages of justice.

Miscarriage of Justice Explained

Justice can be defined as justness or righteousness, whereas miscarriage denotes failure. As a result, a miscarriage of justice denotes a failure to declare what is right and just. A miscarriage of justice happens when an innocent person is found guilty, allowing the true perpetrator to flee the scene. The criminal justice system is meant to be set up in such a way that it punishes those who are found guilty as well as acquits those who are found not guilty. If any of these ingredients are missing, a miscarriage of justice will very certainly result. True, the criminal justice system cannot ensure the punishment of the wicked or the acquittal of the innocent, but it may certainly attempt. Even after being exonerated of the erroneous prosecution, it is difficult for an innocent individual to lead a normal life after being tried as a criminal. As a result, it is the responsibility of the state to guarantee that the person has a normal existence.

Under Article 14(6) of the International Covenant on Civil and Political Rights, read with General Comment 32 of the United Nations Human Rights Committee, the United States, the United Kingdom, and Germany have already adopted the same remedial method in which the State regulates statutory responsibilities by providing compensation to victims of wrongful prosecution. The High Court of Delhi emphasized the rehabilitation of victims of unfair prosecution in the case of Babloo Chauhan v. State Govt. of NCT of Delhi¹, in order to assist them to lead a normal life following their acquittal. The court stressed the creation of a legal framework that would govern the formation of a committee to care for these innocent victims. Miscarriage of justice results in wrongful prosecution and humiliation of the innocent party. Miscarriage of justice can occur not only in the courts but also in the hands of investigating officials on the ground. Innocent people are also affected. Taking note of these factors, the Supreme Court issued a historic decision in 2016 in the case of Rudul Sah v. the State of Bihar², declaring that innocent people who have been subjected to shoddy investigation and unfair prosecution shall be compensated by the state in question. A miscarriage of justice can be caused by a hasty decision on the part of the court in certain cases to clear out pending judgments, plea bargaining, which involves providing an incentive to the judge hearing the case in order to declare the innocent as guilty, bias in the investigation procedure by the officials, evidence gathered by the police associated with the offense is frequently destroyed, and judicial misconduct on the part of the judge. As a result, a miscarriage of justice is an unwelcome activity carried out by the judiciary or investigating officials that, to a considerable extent, violates human rights.³

Alarming Rate of Pendency

The amount of unresolved cases is upsetting. As indicated by data accessible on July 5, 2000, there were 21,600 cases forthcoming under the steady gaze of the Supreme Court, contrasted with 1.05 lakhs 10 years earlier. In the High Courts, there are presently 34 lakhs of forthcoming cases, contrasted with 19 lakhs a decade prior. The Supreme Court has 645 cases progressing for over a decade, while the High Courts have 5,00,085. The inability to fill judge vacancies sooner rather than later is one of the reasons for the huge expansion in the number of forthcoming cases in High Courts. There are presently around 100 such vacancies. The quantity of cases anticipating preliminary in the country’s 12,378 locale and subordinate courts is assessed to be in large numbers. 1,500 of the 12,205 judge and justice positions in these courts are vacant.

Fundamental Rights of Speedy Trial

The fundamental right to a speedy trial has become a daily farce due to the delays, lack of accountability, and half-baked ideas. “A timely trial is essential to criminal justice, and there can be no doubt that the delay in trial by itself constitutes a denial of justice,” the Supreme Court stated.⁴ “There can be no question that rapid trial — and by speedy trial, we mean a properly expedited trial — is an integral and vital aspect of the fundamental right to life and liberty contained in Art 21,” it continued in another case. It is a vital responsibility.⁵ Even if Art. 21 is not enforced, the demand for quick justice is unavoidable under the Constitution. According to the preamble of the Constitution, the state is required to guarantee social, economic, and political justice to all of its citizens.⁶ The state should strive for a social order in which justice is represented in all aspects of national life, according to the Directive Principles of State Policy. “The State shall ensure that the operation of the legal system promotes justice; to ensure that no person is denied access to justice because of economic or other disadvantages,” it continues.⁷ The Supreme Court has held that “social justice would include ‘legal justice,’ which means that the system of administration of justice must provide a cheap, expeditious, and effective instrument for realizing justice by all sections of the people, regardless of their social or economic position or financial resources” in interpreting this provision.⁸

