Tag: Article21

-Report by Ojas Bhatnagar

A bench of Chief Justice Munishwar Nath Bhandari and Justice N Mala held that identification of temples constructed must be under the Agamas rules, not by the Tamil Nadu Hindu Religious Institutions Employees (Conditions of Service) Rules, 2020. It has been held in the case of All India Adi Saiva Sivacharyargal Seva Sangam v. State of Tamil Nadu.

Facts

A plea was filed, seeking a direction against the state and the Hindu Religious and Charitable Endowments departments from appointing Archakas (Priests) and other traditional personnel at their discretion. There was a batch of PIL petitions from All India Adi Saiva Sivachariyagal Nala Sangam by the general secretary and 14 others. It wanted to restrain the authorities concerned from appointing Archakas as held by the Supreme Court in another case.

Petitioner’s Contention

The petitioners argued that Qualification under the rules of 2020 cannot apply for the post of Archakas to be appointed in Temples where construction and worship are done as per the Agamas. The counsel for the petitioner made various arguments referring to the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. Reference to the case of Seshammal and others and Adi Saiva Sivachariyargal Nala Sangam and others, supra was made, by citing certain paragraphs to seek the protection of the practice of Agamas for appointment of Archaka/Poojari. Therefore, the
prayer was to strike down the provisions under challenge as well as the advertisement issued by the Executive Officer called for applications for appointment to the post of Archaka/Poojari. The rights of appointment lies with the temple trustees and the government is trying to take over these rights.

The Petitioners also argue that they want to constitute a committee headed by a Retired High Court Judge to identify the temples where construction and worship are done by the agamas, to prove that the Supreme Court had allowed in its judgment, the appointment of an Archakas as per the Agamas. There are various agamas, and the identification of temples about agamas is a pre-requisite for the appointment of Archakas because different agamas follow different worshipping procedures. Therefore, the individual appointments of Archakas should be allowed.

Respondent’s Contention

In the State of Tamil Nadu, there are more than 35000 temples under the Hindu Religious and Charitable Endowments
Department [HR & CE Department]. Identification of those temples constructed as per the Agamas and further bifurcation will solve the issues often brought before this court to challenge the appointment of Archaka/Poojari. But this task is very vast and unreasonable.

Court’s Decision

The court dealt with the constitutional validity of a lot of provisions of the Tamil Nadu Hindu Religious Institutions Employees (Conditions of Service) Rules, 2020. Article 26 of the Indian Constitution states that every religious entity has the right to establish and maintain institutions for religious and charitable purposes and manage and govern its own affairs by how the religion denotes it. The challenge to certain provisions is not justified. However, we apply the doctrine of reading down to protect the petitioners’ rights guaranteed under Articles 16(5), 25 and 26 of the Constitution.

“The appointment of Archakas in the temples constructed as per Agamas would be governed by the Agamas and for that the Rules under challenge would not apply. It would otherwise offend Articles 25 and 26 of the Constitution of India”

The Government framed the rules to identify the eligibility and qualifications of officers and employed their officers to the temple. This act by the Government is wrong.

“It is, however, necessary to apply the doctrine of reading down of those provisions with regard to the appointment of Archakas in the temple or group of temples, which were constructed as per Agamas,”

The appointment of Archakas in the temple or group of temples constructed under the respective Agama shall, accordingly should be governed by the Agamas and not by Rules 7 and 9 of the Rules of 2020. Hence, all the writ petitions are disposed of.

-Report by Shagun Sharma

The Delhi High Court had observed in the case of SULEMAN v. THE STATE (NCT OF DELHI) that the object of default bail is inherently linked to Article 21 of the Constitution of India, laying emphasis on safeguarding the life and personal liberty of the accused against arbitrary detention. A revision Petition had been filed, to set aside the order passed by the Learned Trial Court, Delhi, wherein Default Bail of the Petitioner, under Section 167(2) Cr.P.C. was dismissed. The Coram consisted of the HON’BLE MS. JUSTICE SWARANA KANTA SHARMA.

FACTS

The Petitioner was in custody in the FIR registered under sec. 21 and 29 of the NDPS Act. On completion of the investigation, a charge sheet was filed on March 3, 2021, without the Forensic Science Laboratory (FSL) report. The charge sheet mentioned that the supplementary charge sheet would be filed on the receipt of the report from the forensic laboratory. The Petitioner was then arrested on March 4 last year, wherein he was found in possession of 300 gms of heroin and 06 gms of the heroin were recovered from the co-accused.