Need for a fair Judge-Population Ratio

The way public authority has would not take on a suggestion by the Law Commission of India to upgrade the judge-to-populace proportion. As indicated by the 120th Law Commission Report, “In the event that official portrayal can be determined in light of populace, as recently expressed, and other state administration, police, and different administrations can be arranged similarly, there is not a great explanation for why a similar standard can’t be applied to legal administrations. While the populace is a segment unit, it is additionally a vote-based unit, it should be recognized transparently. At the end of the day, we’re discussing residents who have popularity-based privileges, for example, the option to admittance to equity, which the state is committed to giving “. While proposing a fivefold expansion in legal strength at all levels of the Indian legal executive (from 10.5 to 50 judges for every million of the populace), the 120th Law Commission additionally noticed that India’s judge-populace proportion could not hope to compare to a few different nations. Rather than spending Rs 4750 crore to redesign the current legal executive by expanding the judge-populace proportion, the NDA government has proposed a 502-crore quick track court project for a five-year term, which is a specially appointed, silly endeavor to deal with a huge issue of confusing pendency.

The arrangement required the foundation of 1750 quick track courts, five in each locale, to speed up the goal of forthcoming lawbreaker cases. The idea is sound since it tackles the issue of undertrials grieving in jail for a really long time and turning into a monetary weight on the public authority. An amount of Rs. 502.90 crores was endorsed as an exceptional issue and upgradation award for the legal organization for a long time, till 2005, under the Fast Track Court Scheme. There are at present 1.8 lakh undertrials in bars, with the public authority paying around Rs. 361 crores each year on their upkeep at a pace of Rs. 55 for each individual, consistently in jail. As indicated by the sources, “just about two crore cases were anticipated to be settled by 2005,” bringing about tremendous reserve funds in prison uses while likewise settling a “genuine basic liberties worry.” “No less than five such courts work with full government help with each locale the nation over,” said Mr. Arun Jaitley, then, at that point Minister of Law (2000-2002, 2003-2004). The system, which would likewise deal with undertrial cases, was financially savvy since it would cost an expected Rs. 100 crores each year, contrasted with the Rs. 360 crores spent by states every year on undertrials upkeep. The Center set out just Rs 100 crore each year for this reason, with the assumption that all forthcoming detainee cases would be settled in something like a time of the most optimized plan of attack courts’ foundation. It is obscure whether the undertaking will be finished in something like four years. As per Union Law Minister H R Bhardwaj (2004-2009), the most optimized plan of attack courts could resolve 3.8 lakh of the 8 lakh cases allotted to them in four years. The middle would not give them Rs 100 for the undertaking’s fifth and last year, compelling them to close down the nation over.

Initial Setback

At the point when it was first presented, the allies were irritated, truth be told. The arrangement was tested by the Andhra Pradesh Bar Council as unlawful and incapable of giving quick equity. The AP High Court requested a stay on the activity of quick track courts after the appeal was acknowledged. The bar chamber’s reactions to the most optimized plan of attack courts are legalistic in the most terrible feeling of the world. For instance, it scrutinizes the Finance Commission’s affirmation that the expense of undertrials (assessed at Rs 20,000 for each individual each year) will diminish as quick track courts speed up the goal of their cases. The bar board asserted, rather grandiosely, that a court’s only intention is to administer equity, not to diminish prison spending.

It likewise goes against the directing officials being named on a two-year agreement from among resigned judges. The bar committee contended that the most optimized plan of attack courts’ authoritative judges will be less responsible than the customary courts’ long-lasting judges. The AP High Court deferred the plan’s execution since it seemed to have major legitimate and sacred flaws. The Union government pursued the High Court’s choice to the Supreme Court in a Special Leave Petition (SLP). As indicated by the SLP, the High Court made a lawful blunder by really giving the writ request through an ex-parte request in light of a simple at first sight assessment of the legitimacy of laying out quick track courts without articulating the grounds. The High Court’s structure was deferred on May 2 by a Supreme Court seat comprising Justice B.N. Kirpal and Justice Ruma Pal. Afterward, while hearing a case on the situation with undertrials in different States, one more Supreme Court Bench, drove by Chief Justice of India (CJI) Justice A.S. Anand, Justice R.C. Lahoti, and Justice Doraiswamy Raju, communicated lament that the plan of quick track courts, notwithstanding its significance, was not brought to the CJI’s consideration before the public authority made a declaration in such manner. The judges called attention to that the assets given to state legislatures to layout quick track courts ought to have been put in the possession of the Chief Justices of the High Courts for appropriate use.

“On the off chance that you fabricate structures first, pick judges,” the Bench noticed, “the most optimized plan of attack courts will turn out to be incredibly sluggish.” The Court inferred that the course of action would have worked better assuming the Chief Justices of the High Courts included picked the cases and areas that the most optimized plan of attack courts ought to attempt. The Bench additionally considered how previous District Judges could be enlisted as managing officials and who might be responsible for them. Its basic comments have caused frustration, as Law Ministry authorities keep up with that the plan’s draft was conveyed to all states and Chief Justices of every single High Court, and that it was just executed after intensive interviews with the legal executive at all levels. As per these sources, just the Chief Justices of the High Courts would allow judges to quick-track courts. In reply to a TV interview, H R Bharadwaj demonstrated that by March 2004, 1400 such courts were working, with 8 lakh cases going over to them, with 3.8 lakh cases getting a decision. Notwithstanding, he asserts that the strike rate is excessively low and that the explanation for this is that the most optimized plan of attack courts are dealt with by judges who come up short on energy for equity. “More youthful blood ought to be allowed an opportunity as opposed to resigning judges; they can acquire advancements and have a future,” Bharadwaj commented. He additionally expressed that he will start filling vacancies in different courts in the nation in the following three weeks.

Impact

The media claimed in 2002, while the courts were still getting up to speed, that the plan was beginning to have, “It had a positive influence on crime, since the number of heinous crimes had decreased, notably in Rajasthan and Maharashtra. Uttar Pradesh and Bihar had also suffered the effects.” The Parliamentary Standing Committee, which includes members from all political parties and is chaired by an opposition member, expressed pleasure in May 2003 and asked the government to do more.⁹

Lack of Accountability

Ad hoc Judges would be appointed for a two-year term from among retired sessions or additional sessions Judges, members of the Bar, and judicial employees who would be elevated on an ad hoc basis under the fast-track court program. The High Courts will be in charge of appointing judges. The Centre has urged state governments to use a particular drive to fill any vacancies that may arise as a result of ad hoc promotions. They did not anticipate the issue of presiding officers’ lack of accountability as a result of the provision of a short tenure in office after retirement.

There are serious concerns that litigants with clout at the district level could use the plan to their advantage to advocate for the fast disposition of causes they care about, which could lead to a miscarriage of justice. The model does not allow for the infusion of new and youthful judicial talent, which is plentiful. There were no fundamental changes in the legal system as a result of the fast-track courts program. There has been no new procedure code established. Retired judges, who have served in the past but have no plans for the future, are dispensing justice at a breakneck pace. It’s worth noting that these gentlemen never performed at even half their normal speed in their regular jobs. This is due to two factors. One, because they were vulnerable to disciplinary hearings during their ordinary jobs, the judges were cautious. A person who has already retired and is serving on a short end-of-career tenure is not subject to disciplinary action. This is compounded by the Indian legal system’s complete lack of judicial accountability. Two, some judges see this term assignment as their last chance to make some money while the sun is shining. As a result, there was a greater emphasis on speedy wheeling-dealing and the disposal of the greatest number of cases possible.

Is it permissible to follow the easy way of acquitting the accused because of a mechanical adherence to the idea that “hundreds of criminals may escape, but one single innocent must not be punished”? Though it is a commonly accepted principle that no innocent person should be punished, courts are obliged to be sensitive and cautious in order to ensure that no criminal escapes. In such circumstances, the criminal justice system’s sustainability is put to the test. Otherwise, criminal activity will continue uninterrupted.

Worst Example of Fast-Track Injustice: Best Bakery

At its Special Leave Petition (SLP) in the Supreme Court, the National Human Rights Commission challenged the judgment of the Fast Track Court of H.U. Mahida acquitting all 21 accused in the Best Bakery case, which involved the murder of 14 Muslims in communal riots in Vadodara on March 1, 2002. The NHRC claimed in its petition to the Supreme Court that even as one witness after another, including the main eyewitnesses, became hostile, Judge Mahida made no attempt to figure out why this was happening. The NHRC objected strongly, citing documents, that there was no adequate cross-examination of Zahira Sheik and Lal Mohammad, who contradicted their earlier written statements. “Instead of attempting to bolster the prosecution case, it appears that steps to the contrary were done,” according to the NHRC appeal. The NHRC also noted how the trial was reduced to a farce by excluding a full cross-examination of the investigating officer, who testified on June 21. The Additional Sessions Judge, Fast Track Court No. 1, Vadodara, completed the examination and recording of all 21 accused people’s statements under Section 313 of the Criminal Procedure Code (CrPC) on the same day and proceeded to hear arguments in part. The Fast Track Court, as its name suggests, handed down its decision on June 27.¹⁰