The Petitioner filed an application for bail in default under Section 167(2) of the Cr.P.C. before the learned Trial Court,
claiming that the complete charge sheet was not filed within the stipulated time frame under Section 36A (4) of the NDPS Act. The learned Trial Court observed that the accused would not be entitled to Default Bail as the charge sheet has been filed even though the FSL Report is not filed. In furtherance, it was observed by the learned Trial Court that the quantity recovered from the Petition would fall under the bar of commercial quantity. Thus, the onus would be upon the Petitioner to satisfy the learned Trial Court.

It was stated by the learned Counsel for the petitioner that the charge sheet is incomplete without FSL Report since the IO does not know whether the substance recovered is actually a banned substance under Sections 21 and 29 of the NDPS Act.

Ld. Counsel for the APP stated that the question of whether the charge sheet is incomplete without an FSL Report or
not, is yet to be decided by the Hon’ble Supreme Court and therefore the reliance should be placed on the law presently laid down by the Division Bench of this Court in Kishan Lal vs State 1989.

COURT’S DECISION

The High Court was of the view that the default bail under sec. 167 of CrPC can only be availed before the filing of the charge sheet and the period for the calculation of the number of days of detention would commence from the date of remand of the accused and not from the date of arrest.

The Court also said that at present, the settled law persists in the view that non-filing of the FSL Report with the charge sheet does not fall within the realms of Section 173(2) of the Cr. P.C so as to consider it as an “incomplete report”. In the present case although FSL Report has not been filed, however, the charge sheet was already filed on 3rd March 2021. Further, the quantity recovered from the accused is of commercial nature barring the accused from bail under Section 37 of the NDPS Act. Therefore, finding no infirmity in the impugned order, the court dismissed the plea.

CASE NUMBER

Crl.A. No 14/2013

CITATION

W.P. (C) 3918/ 2020

BENCH

Justice Pratibha M. Singh

DECIDED ON

12. 04. 2021

RELEVANT ACT/SECTION

Narcotics Drugs and Psychotropic Substances Act, 1985 and Article 21 of the Constitution.

BRIEF FACTS

The petition was filed by the petitioner for the removal of the judgment titled, ‘Custom v Jorawar Singh Mundy’ from the platforms such as Google, Indian Kanoon, and Vlex.in. The case of the petitioner is that the petitioner is of Indian origin but an American citizen. He claims that he is indulged in portfolios of real estate etc. When he came to India, a case under Narcotics Drugs and Psychotropic Substances Act, 1985¹ was made against him. After that, he was acquitted by the trial court under this case. the decision of the trial court resulted in an appeal before the high court. The high court decided to uphold the acquittal of the petitioner.

According to the petitioner’s claims, he or she returned to the country and attended the University of San Diego School of Law to further pursue his or her legal education. After that, he understood that he was at a severe disadvantage because any prospective employer looking to check his record before hiring him might easily find the court’s verdict by conducting a google search. Despite having a strong academic background, the petitioner claims that he has been unable to find employment that meets his expectations. He attributes this inability to the fact that this judgment is publicly available online.

The petitioner also issued the legal notice to the platforms such as Google India Private Ltd, Google LLC, Indian Kanoon, and vLex.in. The website of vLex.in contended that they have removed the said judgment but it is still available on other platforms. To recognize the petitioner’s Right to Privacy under Article 21 of the Constitution², the prayer in this writ petition is to direct the removal of the abovementioned ruling from all respondent platforms.

ISSUE

Whether a court order can be removed from the online platforms?

DECISION

The court held that the charges brought against the petitioner were dismissed from the case. Despite having been ultimately found not guilty in the case by the aforementioned judgment, this Court believes that the petitioner is still entitled to some interim protection while the legal issues are still pending adjudication by this Court because of the irreparable harm that may be done to his social life, career prospects, and legal standing.

The court directed the respondent no. 2 and 3 to remove the judgment titled, ‘Custom v. Jorawar Singh Mundy’ from their search results. Whereas, Indiankanoon was directed to block the said judgment from being retrieved by using search engines such as Google, Yahoo, till the date of the next hearing.