On February 20, the trial began. Was the trial court completely powerless in the face of a dearth of evidence? Apparently, the trial court believed it lacked the authority and jurisdiction to determine who was the genuine criminal if the accused were not guilty, or to compel restitution from the government to the victim. In his ruling, Judge Mahida stated, “The court of justice is not a court of justice in the true sense, rather it is a court of evidence.” “The prosecution was required to petition to the court to have the trial conducted in camera under Section 9 (6) of the CrPC when one witness after another was observed by the court to be resiling from the earlier statement made. Even if the prosecution did not do so, the court had the authority to request that the trial be held in private “The National Highway Traffic Safety Administration (NHTSA) drew attention to this. The trial court can postpone the trial under Section 309 of the CrPC for reasons that must be stated in writing in order to guarantee that a safe environment is provided for witnesses to depose without fear. It is also conceivable to recall and re-examine any person previously examined under Section 311, particularly if his or her testimony appears to be critical to the case’s just conclusion. The Fast Track Court did not use these powers and instead chose to acquit everyone. On August 8, the Supreme Court Bench appeared to concur with the NHRC’s petition in broad terms. It ordered the Centre and the Gujarat government to produce a report within two weeks detailing any plans to reform the criminal justice system.¹¹

Recent instances of miscarriage of justice

The case of Parsa Kente Collieries Ltd v. Rajasthan Rajya Vidyut Utpadan Nigam Limited, in which leave was eventually granted, was decided in haste and without much deliberation by the Supreme Court. According to the notification dated May 9th, 2018, the matter was meant to be heard by the summer vacation bench of the court, but it was instead taken up by a different bench. The case was put on hold since the court couldn’t reach a decision owing to a lack of evidence. In addition, the court took up the matter on May 21st on its own, hearing an argument from one of the parties involved. The judgment date was given the very following day.

The decision was made without informing the attorneys engaged in the case. The court’s action appeared to be ambiguous because the subject was not urgent enough to be dealt with before the deadline. As a result, this ruling was seen to be a miscarriage of justice because there was no necessity involved and the court made its decision in haste in order to clear out the pending cases. M/s Adani Power (Mundra) Ltd v. Gujarat Electricity Regulatory Commission and Ors was a case similar to this one in which the court acted similarly. In this case, too, the court’s decision was based on a new date chosen by itself rather than the previously specified dates. This clearly demonstrates that the court was biased in favor of one of the parties in the case. Both of these cases involved Adani Business Groups, and because the verdicts were in their favor, the business group profited by crores of rupees. Both rulings were rendered in an unreasonable and rushed way, which is contrary to the court’s regulations.

It’s possible that the court reached a decision as it saw fit, but the process by which the cases were handled, both of which were affiliated with a huge business company, was not fair. Another case in which the court committed a miscarriage of justice was Zulfikar Nasir & Ors v. State of Uttar Pradesh & Ors, often known as the Hashimpura massacre. The Hashimpura massacre occurred during the Rajiv Gandhi government’s reign of terror in India. The massacre resulted in the deaths of approximately 45 Muslim men who were being transported by a Provincial Armed Constabulary truck. Those men were wrongfully detained and held in detention for an indefinite period of time. As a result, the actions of the members of the Provincial Armed Constabulary were manifestly illegal. The killings occurred while the Muslim men were being held in jail. Because neither the men who were taken away nor their dead corpses were ever returned to their families, the High Court made it plain that the victims’ families had the right to know the reason and the truth as part of their access to justice. In a 2015 verdict, twenty years after the occurrence, the court acquitted all of the accused males on the basis of a lack of transparent evidence. The court’s decision has sparked a number of questions and debates about the country’s justice delivery system. After the matter had been neglected in the High Court of Uttar Pradesh for so long, such a move by the Supreme Court was a clear indication of a miscarriage of justice. The compensation which was decided by the Uttar Pradesh government to be provided to the families of the victims of the massacre was not put into effect as well. Many legal experts simply labeled this as genocide, and the court’s inaction on the topic was not welcome.

The court may have reached a rational judgment, but it should have also devised some means of obtaining justice for the victims’ families and should not have delayed the case for so long. Because jihadists are responsible for a large number of terrorist activities, many innocent Muslims have been exposed to abuse and harassment as a result of investigative officials declaring them guilty. The court had recognized the police officials’ miscarriage of justice in a case from 1996, in which the officials had arrested a few Muslim males and accused them of being responsible for an explosion at New Delhi’s Lajpat Nagar Market. These guys were cleared of the same charges in a 2012 ruling. If the court had not reviewed the police investigation, this case would have been considered a terrible miscarriage of justice. Following the 2011 attack, a new investigative team was developed in order to avoid future mismanagement and carelessness when conducting investigations. This episode, which occurred after the formation of the new time, exemplifies how officials’ carelessness and stupidity caused innocent individuals to suffer as a result of the improper prosecution of a case in which they were not even involved.

This case also highlights the Supreme Court’s role in the case, which is to keep a check on the activities of the police officers involved. Along with the courts, the government bears the duty of policing officials’ carelessness. The fact that the cases are being handled in his state must be made known to the state governments. Strict actions must be taken to ensure that authorities work diligently and with care. Taking a cue from Indian cases, the insights of a miscarriage of justice are nothing new in international situations. The United States of America has long struggled with racial issues, so the Florida bench’s decision in the case of Florida v. George Zimmerman, which involved the assassination of Trayvon Martin, an African-American teenager, by George Zimmerman, an American, was not a welcome one, as it exacerbated the society’s long-standing racial divide and was thus declared a miscarriage of justice. In this instance, the defendant was hurt as a result of the plaintiff’s murder and thus claimed self-defense. As a result, he was cleared of the murder allegations leveled against him. Several civil rights activists were opposed to the verdict, which was deemed to be discriminatory.

The court’s decision may not be incorrect, but the fact that a youngster was slain without cause should have been causing alarm. These examples show when a case has reached a court and has been heard by that court. There are a number of different situations that lead to a miscarriage of justice even before the case reaches the courts. The rape instances stand out among them. Several times, the victim of a rape case has been forced to withdraw their petition from the court due to pressure from society, the families involved, and political considerations. This implies a terrible miscarriage of justice by the courts due to the lack of support it is meant to provide to the victims and the inability to withdraw the claims that are pending. The oppression of African-Americans by whites has been a long-running social fight. The courts exist to promote equality and to eliminate any disparities that may arise. The Florida Supreme Court’s decision in the case of Florida v. George Zimmerman served to accentuate the social divides that previously existed. It is usually preferable for the courts to end a case with a conclusion based on grounds and clarity, as the absence of these factors leads to injustice.

Rape cases are a serious societal issue, and it is not difficult to press charges in such circumstances because there are statutes dedicated solely to rape. According to police officials, even after a successful investigation, the case is delayed due to a lack of judicial participation in such instances. Following that, the nation was made aware of the delays in the court’s decision-making ability through the case of Mukesh & Anr v. State for NCT of Delhi & Ors, also known as the Nirbhaya case. After nine years of litigation, the victim achieved justice when the rapists were sentenced to death by the court. However, not all rape cases have the same resources and support as Nirbhaya’s. This is a reflection of the court system’s flaws, which result in a miscarriage of justice. The events described above occurred within the last five to ten years. They were chosen because they reflect the direction in which the country and the world as a whole are heading. When the courts have gone to the aid of the victim to prevent injustice, they have also stayed silent or absent when justice has been denied.¹²

Why not the system is strengthened?

Poor litigants will continue to suffer unless systematic reforms are implemented to eliminate delays. Even within the current system, there is no reason why formal court processes should not be developed to expedite the hearing of urgent matters rather than leaving it to chance or using fast-track courts. Decisions on requests for early hearings are often made without regard for the consequences of any delay for poor litigants under the current system. Fast-track courts are unlikely to make a difference to the massive backlog of cases if there isn’t a rational and sensible system in place to support the rapid disposition of cases.

There is a need for studies that assess the quality of decisions rendered and the level of public confidence in the judicial system on a regular basis by the Law Commission, the National Human Rights Commission, law schools, and the nation as a whole. The fast-track court plan was a temporary fix that appears to have worked on the surface, as the backlog of cases has likely decreased and cases are being resolved more quickly. On the other side, it has caused major problems by resulting in a massive ‘miscarriage of justice’ in thousands of instances, eroding the judiciary’s credibility. On a legitimate mission, the entire legal system should be run on a fast track.

Ways to avoid a miscarriage of justice

No court wants to issue a decision that could result in a miscarriage of justice. It is not only the courts that are responsible for delivering an unjust verdict, but also the investigating officers who arrive before the case reaches the courts. Miscarriage of justice, if it occurs, should be prevented in order to ensure that the courts provide justice in a clear, affordable, and consistent manner. Below are some suggestions about how to go about doing so.