CONCLUSION

A person’s life will be as bad as hell if information about their criminal history or any occurrence that would have caused the public to have a bad opinion of them is made public. He or she will be imprisoned in their former lives. India has experienced rapid development in recent years. This development occurred on top of the nation’s digital technologies roots. The internet and smartphones have integrated seamlessly into our daily lives. Additionally, courts are now acknowledging that Article 21 covers access to the internet. Some of us would prefer to move on from our pasts and forget about them. The issue emerges when a person’s past mistakes chain him and causes him to make the same mistakes over and over again.

The Right to be forgotten aims to provide assistance in this issue. The scope of the Right to be forgotten should be expanded and must include removing everything that is “irrelevant, erroneous, or inadequate.” It should not be limited to “sensitive personal data.” In this instance, the petitioner’s attorney has highlighted the fact that, in the absence of supporting legislation, the public is likely to disagree with the petitioner’s request and support the right to privacy and freedom of expression. According to Akshat Bajpai, a lawyer for one of the petitioners, big multinational corporations operate differently in Europe than they do in India when it comes to following the law. It is essential to secure someone’s privacy given how quickly technology is developing. The right to be forgotten ensures that an individual’s privacy will be protected and supports their right to free speech. The establishment of such a right in India will assist the populace in managing their “digital footprint” and address the problem of data security and misuse that has recently emerged.

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REFERENCES

1. The Narcotics Drugs and Psychotropic Substance Act, 1985.
2. The constitution of India, 1950, Art. 21

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

CASE NUMBER

Writ Petition No. 57 of 1979

CITATION

1979 AIR 1369, 1979 SCR (3) 532

APPELLANT

Hussainara Khatoon and Ors.          

RESPONDENT

Home Secretary, State of Bihar

BENCH

A.D. Koshal, P. N. Bhagwati and R.S. Pathak, JJ.

DECIDED ON

9 March 1979

ACTS/SECTIONS

Article-21 and Article-39(A) of the Indian Constitution.

INTRODUCTION

Quick preliminary is the soul of law enforcement. It is a huge part of a fair preliminary that isn’t simply useful to the person in question yet additionally to the denounced. It assumes a significant part in staying away from the unsuccessful labor of equity. A denounced can’t be denied a rapid preliminary basically on the ground that he neglected to guarantee it. The case at hand is a milestone case, settled on 9 March 1979, which gave an expansive meaning to Article 21 and expressed that a rapid preliminary is a key right of each and every resident.

BACKGROUND

The case is an achievement judgment on the catalyst primer of cases that came to be seen as a chief right of each accused person. It is a part of the real association of value. The Constitutional responsibility upon the State to endeavor the confirmation of honors of individuals under Article 21 is exhaustive of the commitment to ensure there is a quick starter of cases. It furthermore ensures the choice to get to free legal organizations for the poor as a central piece of Article 21 of the Constitution. The Supreme Court precluded that the State ought to ensure free lawful guide and a rapid preliminary to regulate equity.

BRIEF FACTS

The writ demand has gone before the Court the becoming mindful of the appearance of under-fundamental prisoners in the region of Bihar. The territory of Bihar was facilitated to report a re-evaluated frame showing a year-wise division of the under-fundamental prisoners following dividing into two general classes viz. minor offenses and huge offenses that were not finished.

ISSUES RAISED

• On the off chance that the right to expedient preliminary is viewed as a piece of Article 21?
• Could the arrangement of the free legitimate guides at any point be upheld by the law?

ARGUMENTS ADVANCED

It has been declared in the counter-sworn proclamation to the course of the Court that various under-primer prisoners, up-and-comers in this, restricted in the Patna Central Jail, the Muzaffarpur Central Jail, and the Ranchi Central Jail, going before their release have been reliably made before the Magistrates at different events and have been remanded again and again to lawful authority by them. Nevertheless, the Court found this averment unacceptable as it doesn’t adjust to the course of making the dates on which these under-starter prisoners were remanded. In addition, to legitimize the pendency of cases, it has been seen that in 10% of the cases, the assessment is held up in view of the delay in receipt of notions from trained professionals. This clarification was prohibited by the Court as the State can by and large use more subject matter experts and develop more exploration communities.