Special Courts

When courts are inundated with cases, they issue hasty decisions in an attempt to reduce the number of pending cases, which leads to miscarriage of justice. By their very nature, decisions made in haste are destined to be unjustified. To avoid this, special courts have been recommended and are being built up to handle a few cases and give justice quickly and without any loopholes. It has been suggested that special courts be established in each area to prevent unjust prosecutions from being carried out. The harmed person can file a claim alleging that he or she was wrongly prosecuted. The claimant bears the burden of proof for the unjust prosecution.

The special courts provide an efficient system for filing cases, payment options for clearing fees, a list of timetables for case disposition, the time limit for filing an application, and so on. For ordinary folks, this has made the court system easier, faster, and smoother. This is one technique to ensure that judges’ actions are monitored and that miscarriages are avoided. The special courts are required to send notice of the appeals hearing to the parties concerned in the case after receiving a claim.

The special court will provide an award for damages, whether monetary or non-monetary, to any party in the case after hearing the case and hearing both sides’ appeals. This simplifies the entire legal process for both the parties and the courts. The court must consider a few issues before awarding compensation to the victim, which is given below:

• A brief financial history
• Emotional harm to the aggrieved person
• Damages to the aggrieved party’s health, and so forth.

Human Rights

Human rights are fundamental rights that are granted to all citizens, regardless of their background. Human rights include the right to a fair trial, the right to freedom of speech and expression, and the right to liberty, all of which might be considered essential aspects in preventing a miscarriage of justice. The right to a fair trial is guaranteed under Article 6 of the Human Rights Convention, which states that everyone is presumed innocent until proven guilty. Article 5 of the Human Rights Convention guarantees liberty.

The phrase “liberty” refers to the fact that a person will be prosecuted according to the method laid out, and that the person imprisoned must be aware of the reasons for his detention. The guarantee of access to justice within a certain time frame is accompanied by liberty. The right to freedom of expression is addressed in Article 10 of the Human Rights Convention. This freedom allows an individual to connect with others who can help him get out of trials or provide a larger platform to demand justice, such as the media.

The special courts provide an efficient system for filing cases, payment options for clearing fees, a list of timetables for case disposition, the time limit for filing an application, and so on. For ordinary folks, this has made the court system easier, faster, and smoother. This is one technique to ensure that judges’ actions are monitored and that miscarriages are avoided. The special courts are required to send notice of the appeals hearing to the parties concerned in the case after receiving a claim.

Principles of Natural Justice

Natural justice principles have served as an important check on the possibility of a miscarriage of justice. In a similar way to human rights, the Indian Constitution includes natural justice principles in some of its sections to protect public rights. When there is a miscarriage of justice, it is the general public who suffers the most. Natural justice principles underpin all other statutes in place, hence they must be kept in mind for the Constitution to work effectively, as their violation amounts to the arbitrary exercise of power.¹³

Curative Petition

Curative petitions are those that serve as the last constitutional alternative for redressing grievances that have arisen in the court after the review plea has been exhausted. The Supreme Court adopted a curative petition for the first time in the matter of Rupa Ashok Hurra V. Ashok Hurra and Anr, in order to prevent a miscarriage of justice from occurring. In this case, the court stated that curative petitions can only be filed if the petitioner can show that the principles of natural justice have been violated.

In addition, the petition has the burden of establishing that the court was unaware of the presence of a curative petition at the time of the judgment. Although curative petitions are viewed with suspicion in unusual circumstances that are witnessed in open court proceedings, they are one of the tools for preventing miscarriages of justice and placing limits on the use of the courts’ power. In plain terms, a curative petition is a second review by the courts of its own judgments that have previously been issued. Article 137 of the Indian Constitution gives the Supreme Court the power to reconsider its decisions after they have been declared obligatory. The party that has been wronged has a legal right to make an appeal to the court for a second time to have its judgment reviewed, which must be done according to the court’s regulations.

Judicial review

Judicial review is a judicial power that allows the courts to check the constitutionality of the legislature’s and executive branches’ responsibilities. True, miscarriage of justice does not always arise as a result of court orders, but it can also emerge from the influence of the legislature and executive branches of government. Several cases have occurred that demonstrate how the executive’s influence and statutes enacted by legislatures might leave the judiciary unsure of what verdict to issue. To be on the safe side, courts frequently fail to pursue the road of justice, resulting in a miscarriage of justice. To avoid this, the courts can control the power of judicial review to keep a check on the other branches of government, and rather than being influenced individually, the three branches of government can work together to avoid a situation that could result in a miscarriage of justice.¹⁴

Conclusion

Miscarriage of justice is not a welcome development because it violates human rights. For the judiciary, a miscarriage of justice raises a lot of questions. The judiciary’s goal is to correct injustice. Because it leads to unfairness on the side of the parties concerned in the case, a miscarriage of justice negates the judiciary’s goal. The judiciary is well aware of the duties and responsibilities it bears to the nation’s residents. As a result, there is no need to instruct the courts. The judiciary, for its part, has already taken a number of steps to address the miscarriage of justice.

The judiciary should use more of these types of corrective procedures in order to successfully carry out the application of law and protect the innocent by administering justice. It is important to remember that the courts have served as a guiding light in countless cases, providing justice to both parties involved. Default does occur from time to time, but this is because of the confidence that courts have built with the public through time. The remedies and instruments established by the courts to provide safeguards will serve to maintain the judiciary’s independence and, as a result, allow it to function effectively.

References:

1. 247 (2018) DLT 31
2. 1983 AIR 1086
3. https://www.theguardian.com/commentisfree/2018/may/09/miscarriage-of-justice-victims-uk-supreme-court
4. Hussainara Khatoon V. State of Bihar AIR 1979 SC 1364
5. Maneka Gandhi V. Union of India, AIR 1978 SC 597
6. Constitution of India, 1949, art.38(1)
7. Constitution of India, 1949, art.39(A)
8. Babu V. Raghunathji AIR 1976 SC 1734
9. https://eachother.org.uk/5-shocking-miscarriages-justice-prisoners-need-human-rights/
10. https://www.news18.com/news/india/miscarriage-of-justice-delhi-hc-acquits-man-of-raping-daughter-10-months-after-his-death-1978487.html
11. Dr. Madabhushi Sridhar, Miscarriage of Fast Track Justice, Legal Service India http://www.legalservicesindia.com/articles/misoj.htm
12. Oishika Banerji, Recent instances of miscarriage of justice, iPleaders https://blog.ipleaders.in/recent-instances-miscarriage-justice/
13. Laskit, Concept of Natural Justice, Legal Service India https://www.legalserviceindia.com/legal/article-1549-concept-of-natural-justice.html
14. https://www.scconline.com/blog/post/2018/09/08/wrongful-prosecution-miscarriage-of-justice-legal-remedies-law-commission-of-india-report-no-277/

This article is written by Arryan Mohanty, a student of Symbiosis Law School.

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

With the advent of social media and networking it is difficult to maintain privacy with the data available online. Data on the internet is flowing like water in the river. If the information of someone is available on the internet which the person has relevant context now or the reason for which it was there on the internet has been served is affecting the other person emotionally or making it difficult for another person to live peacefully. Then, it is a violation of article 21¹. This can be removed through the right to be forgotten which is provided under the right to privacy.

Right to forgotten means the deletion of the user’s personal information from the search engine, website, and many more. The European Union acquired the General Data Protection Bill [GDPR]² in the year 2018. Article 17 of this bill provides certain rights to the erasure of personal information and the certain rights include which are no longer necessary, consent has been withdrawn for particular information, and where there is legal obligation to erase. There are also some reasonable restrictions to some extent like in the area of public interest related to public health, or the data required in achieving historical, statistical, or scientific research.³

The right to be forgotten is to be followed in other countries also. In 2014, in Spain, the European court of justice managed a case Google Inc V Agencia Espanola De Proteccion De Datos in which a Spanish man whose name was Mario Costeja Gonzalez asked google to remove his information related to the auction for his unbridled home and the debt he had subsequently paid. Google was sued under the National High court which suggested a series of questions to the European court of justice. The court ruled the judgment in the favour of the Spanish man and asked google to delete the information.

In 2016, the first case of the right to be forgotten was heard by the Chinese court in Beijing in which they held that the residents don’t have the right to be forgotten. In this case, Ren Jiayu asked the Chinese web search tool Baidu to remove the search list that is related to Wuxi Taoshi’s previous business. Ren argued that the right of name and right of notoriety is reserved under Chinese law. Then the court ruled the judgment against Ren and said that he doesn’t have a right to be forgotten.

RIGHT TO BE FORGOTTEN UNDER THE PERSONAL DATA PROTECTION BILL

The right to privacy is our fundamental right under article 21 of the Indian constitution decided in the case of Justice K.S Puttaswamy Vs the Union of India⁴ in 2017. Data is a very sensitive thing that needs to be protected. The personal data protection bill⁵ was introduced in the Lok Sabha in 2019 with the objective to protect or conserve the data from getting into the wrong hands. This bill also includes the right to be forgotten under clause 20 of chapter V. it means that any person can ask the data fiduciary to remove or limit the data of the concerned person. The role of data fiduciary is to decide the means and the purpose of controlling the personal data it can be anyone an individual, entity, state, or cooperation. The data will be monitored by the Data protection authority and any removal of data has to be approved by the Data protecting authorities’ adjudicating officer. The officer has to see many aspects like the public interest in the concerned data, the extent of availability susceptibility, or the scope of divulgence before approving the removal of the data.