JUDGEMENT

The court examined the issue of undertrial detainees not being delivered on bail and featured the requirement for a far-reaching legitimate administration program. It held that lawful administrations are a fundamental element of just, fair and sensible technique under Article 21. The court held that it is the sacred right of each and every denounced individual who can’t connect with a legal counselor by virtue of reasons, for example, destitution, neediness, or incommunicado circumstance to have a legal counselor given by the State assuming the conditions of the case and the necessities of equity so required. The court likewise explicitly coordinated that at the following remand dates, the judges ought to designate legal advisors (given by the State at its own expense) for under-trial detainees who are accused of bailable offenses or have been in jail past one portion of the most extreme discipline they could be given, to make an application for bail. At last, it urged the Government the need to present a thorough lawful administration program.

Thus, the court recommends to the State and the Central Government, a thorough legal help program that is directed not simply by Article 14 which guarantees comparable value, and Article 21 which presents the honor to life and opportunity, yet also exemplified in the laid out request typified in Article 39A. The State can’t deny the safeguarded right to a quick starter to the censured by contending cash-related or administrative failure. The court is in this way expected to embrace a protester strategy issue headings to State to take positive action to secure execution of the fundamental right to a fast primer.

REFERENCES

1. Project 39A, https://www.project39a.com/legal-aid-landmark-judgments ( Last accessed on 29 July,2022)

This article is written by Arpita Kaushal, a student of UILS, PUSSGRC, HOSHIARPUR.

CITATION

78/2019; 77/2019; 79/2019; 76/2019

BENCH

Justice Manojit Bhuyan; Justice Soumitra Saikia

FACTS AND BACKGROUND OF THE CASE

In the present-day, internet and social media platforms have gained importance over a period of time. The government’s frequent action of shutting down internet services for one region or another on the ground of ‘Public Safety’ has now become a hindrance in the life of people. Despite recognition of Right to Internet under Article 21 of Indian Constitution, it failed to provide relief to citizens. Due to the widespread protests in regions of north eastern areas, it led to chaotic situation in country, resultantly government was forced to shut down internet services as claimed by government of various states. In the instant case there were four petitioners namely Advocate Banashree Gogoi, Deva Kanya Doley, Randeep Sharma and Journalist Ajit Kumar Bhuyan who filed a Public Interest Litigation to challenge the notifications of Government of State of Assam that suspended the internet services on 11^th December 2019. Government banned internet services in 10 of its districts for a complete day and reasoned its action as to stop further protest that may happen due to the newly amended Citizenship Act.

LAWS INVOLVED

Article 32: The right of every citizen to move to Supreme Court if his/her any fundamental right is violated. Supreme Court can issue writs to any government authority, private authority or private individual for that matter.

Article 226: It provides power to High Court for enforcement of fundamental rights or other legal rights by way of issuing writs to any government authority, private authority or private individual for that matter.

Indian Telegraph Act, 1885: It provides that Indian Government has exclusive jurisdiction over maintain, establishment, operating, licensing and oversight over systems either wired or wireless. 

Section 5 (2) Indian Telegraph Act, 1885: It gives authority to governments both at central and state level for preventing of transmission of messaging during a situation of public emergency or for public safety or in the interests of sovereignty, integrity and security of India.

Temporary Suspension of Telecom Services (Public Emergency or Public Safety), 2017: It empowers the government to shutdown internet services in any particular region by way of notification based up on public emergency.  

ISSUE

Whether the State Government of Assam had enough reasons for contentment of public to justify the further continuation of ban on internet services?

DECISION OF COURT

It was recalled by court that an order dated 17-12-2019 has already been passed, that despite of restoration of normal conditions in state the Government of Assam refused to lift the ban on internet services; this results in freezing the entire working of cities. Due to the problems faced by many locals of state in their day-to-day lives, the Hon’ble Supreme Court passed an order that suggests the state government to restore internet services for fewer hours and to justify their action of continuing suspension. It was contented by petitioner that the term ‘Law and Order’ and term ‘Public order’ have different meanings and State Government is not making any effort for assessing the situation for peaceful ‘Public Order’. Whereas, State Government claimed it reviewed its decision where they put forward those inputs from various agencies and a meeting among State Authorities regarding the issue led to decision’s continuation.

It was argued the restoration of broadband services and lifting of curfew itself shows that ‘grave’ law and order situation has already waved away. Court stated that respondents have no reasons to justify that internet services disrupts law and order situation. Finally, court states that internet services play a major role in lives of people with advancement of Science and Technology, shutting down internet services would only cause further chaos in lives of people. The state government when issued notifications there was reasonable apprehension regarding law and order in society. Law surely does permit suspension of internet services whenever necessary however, in the current situation the State Authorities failed to assess the situation and to justify the continuation of ban on internet services. Court directed the Government of State of Assam to restore internet services on 19-10-2019 at 5.00 P.M. State is free to take any steps for stopping any violence that may take place in the future. The decision by court protects and extends the ambit of an individual Right to Receive and impart information providing no exception to state’s justification for ban. It gives a broad view over the protection of fundamental rights not based on mere apprehension of threat to ‘Public Safety’. The government must have enough reasons for internet shutdowns or for hindrance in way of any fundamental right if it failed to contentment of public for any action that harms one’s fundamental rights, it may suffer consequences.    

This case analysis is written by Simran Gulia, currently pursuing BA LLB from Maharaja Agrasen Institute of Management Studies.

Coordinating a fair trial for those who are inculpated of criminal offences, is the backbone of democracy. A ‘fair trial’ is one of the most important humanitarian aspects of criminal justice and, in a way, an important component reflected in the rule of law. Acknowledgement of the fairest possibility to the accused in order to prove their integrity is the key component of every fair trial. Escorting a fair trial is fruitful both to the accused as well as to the civilisation. A conviction arising from an unfair trial is conflicting with our theory of justice.

INTRODUCTION

A fair trial clearly would mean a trial before an unbiased judge, an honest prosecutor and an environment of judicial tranquillity. A fair trial means a trial in which there’s no discrimination, it is not influenced or twisted for, or against the inculpated and the witnesses or the source which is being tried. If the witnesses get terrorized or are imposed to give forged evidence that also would not score in a fair trial. The failure to gather necessary witnesses is certainly denying a fair trial. The right to a fair trial in a criminal prosecution is enshrined in Article 21. Additionally, Section 142 of the Evidence Act does not give power to the prosecution to put leading questions on the material part of the evidence that a witness intends to give against the accused. To do so infringes the right of the accused to have a fair trial which is enshrined in Article 21, this is not curable in irregularity. The right to have a fair trial, rigorously in terms of the Juvenile Justice Act which would involve procedural protection, is a fundamental right of the juvenile too.

CONCEPT OF A FAIR TRIAL

The right to a fair trial is not just a right furnished in our country but it is also promised by numerous other statutes worldwide. Article 6 of the European Convention on Human Rights concerns the Right to a fair trial. The Article states that everyone is authorized to have a fair and general hearing within a rational time. The trial must be directed by the liberated and unprejudiced court of law. The African Charter of Human Rights shields the nobility of humans and prevents unfair treatment under Article 5. Article 6 of the same charter also assures separate liberty and safety to a person. The right to a fair trial is promised under Article 7 which embraces several rights like the Right to appeal to adequate jurisdiction, to defence, to be tried and to be assumed decent until proven guilty. Article 14 of the International Convention on Civil and Political Rights (ICCPR) furnishes the right to a fair trial and Article 16 gives a right to acknowledgement before the law. Article 10 of the Universal Declaration of Human Rights (UDHR), promises the right to a fair trial. The precautions related to a fair trial in the International Convention on Civil and Political Rights (ICCPR) are further intended and elaborated than the provisions in UDHR.

Principles of Fair Trial –

1. Presumption of integrity.
2. Unbiased, unprejudiced, equitable and competent judge.
3. Speedy and efficient trial.
4. The trial should be in an open court.
5. Proficiency of allegation on adequate occasions.
6. The trial is to be conducted in the presence of inculpated.
7. Evidence to be taken in presence of inculpated.
8. Cross-examination of prosecution witnesses.
9. Prohibition of vulnerability.
10. Legal help to be provided.

In Hussainara Khatoon v. Home Secretary, State of Bihar¹, the Supreme Court has laid great emphasis on speedy trial of criminal offences, and has emphasised: “It is implicit in the broad sweep and content of article 21.” A fair trial suggests a speedy trial. No strategy can be ‘judicious, fair or just’ unless that procedure establishes a speedy trial for the determination of the sin of such a person.

In Pratap Singh v. the State of Jharkhand², the Supreme Court held that the right to have a fair trial strictly in terms of the Juvenile Justice Act which would include procedural safeguards is a fundamental right of the juvenile.

The advent of Maneka Gandhi v. Union of India³ strengthened the concept more. This is a landmark case of the post-emergency. It exhibits liberal propensities that have affected the Supreme Court in the matter of elucidating fundamental rights, particularly, Article 21. A great evolution has come about in the judicial perspective towards the guardianship of personal liberty after the agonizing experiences of the emergency from 1975 to 1977 when personal liberty had outstretched its nadir, as understandable by the Supreme Court. It performed as a catalytic agent for the evolution of the judicial opinion on Article 21 and has been enduring varied pay-off expansion of Constitutional Law in India.

Article 21 guarantees every person a right to life and personal liberty and uses four decisive expressions, viz., ‘life’, ‘personal liberty, ‘procedure’ and ‘law’.

1. Life: Bhagwati J., has perceived in Francis Coralie v. Delhi⁴, that the right to life comprises the right to live with human dignity and all that goes down with it, namely, the sustained demands of life such as sufficient nutrition, clothing and shelter above their head, reading, writing and expressing oneself in different forms, mobility and mixing and commingling with the contemporary environment.
2. Personal Liberty: M. C. Mehta v. Union of India^5, the Supreme Court commented that the term personal liberty is not cast-off in a myopic sense but has been used in Article 21 as a concise term to incorporate within it all those diversity of rights of a person which go to make up the personal liberty of a man. The liberty of a person has to be stabilized with his responsibilities and obligations towards his comrade citizens.
3. Law: Article 21 also takes in several species of law other than the laws enacted by the legislature. S. M. Sharma v. Shri Krishna Sinha⁶ said that the rules made by a House of the state legislature under Article 208 have been regulated as laying down procedures established by law for purposes of Article 21. Article 21 applies to the area of legislative privileges and, thus, a person cannot be imprisoned for breach of privilege of a legislature accepted following the procedure established by law. Proceedings held before the committee of privileges of a House of the legislature under the rules framed by it in pursuance of article 208 or article 118 are by procedures established by law.
4. Procedure: It is now established after Maneka Gandhi that procedure for reasons of Article 21 has to be reasonable, fair and just. The expression procedure acclaimed by law expands both to substantive as well as procedural law. A course of action not fulfilling the features is no course of action at all in the eyes of Article 21. In Olga Tellis v. Bombay Municipal Corporation⁷, the Supreme Court has again highlighted that the procedure directed by law for the seizure of the right vested by Article 21 must be fair, prejudiced and reasonable. The procedure directed by law for seizing a person of his right to life must abide by the norms of justice and fair play. The procedure which is unjust and biased in situations of a case, allures the voice of unreasonableness, thereby deteriorating the law which highlights that procedure and consequently, the measures taken under it.
5. The onus of proof: The presumption of innocence is a human right. Article 21 given its costly meaning not only protects life and liberty but also envisages a fair process. Similarly, under Article 21, the burden is never on the petitioner to prove that the procedure prescribed by law which deprives him of his life or personal liberty, is unjust, unreasonable or unfair. Bachan Singh is an authority to propose that in cases arising under Article 21 of the Constitution, if it appears that any person is being deprived of his life or his liberty, then the burden of proof establishes the State Constitutional validity of the applicable law.

CONCLUSION

Article 21 visualizes a fair trial, a fair procedure and a fair investigation. Such a right not only entitles the appellant to be informed of their fundamental right and statutory rights, but it is also mandatory on the part of the Special Public Prosecutor to record the necessary material before the judge to show the appeal. Fair investigation and fair trial are closely connected to the preservation of the fundamental rights of the accused under Article 21 of the constitution. Reasonableness would be determined by the facts and conditions of a case and the appraisal by the courts.

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CITATIONS

¹ AIR 1979 SC 1360 : (1980) 1 SCC 81.

² AIR (2005) 3 SCC 551 : AIR 2005 SC 2731.

³ AIR 1975 SC 775 : (1975) 3 SCC 836.

⁴ AIR 1981 SC 746, 753 : (198) 1 SCC 608.

⁵ (2003) 5 SCC 376 : AIR 2003 SC 3496.

⁶ AIR 1959 SC 395, 410-11.

⁷ AIR 198 SC 180, AT 196-197 : (1985) 3 SCC 545.

This article is written by Ashmita Dhumas, who has completed her BA LLB from Agra College and is currently doing a diploma in Corporate Law from Enhelion.

-Report by Nishtha Tiwari

On Thursday, the Karnataka High court dismissed the writ petition of Habeus Corpus filed by a transgender, after the girl denied being in a relationship with him. This plea was filed to produce the girl in front of the court.

The petitioner who identifies himself as a man claimed that the girl is in a consensual relationship with him since 2019. The petitioner is of 23 years and the girl is of 18 years. The girl’s parents did not approve of their relationship and tortured her for being in a relationship with the petitioner.

He further alleges that the girl decided to leave her house and came to live with the petitioner. The very next day, the police informed the petitioner that the girl’s parents have filed a complaint of kidnapping their daughter. The police then asked the petitioner to bring her to the police station. The girl’s parents then took her away from the petitioner and they both were forcefully separated by her parents.

The petitioner was not aware of the whereabouts of the girl. He contended that the separation was illegal and unlawful confinement of the girl is a violation of Article 21. Therefore, the petitioner has filed the writ petition.

The police were ordered to produce the girl along with her parents in front of the court where she stated that the petitioner is only her friend. She does not want to live with the petitioner and denied the allegation that she is in a
relationship with the petitioner. She also stated that she wants to live with her parents.

The court stated that the petition filed by the petitioner is not maintainable and it was dismissed by giving a warning to the petitioner to not repeat such acts which violate the rights of a person under Article 21.

-report by Monishka Allhabadi

The Supreme Court ruled in the case LAXMIBAI CHANDARAGI V. STATE OF KARNATAKA that two consenting adults don’t need the permission of their family, community, or clan to marry. On February 8, the Supreme Court ruled over again that two adults who have agreed to marry don’t need permission from family, community, or clan. The Supreme Court issued its decision in response to a petition filed by a couple from Karnataka who eloped and married after the woman’s family refused to approve of their union. A division bench of Justice Sanjay Kaul and Justice Hrishikesh Roy ruled that the decision of an adult to marry the person of their choice shouldn’t be tormented by concepts like “class honor” or “group thinking.”

In this case, a family filed a missing complaint of their daughter who eloped and married someone without informing them. Following an investigation, the local police discovered Chandaragi’s whereabouts and it was revealed that she had married and was living with her husband. Despite this, police demanded that Chandaragi appear at the local police office to relinquish an announcement, failing which a kidnapping case would be filed against her husband at her parents’ request. To that end, the couple petitioned the Supreme Court, alleging that the IO was threatening the lady to return to Karnataka or he would file a kidnapping case against her husband.

The division bench of Justices Sanjay Kisan Kaul and Hrishikesh Roy halted proceedings in the hope that the woman’s parents would accept the wedding and resume social interaction with the couple. “Alienating the kid and son-in-law under the guise of caste and community will hardly be a desirable social exercise,” the seven-page verdict stated. Justice Kaul and Roy also stated that the younger generation is making the choice to settle with their life partners on their own, unlike the previous generations, where societal and caste, community differences played a major role in determining whom to marry. “Perhaps this is often the way forward, where caste and community tensions are reduced by such intermarriage, but within the meantime, these youngsters face threats from the elders,” the judgment stated.

The Supreme Court stated that a program to coach cops was urgently needed to accommodate such cases. Pulling up the local police, the court stated that its intervention wouldn’t have been necessary had the case’s investigating officer conducted himself more responsibly in closing the complaint. “If he really wanted to record the statement of petitioner No.1, he should have informed them that he would visit her and recorded the statement rather than putting her under threat of action against petitioner No.2 to return to the police office,” the court added.

“The police authorities mustn’t only counsel the present Investigating Officers, but also devise a training program for managing such cases for the advantage of all police personnel. We anticipate that the police authorities will take action during this regard within the following eight weeks to ascertain some guidelines and training programs on the way to handle such socially sensitive cases,” it added while dismissing the case. The court noted in its decision that educated adults were choosing their spouses, which differed from previous societal norms during which caste and community played a major role.