RIGHT TO BE FORGOTTEN VS THE FREEDOM OF SPEECH AND EXPRESSION

“Right to be forgotten is the biggest threat to freedom of speech and expression in the coming decade”
-Jeffrey Rosen

The right to be forgotten is a much-needed statute nowadays to protect the individual interest against defamatory or derogatory statements. Freedom of speech and expression is our fundamental right under article 19⁶ of our Indian constitution and also contains reasonable restrictions under Article 19[2]⁷. Whereas the right to be forgotten can undermine the lusture of freedom of speech and expression. It can affect journalism it will be difficult for media to express their views freely and to wait for the decision of the adjudicating officer. If any person wishes to delete some information on the internet then it will favor the individual, not the society at large. This will also create a sense of feeling in the minds of the people that they are not free to express their views through articles, books, blogs, etc.

CASE LAWS

• Jorawar Singh Mundy Vs Union Of India and Ors⁸
  In this case, the petitioner was an American citizen who visited India in 2009. He got acquitted under the narcotics drugs and substance [NDPS] act, 1985. After two years trial court convicted him on April 30, 2011. On 29 January 2013 through the appeal of state, the Delhi high court then affirmed her acquittal. After returning to America petitioner realized that the Delhi high court’s judgment is available on the internet and this can be harmful to his reputation or while screening test done by the employer. He sent directions to Google India Private Ltd., Google LLC, Indian Kanoon, and vLex.in but the judgment was not deleted then he filled a writ petition before the Delhi High Court for the violation of Article 21. The Delhi high court directed the respondents to delete the judgment.
  
• Dharmaraj Bhanushankar Dave Vs State of Gujarat and ors⁹
  In this case, the petitioner filed a writ petitioner under Article 226 of the Indian constitution before the Gujarat High court for the violation of Article 21. The non-reportable judgment was published by the Indian kanoon on their site and the petitioner contended that google and Indian kanoon has no right to publish any non-reportable judgment. The court held that the judgment was part of the proceeding and that merely publishing judgment on online websites will not amount to be reported. So, it is not a violation of Article 21 and there is no legal rationale to remove the judgment.
  
• Subhranshu Rout Gugul Vs State of Odisha¹⁰
  In this rape case, the accused has created a fake id on Facebook and uploaded objectionable photos of the prosecutrix on the fake id. The police were failed to take any strict action against the accused. The pictures were taken with the consent of the prosecutrix at the time they were in a relationship but now they got separated. It was observed that consent does not mean to misuse the phots or outraging the modesty of the women. In this case, the right to be forgotten should be exercised. The court held that the photo should be removed to protect the privacy of the victim. Irrespective of ongoing criminal cases. The Odisha High Court further noted that the Indian Criminal Justice system is more of a sentence-oriented system, with little emphasis on compensating victims for their losses and suffering. Allowing such offensive photographs and videos to remain on a social networking platform without a woman’s agreement is an outrage to her modesty and, more crucially, her right to privacy.

CONCLUSION

Information in the public domain is like toothpaste. They can not completely be deleted if someone has taken a screenshot or screened the concerned content. the right to privacy is our fundamental right under article 21 of the Indian constitution which needs to be protected. The right to be forgotten is also included in the personal data protection bill, 2019 which is a great step towards the safety of data and the privacy of the individual. In case one person was acquitted under any criminal action but later on find to be innocent and the judgment is reported on many websites or search engines. It can be difficult for the employee to get a job as during the screening process this can destroy the reputation of the employee. The right to be forgotten can be a major relief and can ask for the removal of the judgment. Also in the case when a person with the intention of taking revenge or with the feeling of animosity posts or share any picture or video which is offensive or outrages the modesty of the victim through the right to be forgotten victim can make them deleted. It is been a debatable topic whether the right to be forgotten undermines the fundamental right the freedom of speech and expression under Article 19 which also contains reasonable restrictions under Article 19[2] of the Indian constitution. If a person asks to remove some content from the website or from the internet then it can also cause feelings among the people that they are not free to express their views and opinion through writing articles, blogs, etc and the removal of the concerned content can lead to being in the favor of the individual rather than the society at large. According to me, it requires judicial administration, and article 19[2] which provides reasonable restrictions should be amended and should include privacy in it.

References: