Tag: #SupremeCourtCases

This article is about the evolution of women’s rights before and after the Hindu Succession Act and how it has impacted gender equality.

INTRODUCTION

Gender inequality is one of the main aspects under the law which requires a major focus. There are still a variety of issues pertaining to gender inequality yet to be addressed. One of the major areas where it is still prevalent is property rights. It is true about the very fact that many legislations have been passed with an aim to improve the status of women in society by ensuring economic accessibility as well as their rights on property. Mere passing of the legislation is not enough, the focus on implementation matters and this is one of the major reasons why inequality still exists.

The blame shall not fall on the legislative or judiciary alone. Everyone involved in ensuring equality is collectively responsible in some way or another. Even women themselves are less motivated to uphold their rights because of familial expectations, public stigma, and associated demands. Ancient laws in the country including Hindu law were too harsh on women denying them basic economic rights. A woman was always considered as someone who is always dependent either on their father or their husband. women’s claim to property was reduced by the patriarchal structure laid down by the commentaries and smritis. Male members were given the right of inheritance of the property under the mitakshara school of law. Since divorce was uncommon, women could not easily be denied their right to a place to live and support themselves after marriage. The Hindu Woman’s Separate Residence and Maintenance Act, of 1946 also formalized a woman’s right to demand separate housing and maintenance in specific situations, such as abuse or adultery.

ANALYSIS

The Hindu women’s right to property bill was introduced in the year 1937. The primary aim of this bill was to achieve equality in the matter of property by evicting all sorts of discrimination between men and women. But due to heavy opposition from the public, the bill had to be modified. The English notion known as a widow’s estate was adopted where women were given only rights along with restrictions the concept of providing women absolute rights on the property was discarded. The bill focused on giving women the right the separate property after marriage. The concept of inheriting the family’s property was removed. This act gave more clarity to attaining property from the eyes of a widow and not a woman. Thus, more problems were created in place of solving equality. This gave rise to the setting up of a Hindu law committee in the year 1941 which proposed to give more clarity on this act. Later in 1944, a second Hindu law committee was formed which adopted both property rights in marriage as well as succession.

The Hindu Succession Act of 1956 revolutionized the whole matter of inequality in property rights by demolishing the patriarchal structure of men enjoying all the rights with women having little room to claim rights. Earlier only stridhana was awarded to women before marriage in place of property. But even it did not ensure financial independence as it was limited. But the Hindu succession act ensured economic viability as well as social independence. The act removed the restriction on absolute ownership and ensured.

As the years passed, many needs emerged which were not as such addressed by the succession act of 1956. Many areas of property law have still discrimination. Therefore, the government decided to amend the act of 1956 in the year 2005 with the aim to provide more economic stability to women of the society. The Hindu Succession Act of 2005 gave women the recognition of coparcener and gave them the power to inherit property like that of a son and now there is no difference in the rights of a son and daughter. Now women even have the power to become the karta of the family which earlier only male members could hold the status. The 2005 Act addresses unfairness in inherited property, residential properties, and widows’ rights. It also safeguards the interests of some new heirs by adding them to the Class I heirs list. In fact, it ensures social justice and equality for women in a more profound way. It basically repeals the antiquated Hindu legislation that denied women the ability to own property. The community of Hindu women supports this legislation. Now even a woman member of mitakshara will be born with a silver spoon. All of her rights will be equal to those of her male equivalent. She is nevertheless subject to the same legal obligations for coparcenary property as a male. The Amendment Act of 2005 permits her to request a division of the dwelling. A widow no longer faces the restriction that barred her from inheriting her late husband’s assets if she marries again.

Landmark judgments and judicial interpretations

One of the major landmark judgments regarding the succession act was the Prakash v. Phlulvati[1] case, In fact, it ensures social justice and equality for women in a more profound way. It basically repeals the antiquated Hindu legislation that denied women the ability to own property. The community of Hindu women supports this legislation. Now even a woman member of mitakshara will be born with a silver spoon. All of her rights will be equal to those of her male equivalent. She is nevertheless subject to the same legal obligations for coparcenary property as a male. The Amendment Act of 2005 permits her to request a division of the dwelling. A widow no longer faces the restriction that barred her from inheriting her late husband’s assets if she marries again. She will be eligible for her father’s tribe and self-involved property since birth because the amendment’s main purpose was to abolish the current discrepancies between sons and daughters about their coparcenary liberties. The High Court decided that the revised clauses should be applied. In spite of this, the Supreme Court rejected the High Court’s request, stating that the Act shall apply in the future and until it is expressly stated in the statute.

Since the amendment’s primary goal was to eliminate the current disparities between daughters and sons regarding their coparcenary rights, she will be entitled to her father’s tribe and self-involved property from birth. The altered sections should be used, the High Court said. However, the Supreme Court denied the High Court’s motion, holding that the Act will continue to be in effect up until and unless otherwise specified in the act.

In a recent decision known as Vineeta Sharma vs. Rakesh Sharma[2] stated on the eleventh of August 2020, the status of women’s coparcenary rights has been switched. In this case, it was decided that regardless of when they were born—before or after the amendment—the ladies would be eligible for coparcenary status and the same liberties as sons.

The requirement that dads should be alive on the day the law was passed (09.09.2015) is not necessary. The court gave the act a “retroactive” application. The court’s decision in the Prakash v. Phulvati[1] case was overturned, granting equality to women. The court offered an option between the two viewpoints, first providing women equal coparcenary freedoms since birth and disregarding the fact that the father was still living at the time the amendment was made. Clarification was provided for all the ambiguity and confusion surrounding women’s succession rights.

Conclusion

Over time, things have changed gradually. Women in the modern day now have the same inheritance rights as sons after a gradual process. The rules that prohibited gender inequality are no longer in effect. beginning with the Mitakshara rule, which prohibited women from co-owning property and so discriminated against them. The 1956 Hindu Succession Act also fell short of social law’s standards and wasn’t gender-neutral.

With the Hindu Succession Amendment Act of 2005, which gave women coparcener status, significant changes were brought about. Even though there were conflicting legal options and a chaotic demeanour, the “Vineeta Sharma Case” provided a definitive statement on the subject at hand. The Supreme Court made its final ruling, stating that it is the responsibility of the courts and other bodies to uphold the established principles.

Citations

1. Prakash v Phlulvati, A.I.R. 2011 Kar. 78.
2. Vineeta Sharma v Rakesh Sharma, (2020) AIR 3717 (SC).

This article is written by Vishal Menon, from Symbiosis Law School, Hyderabad.

Case Citation

1981 SCR (2) 408, 1981 SCC (1) 627

Bench

Bhagwati, P.N.

Decided on

19/12/1980

Relevant Act/Section/Article

Articles 21 & 22 of the Constitution of India, 1950, Sections 50, 56, 57,167, etc. of the Code of Criminal Procedure, 1973.

Introduction

With about 70% of the country’s population living below the poverty line and perhaps more legally illiterate, it will be difficult for the judiciary of the world’s largest democracy to bring justice to everyone. Legal aid and representation are important elements in the legal remedy of wrongdoing by the guilty, and in countries like India, poor living conditions and financial constraints make it difficult to find oneself before the country’s justice system. Lack of representation is common. The provision of free legal aid under Article 39A¹ of the Indian Constitution, introduced by the 42nd Amendment to the Indian Constitution, is encouraged. But the inclusion of such a provision came at the cost of, an insight into, despicable injustices committed in the past.

Facts of the case

Between 1979 and 1980 there were reports that police poured acid into the eyes of 33 pre-trial detainees in Bhagalpur, Bihar. It was reportedly the worst case of police torture and has come to be known as one of the darkest times in independent India’s history. Bhagalpur Blindings case is another name for this case. Prisoners on trial were blinded by the police and brought before a judge, who failed to investigate any injuries intentionally or unintentionally inflicted on the defendant, and the district and session courts judges visited the alleged Bhagalpur Jail only once a year to review prison conditions. The blind prisoners were later admitted to the Rajendra Prasad Eye Institute in New Delhi, but their eyesight was severely impaired and could not be restored by surgery or treatment. Several briefs were submitted to the Supreme Court and the Court decided to hear them all together.

Issues of the Case

• Whether the state was liable to pay compensation to blinded prisoners for violation of the fundamental right under Article 21² of the Constitution.
• Whether the state failed to provide legal representation to the accused.
• Whether the magistrate failed to discharge his duty of offering free legal aid to the
• accused.

Petitioner Arguments

Articles 21 and 22³ require the state to provide free legal aid to all those in need. It is important to ensure that those accused of crimes receive a proper, fair, and just trial. Article 22(1) expressly guarantees an individual’s fundamental right to be represented by an attorney of their choice. Detainees were blinded intentionally and it violated their constitutional right to live with dignity under Article 21. In many cases, the accused were not brought before judicial authorities at their first appearance and remained in prison without judicial authorities ordering pretrial detention of the accused.

Article 21 implies an obligation to compensate a person who has been deprived of life or personal liberty by means other than those provided for by law. As a result, the state is obliged to compensate blind prisoners. Furthermore, it may not be safe for prisoners released from the Eye Institute to return to Bhagalpur. Arrangements should be made to have them housed in New Delhi at the state’s expense.

In some cases, the accused were not handed over to judicial authorities within 24 hours of arrest, which is a violation of Article 22(2) of the Constitution and Sections 56 and 57 of the 1973 CrPC⁴. They also did not investigate prisoners for “eye injuries.” Most of the blind prisoners said in statements to the Registrar that they had never been brought before a judicial officer, implying that the judicial officers merely signed the review order. In other cases, the accused were detained without remand. District and session magistrates did not inspect Bhagalpur’s central prison at any point in 1980. This is in clear violation of Supreme Court rules regarding joint and personal routine visits to prisons by District Judges, Sessions Magistrates, and Chiefs of Police. The independent judiciary fails to protect constitutional rights.

Respondent Arguments

None of the detainees sought legal assistance. As a result, the judge did not ask if he wanted legal representation at state expense. Financial constraints make it difficult for states to provide free legal aid. The state already bears many costs. As a result, it has become financially and administratively impossible to provide free legal assistance to the accused. It is not yet clear that the prisoner was blinded by the police and the investigation is still ongoing. There is currently no evidence that the state violated the victim’s right to life and personal freedoms beyond the judicial process. The defendant’s testimony alone cannot be trusted. It’s just hearsay evidence with no legal basis. An investigation into the pre-trial detention of suspects by police officers is ongoing. Therefore, the conclusion that the state is responsible at this time is not valid. Even if the police blinded someone and there was a violation of the fundamental rights enshrined in article 21, the state could not be held responsible for compensating the victims. There is no indication of improper conduct by the judicial officer. The blind person’s testimony to the Registrar that he was not brought before judicial authorities have not been substantiated. The accused’s unilateral testimony should not be taken seriously.

Judgment

Courts are in the constitutional obligation to provide free legal assistance to the accused at all stages of a trial if the defendant suffers poverty or hardship to achieve the goals of justice., ruled that it failed to do so. The court must inform the third judge and all courts at large that the judicial officer is entitled to render legal aid free of charge to the accused, if necessary, at the cost of instructing the state to pay for it. The court barred draconian action against the accused who failed to appear before a judge within 24 hours and called on state police to step up vigilance going forward. The court also held the state responsible for its egregious encroachment on the lives and liberties of prisoners by the police and ordered the state to compensate the victims, since the police are directly employed by the state and are also the means of the state.⁵

Analysis of the Judgement

The court began its argument by expressing its disappointment that the defendants were not granted or provided legal assistance by the judge simply because they did not request it. In the case of Hussainara Khatoon v. Secretary of the Interior⁶, the court held that the right to free legal advice is a fundamental right of a person accused of a criminal offense even if the defendant can afford it. The Court’s decision, in this case, is a clear law as illustrated by binding case law under Article 14(1) of the Indian Constitution. And the Court has expressed its displeasure that most states in the country have failed to heed its decisions or make efforts in that direction. The submissions made by the state that the financial condition of the state was not good enough to provide legal assistance to the accused, cannot be used as an excuse to avoid responsibility. To back this up, the court in the case of Rhem v. Malcolm⁷ said, “No government is permitted by law to deprive its citizens of their constitutional rights based on poverty.”

It quotes Justice Black in Jackson v. Bishop, who said, “Humane considerations and constitutional requirements are not to be measured by dollar considerations in this day and age.” The court emphasizes that the constitutional obligation to provide free legal aid to an accused applies not only when the trial begins, but also when remand orders are issued and when the accused is presented before the court from time to time. It makes use of the fact that approximately 70% of people living in rural areas are illiterate, and even more are legally uneducated and unaware of their legal rights and entitlements, which compensates for the additional burden on the state and the judiciary to ensure that such people are served justice. The legal aid movement is mentioned, and it is claimed that leaving the practice of rights to the sole efforts of an uneducated populace would make a mockery of the legal system and that legal aid would end up being a mere paper promise. The court orders that prisoners be transferred to the Blind Relief Association of Delhi after they are released from the hospital, as it may not be possible to return them to jail, where their safety may be jeopardized. It also finds that some of the accused were not brought before a magistrate within 24 hours of their arrest, which is a violation of every person’s legal right under Article 228⁸ and Sections 56 and 57 of the CrPC 1973. It is also shocking that the state continues to detain the accused without remand of orders, which violates the personal liberty guaranteed by Article 21.

The court condemns the police for such fundamental violations of arrest and detention rules and warns them not to repeat the same mistakes. As to whether Bihar is responsible for blinding detainees, the court was right for making them accountable that it was because the police officers were public servants in Bihar and were working for the state. The Court was also disappointed to learn that an inspection of Bhagalpur Prison by the District Court and the present court in 1980 had not taken place in violation of Supreme Court rules, and asked the High Court to thoroughly consider the matter and ordered law enforcement to conduct a thorough investigation to ensure law enforcement. The whole judgment is quite impressive and right. The court has given due regard to the principles of natural justice and made decisions that empower the poor and marginalized while bringing the guilty to conviction.

Conclusion

It is one of the most commendable decisions that has been given by the Hon’ble Supreme Court. The decision was made by Justice P.N. Bhagwati, a pioneer in the judicial movement and one of the Supreme Court’s most prominent jurists. This is a brutal and shameful way in which the state police, paid and stationed solely to maintain peace and harmony, and public safety, exercise their power to hold the lower courts wrong. On the one hand, the decision remains as important as it is today, providing a strong precedent and hopefully serving as a strong deterrent against similar events in the future. The ruling strongly supports the provision of free legal aid and brings justice to those who cannot afford it, as the court articulated in the Hussainara Khatun case.

---

References

1. The Constitution of India,1950, Art. 39 A
2. The Constitution of India,1950, Art. 21
3. The Constitution of India,1950, Art. 22
4. The Code of Criminal Procedure,1973, Sec. 56 and 57
5. Khatri vs State Of Bihar 1981 SCR (2) 408, 1981 SCC (1) 627
6. Hussainara Khatoon vs. Home Secretary, State of Bihar 1979 AIR 1369 1979 SCR (3) 532 1980 SCC (1) 98
7. Rhem v. Malcolm, 377 F. Supp. 995 (S.D.N.Y. 1974)
8. The Constitution of India,1950, Art. 228

This case commentary is authored by Jay Kumar Gupta, a student of the School of Law, NMIMS Bangalore, currently in the second year of BBA LL.B.(Hons.).

Case Number

Special Reference No. 1 of 1964

Case Citation

AIR 1965 All 349, 1965 CriLJ 170

Bench

J Takru, G Mathur

Decided on

10 March 1965

Relevant Act/Section/Article

Art. 211, Art. 22, Art. 194, Art. 21, Art. 143

Introduction

The Kesavananda Bharti case is well-known and frequently discussed, yet few people are aware that the Kesavananda Bharti case was assigned to a bench with less than half the judges who decided the Keshav Singh case. It required the combined efforts of numerous justices of the Supreme Court, High Court judges, MPs and MLAs, and ultimately the Prime Minister and the Chief Justice of India to take on this case. One of the most remarkable examples from Nehru’s presidency is this one. This case is of utmost significance to the Indian judicial system, but it has never been talked about.¹

Facts: Who was Keshav Singh?

In the Uttar Pradesh city of Gorakhpur, Keshav Singh was born. He belonged to the socialist party or served in municipal politics. The Congress Party was in power during the time. When a leaflet titled “exposing the shortcomings of Narsingh Narain Pandey” was published, it implied that Pandey, a legislator for the Congress Party, was dishonest. Narsingh Pandey started working on a case against Keshav Singh as soon as he learned about the booklet or leaflet. Pandey and other MLAs from the Congress party disagreed with the leaflet. They claimed that the leaflet violated their right to privacy. When Singh was asked to confirm his name on this issue by the district of the legislative assembly in Lucknow, he remained silent regarding the accusations made against him. When queries were directed at him, he stood with his back to the speaker and stayed silent. On February 19, 1964, Keshav Singh was supposed to go before the assembly and accept a reprimand, but he didn’t because he didn’t have the money to go (according to his excuse). The assembly decided that whatever that couldn’t be achieved amicably would have to be taken by force after Keshav Singh’s defense. On March 14, Singh was apprehended and brought before the assembly. If it weren’t for the decision dismissing Keshav Singh and his attorney’s appeal, the litigation and the issue might have been over at that point.

When the speaker of the legislature keeps asking questions, Singh chooses the challenging course. After then, things started to get worse, and the speaker called Congress MLAs to the assembly. Singh had written to the speaker to protest his conviction, attest to the veracity of the charges made in the leaflet, and denounce the authoritarian nature of the arrest warrant. By entering the home, Chief Minister Sucheta Kripalani imposed seven-day house detention on Singh after the MLAs had enough consensus on the same. The legislature approved a resolution in the format suggested by the chief minister, and Singh was then taken to prison for his one-week sentence. One day before Singh was scheduled to be released after serving his sentence, a lawyer on his behalf submitted a petition to the Allahabad High Court asking for his immediate release. The petition claimed that Singh’s imprisonment was unlawful because the assembly lacked the right to imprison him and because he was not allowed to defend himself after being brought before the court.

Issues

1. Whether or not the Legislative Assembly has no criminal jurisdiction and no authority to punish anyone for its contempt;
2. Whether or not the Legislative Assembly has such authority, the petitioner’s detention is illegal and violates Article 22(2) of the Constitution.
3. Whether or not the Legislative Assembly’s action in punishing the petitioner was malicious.

Observations and Decisions of the Court

The Supreme Court concurred, pointing out that the resolution of the assembly violated the independence of the judiciary. Article 211 was an essential component of the system that allowed courts to make difficult decisions, even if they were wrong, without worrying about political retaliation, therefore it could not be reduced to a meaningless assertion. The Supreme Court ruled that Keshav Singh can be granted bail while awaiting a decision and that the high court has the authority to consider his appeal. The parliament lacked the legal right to order Solomon’s arrest or to ask Justices Beg and Sehgal for an explanation. If the consent of the justice addresses the audience, the drama may compromise the independence of the judiciary. On the other hand, if they show up and make a strong defense, the assembly might be forced to stop acting to avoid being accused of harassing well-meaning judges. The judges have the option of filing a petition with the supreme court, but there was no guarantee that the judges would share the same outcome as the justices who heard the plea. They petitioned the Allahabad High Court, arguing that the assembly’s actions were against Article 211 of the Constitution, which forbids state legislatures from discussing the conduct of any high court or Supreme Court judge. While the case was still pending in court, Justices Beg and Sehgal requested a hold on the resolution against them.²

The court referred to English law, which states that any detention is prima facie unlawful, and the act is justified by the person who ordered the detention. Further, the court held that the appeal was flawed and could only succeed if the petitioner established his or her claims. Prima facie, the detention cannot be considered illegal, and the petitioner must prove that the duty was illegal, the court must decide whether the obligation is lawful. The court does not understand why the defendant should not be allowed to argue that the bond, warrant, and commitments used to detain the petitioner were valid. In any event, the court is entitled to the assistance of the defendant’s attorneys in resolving the issues raised in the case.

Legislature has not yet passed legislation regulating the powers, privileges, and immunities of the House, but the power to do so is granted by Entry 39 of List II of Schedule VII of the Constitution. The powers and privileges of the Legislative Assembly must therefore be determined according to Article 194(3). There is no express or implied prohibition in the Constitution against the Legislative Assembly exercising the privilege enjoyed by the House of Commons to commit for its contempt. The possession of power or privilege The argument is that the House of Commons had a similar penal power and that the inclusion of a separate provision in Article 193 regarding the penal power indicates that the Constitution’s authors did not intend to include any penal power under Article 194 (3). In other words, the argument is that Article 193 encompasses all penal powers conferred on the Legislative Assembly and that no penal power can be assumed as a result of the provisions of Article 194(3). The court didn’t agree with this assertion. Article 193 merely limits the power and privilege of state legislatures to punish people who sit or vote in the legislature without authority, in our opinion. This Article cannot be read as exhaustive of all the penal powers of the State Legislatures to commit for contempt is a judicial power is, in our opinion, not a compelling reason for denying the power to the Legislative Assembly because our Constitution does not provide for a rigid separation of powers. Since, even according to the petitioner’s learned counsel, Article 193 gives the Legislative Assembly the power to punish a person who sits or votes as a member of the Assembly in certain circumstances, which is also like judicial power, it cannot be said that the idea of the Assembly exercising judicial power was abhorrent to the Constitution-makers.

The HC rejected Keshav Singh’s argument that the facts discovered against the petitioner by Parliament did not constitute contempt of Parliament. The HC also ruled that the defendants did not violate Article 21 or natural rights because the Legislatures had established procedures for investigating allegations of violation of privilege. The HC also said the county jail warden is within the jurisdiction to execute the chairman’s warrant. Noting that the provisions of Part III of the Constitution do not apply where Article 194(3) of the Constitution applies, the HC notes that the fundamental rights of Part III are governed by Article 194(3) of the Constitution. The HC also ruled that the applicant was deprived of his liberties following the legal procedure set out in the last part of Article 194(3). Petitioners also argued that Congress’ decision to arrest him was motivated by political animosity and hatred. The Court couldn’t prove it for that reason alone. The Supreme Court dismissed the Keshab Singh case and refused to infer parliamentary malice. In dismissing Keshav Singh’s motion, the High Court said only the House could decide whether there was contempt of the House of Commons in a particular circumstance and that the court had not addressed the question of legality.

While the case is about violations of fundamental rights and constitutional crises, the focus is on symbolic gestures of solidarity by judicial authorities and how they collectively resolve disputes while they exist. It is about upholding the dignity and basic rights of citizens. enshrined in the Indian Constitution. This case highlights the importance of the separation of powers as one of the key building blocks of the constitution and how each can control excesses and respond appropriately. This decision ensured a proper balance of power between the two peers.

The Supreme Court also ruled that Articles 105(3) and 194 should not be used to limit the rights of citizens and lawyers to bring cases before the court. The Supreme Court has ruled that the House of Commons, as the highest court of record in the country, not Congress, can only try someone for contempt with an unwarranted general arrest warrant. The principles of Fundamental Rights and Judicial Review, especially Articles 32 and 226, not only empower but also impose obligations on the Supreme Court and the Supreme Court to exercise fundamental rights. The Indian Parliament and the State Legislatures are entitled to such privileges. As a result, courts may view the House’s implied warrant as a statutory order to punish someone for contempt. The SC not only wanted to recognize that the House has the power to punish insults and violations of privilege. The independence of the judiciary is seriously undermined if the House asserts the right to question the actions of judges. Not only that, the house has the power to punish disrespect and violation of privilege. Before a decision is made, the Privileges Committee will conduct an investigation and allow the complainant to comment.

Conclusion

If it weren’t for several defects and errors in judgment, the conflicts between the high court and the Uttar Pradesh assembly would never have escalated to the extent that they did. It was unusual for Singh’s attorney to enter a plea with only one day left in Singh’s sentence. The judge would have promptly revoked Singh’s bail if the government’s attorney had arrived at the high court at 3 p.m. with a report on the case. The fact that this case shows how readily constitutional institutions can turn against one another and how tough situations are best resolved by statesmanship rather than brinksmanship makes it noteworthy in and of itself.

References

1. Keshav Singh vs Speaker, Legislative Assembly AIR 1965 All 349, 1965 CriLJ 170
2. Atharva Kulshrestha, Keshav Singh – Case commentary,aishwaryasandeep.com(Last Accessed: 09 July, 2022) https://aishwaryasandeep.com/2021/06/07/keshav-singh-case-commentary/

This blog is written by Jay Kumar Gupta, a student of the School of Law, NMIMS Bangalore, currently in the second-year of BBA LL.B.(Hons.).

Case No.

Civil Appeal No. 1013-1015 of 1987

Equivalent Citation

• (1997) 4 JT 124
• (1997) 3 SCALE 1
• (1997) 2 SCR 1086
• (1997) 4 Supreme 388
• (1997) 4 SCC 606

Bench

• Hon’ble Justice K. Ramaswamy
• Hon’ble Justice K. Venkataswami
• Hon’ble Justice G. B. Pattanaik

Decided On

14/03/1997

Relevant Acts

Constitution of India, 1950 – Article 14, Article 15, Article 16, Article 25, Article 26. Uttar Pradesh Sri Kashi Vishwanatha Temple Act, 1983– Section 16, Section 17, Section 18, Section 19, Section 20, Section 20(1), Section 20(2), Section 21, Section 22, Section 22(2), Section 23(2), Section 24(2), Section 25(8), Section 3, Section 4, Section 4(2), Section 5, Section 6, Section 6(1).

Brief Facts and Procedural History

The Supreme Court has received an appeal of the Allahabad High Court’s decision in this case. The two Honorable Justices of the High Court disagreed on whether the Kashi Vishwanath Temple is a place of worship, but they agreed that Parliament has the authority to pass laws governing its administration. The Pujaris commanded pilgrimages, the precincts were filthy, and Lord Shiva’s stolen jewellery was allowed into the premises. A committee was established with the recommendation that the government should seize control of the temple. Accordingly, two ordinances were promulgated one after the other until the Parliament enacted the Act for the management of the temple by the Government.

Issues before the Court

The Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983, which was to manage the temple of Lord Vishwanath, also known as Sri Adi Visheshwara of Kashi, has been questioned for its constitutionality.

The following issues were also up for decision by the Supreme Court:

• Whether Sri Kashi Vishwanath Temple is a denominational temple.
• Do followers of Lord Vishwanath have the constitutionally protected fundamental right to manage their religious affairs and manage the Temple’s assets following the law as guaranteed by Articles 25 and 26 of the Constitution?
• How important and integral are the traditional practices of the religion and religious practice protected by Articles 25 and 26?

Decision

1. Since it does not affect any of the rights of the religious denominations protected by Articles 25 and 26 of the Constitution of India, 1950, the Act passed to manage the temple is constitutional.
2. A denominational temple cannot be found at the Kashi Vishwanath temple. Shaivites are Hindus, and as such, they belong to no particular denomination. They are a part of the religion known as Hinduism. The Act protects the right to participate in ceremonies, rituals, or acts of worship that adhere to long-standing customs. 
3. Although Section 22 is regulated and extends the right to the means of subsistence under Article 21, the rights of those who work as archakas are unaffected.
4. The right to enter the temple, interact with Lord Sri Vishwanath’s Linga, and perform worship there is extended to everyone who practices Hinduism. The Act mandates that the State protect all manifestations of Hindu Lord Vishwanath worship, regardless of whether they are carried out following Hindu Sastras, regional custom, or temple-specific usage.  It is not restricted to a particular sect or denomination.  Shaiva worshipers are Hindus in general and do not belong to any particular denominational sect or group.
5. State regulation may apply to all secular activities that are connected to religion but do not directly relate to it or constitute an essential component of it. However, what constitutes an essential component of religion can be ascertained primarily from that religion’s doctrines following its tenets, historical context, change in evolved process, etc. The concept of essentiality in and of itself does not matter. When determining whether a particular religious matter, practice, or belief is an essential element of the religion, one consideration to make is whether the community as a whole sees the matter or practice as essential.

Analysis

The term “denomination” is extensively covered in this instance. A group that exists as a sect, group, class, or kind and has unique characteristics that set it apart from other groups is referred to as a denomination. The Constitution Bench had to decide on the precise definition of the term “denomination” in The Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt. It was decided, by the definition provided in the Oxford Dictionary, that the word “denomination” refers to a group of people or a class who are united under the same name as a religious group or body and who are known by a distinctive name. Even though Hinduism has many well-known denominations, not all of these groups are considered to be part of the denomination as a whole.

Every court ruling regarding a temple’s religious affiliation turns on the followers of that religion’s central doctrine. The denomination is not developed in a single day. The rituals will undoubtedly resemble Hindu religious rituals in general. However, that in and of itself is not sufficient to contest the status of a religious denomination. One of the twelve Jyotirlingas is Kashi Vishwanath. Jyotirlingas are worshipped following a predetermined set of rituals.  The temple’s followers provide endowments for such rituals by making donations. The pujaris are now considered to be a class that is a religious denomination for purposes of protection under Articles 25 and 26. Article 14 extracts class legislation. This class shall be accorded equal treatment under Article 14 for rights under Articles 25 and 26. 

The contested Act only affects secular activities; it does not affect religious freedom. The provisions of the Act make it abundantly clear what the purpose of the legislation is. It can only help to enhance the property’s management and upkeep. The Board will have the right to take possession of all real estate, including both movable and immovable property, money, valuables, jewellery, records, documents, tangible objects, and other assets that belong to or are a part of the Temple and its endowments under the terms of Section 13.

In State of Rajasthan and Others vs. Shri Sajjanlal Panjawat and Others¹, it was determined, following the ruling in the Durgah Committee of Ajmer case², that a religious denomination’s right to purchase property is distinct from its right to conduct its own business regarding religion. The former can be controlled by laws that the legislature can lawfully pass, whereas the latter is a fundamental right that cannot be taken away by the legislature.

The management of the endowments and property of the Temple shall be vested in the Board of trust for the deity of Sri Kashi Vishwanath temple. There is no controversy surrounding the selection of unofficial members. It is the appointment of the ex-official member of the board as the member in question. This amounts to the government having direct control over temple affairs. Non-Hindus cannot be appointed as board members, according to Section 3. While section 6 (1) calls for the ex-officio member to be appointed and to be of any religion.  But if ex-officio members are not Hindus, section 6 (3) allows for the appointment of the next available Hindu.

The term “Hindu” is currently undefined. According to the Supreme Court of India, a Hindu may or may not be someone who practices temple worship or professes a religion that originated in India.³ Sikhs, Buddhists, and Jain are all considered Hindus even though they don’t necessarily practice all the same rituals and worship as temple devotees. Hindus are guaranteed the right to enter the temple regardless of their religious affiliation under Article 25(2)(b). Can someone who doesn’t believe in the temple be given to the management of the temple?  Secondly, the non-Hindu official will authorize the Hindu official as a member of the board. Whether a non-Hindu will approve a Hindu’s appointment as a representative? The Act’s single goal is to administer the Temple more effectively and properly. Regarding effective management administration, there is no disagreement. It is only intended to usurp authority for the temple’s management. There are people on the board. These individuals need to be free from governmental control.

It has been decided that the Act protects the practice of Hindu religious doctrines, traditions, and usages.  However, the secular administration of the religious matters in the Temple is a secular component. The legislative branch has the power to impose restrictions on and make interferences with the efficient management of such resources. The Temple is not their property, even though Mahant, Panda, and Archaka are in charge. Simply put, the Act gave the Board control over the Pandas. On the designated day, only the pandas’ management rights were terminated and transferred to the Board for better and more suitable management. Neither does it belong to the State nor was it bought for that purpose. To put it another way, the Board has assumed control over the Lord Sri Viswanath Temple’s management now that the Pandas/Mahant are no longer in charge of it. It cannot be argued that this management change results in the property’s ownership rights being acquired or lost.

Hereditary individuals were in charge of running the temple. In the hands of the appellants, the management could still be carried out properly under the Act. There was no need for the appointment of the ex-officials to the board for the management of the temple. The court determined that managing the temple’s endowments and property, as well as other temple business, is a secular activity and is not protected by the religious freedoms guaranteed by Articles 25 and 26. Because of this, anyone, Hindu or otherwise, can control such activities. The Act only gives Hindus the chance to serve on the board that oversees the temple’s endowments and property and is considered a secular endeavour. Ex-official non-Hindu members who have every right to oversee secular activity are being mistreated.  Because if an activity, is secular, then every citizen of the country shall be eligible to be appointed without any discrimination. If an activity is religious, then it should not be interfered with by the government.

Conclusion

The Temple was managed by the descendants of the Mahant. The Act was enacted only for the excellent management of the temple since there was mismanagement by the descendants. Once the Act is established, it must make provisions for the committee’s creation and hand over management of the temple to the pujaris while making significant provisions for the punishment if mismanagement occurs again.

The case involved an appeal regarding the observance of the religious denomination’s fundamental rights, but it ultimately came down to ownership rights of the property and endowments. The court’s decision thus lies where religious and secular activity is distinguished. To keep balancing on this thin line, either the Act shall be amended to include the non-Hindus for maintaining the secular activities or the court shall include the management of the endowments and property of the temple as religious activity.

References

1. State of Rajasthan and Others vs. Shri Sajjanlal Panjawat and others, AIR 1993 SC 706.
2. The Durgah Committee, Ajmer and Another vs. Syed Hussain Ali and Others, AIR 1961 SC 1402.
3. M.P. Gopalakrishnan Nair And Another vs. State Of Kerala And Others, (2005) 11 SCC 45.

This article is written by Somnath Sharma, a law graduate.

CASE NUMBER

Appeal case filed in Calcutta High Court against the order of acquittal passed by Session Court of Midnapore in trial no 18 of March, 1980.

EQUIVALENT CITATIONS

1984 CriLJ 1535

BENCH

B. Chakrabarthi, J. Chaudhri

DECIDED ON

16 June, 1983

RELEVANT SECTION/ ACT

Indian Penal Code, 1860

Section 90 of the Indian Penal Code states that a consent is not a consent if given by the person under fear of misconception and injury or consent of a person who is of an unsound mind or intoxication unable to understand the nature and consequence of which he has given consent or consent of child unless contrary appears from context if the consent is given by the person who is under twelve years of age.

Section 376 of the Indian Penal Code states the punishment of rape offence except in sub-clause (2) any person proved to commit rape shall be punished with imprisonment that may not be less than seven years but for life or for a term that extends to ten years and also liable with fine unless the women raped was his own wife and is not under twelve years of age, in which he shall be punished with the imprisonment of term extended to two years or with fine or with both. Only in the special case of judgment, the imprisonment would be less than seven years.

FACTS OF THE CASE

It is the case where the de facto complaint is filed against the order of the acquittal passed by the Additional Sessions Judge acquitting the accused charged with section 376 of the Indian Penal Code.

In August 1978, the complainant filed a police report saying that the accused opposite party No. 2, a teacher at the nearby village school, used to visit her home and one day while the complainant’s parents were away from the house, told her he loved her and that he wanted to marry her. The complainant requested that the marriage be consummated. The person is accused of promising to do so and that he would personally secure her parents’ approval. Relying on this promise, she began living with the accused. This cohabitation lasted for a couple of months, during which time the accused would frequently drop by her home at odd hours and occasionally spend the night with her. She eventually became pregnant, and when she requested that the marriage take place as soon as possible, the accused suggested having the child aborted in exchange for agreeing to marry the complaint after the Panchayat elections. The accused eventually abandoned the commitment and ceased coming to the complainant’s house because she had refused to have an abortion. Debra P.S. Case No. 20 was started based on this accusation. The accused asserted his innocence and said that the accusation was brought against him by a political competitor in an effort to extort money from him; the accuser was a woman of easy virtue.

At the trial stage, it was to be seen whether the age of the consent was there and whether the consent was fraudulently obtained by section 90 of the Penal Code. The judge observed that even when there is a whole false promise is given yet the accused is not liable for the rape offence as the consent of intercourse is not given based on the misconception of fact. There is no concept of fake marriage. The accused did not come under the provision of section 376 of Indian Penal Code so the accused was acquitted. The petitioner has filed a revisional application and obtained the rule

ISSUE

1. Whether the girl was below the age of giving consent or not?
2. Whether the consent was obtained fraudulently or using any force or coercion and was hit by section 90 of the Indian Penal Code?

JUDGMENT

During the trial, two questions were asked about the age of the girl; whether the girl was below the age of consent for intercourse or not; and whether there was any fraud in obtaining the consent of the girl or whether the consent of the girl was acquired by the use of any force or coercion. Firstly, on the question of the age of the girl to give consent for this sexual intercourse, it was clear from the trial that the girl was over 16 years old at the time of the commission of the offence by the accused, as claimed by the accused. Regarding the other issue, whether the complainant’s alleged consent fell under the scope of Section 90 of the Penal Code, the learned Judge made the following observation: Given the circumstances of the case, even if it is assumed that a wholly false promise was made, the accused could not be held accountable for the crime of rape because the accused’s consent to the alleged intercourse was not given under a “misconception of fact” as defined by Section 90 of the Penal Code.

His exact finding is “In terms of the Code, a false promise is not a fact. If the accused had ravished the girl while pretending to be the girl’s husband or in a false marriage, the situation might have been different.” The learned Judge concluded that the act done by the accused did not fall under the purview of the Penal Code and, as a result, cleared him of the offence under Section 376 of the IPC. The failure to maintain the promise of marriage does not come under the misconception of fact under section 90 of the Indian Penal Code. In order to come up with the meaning of misconception, there must be proper evidence. This matter would be held differently if there is a belief made that they are already married. If a fully grown girl consents for sexual relationship and the sexual relationship continues until she becomes pregnant it is not an act induced in section 90 of the Penal Code that is the misconception of fact.  The revision application failed.

This article is written by Sree Lekshmi B J; third-year law student of Sastra University, Thanjavur.

INTRODUCTION

Water is indispensable to life. Human beings can survive for 3 weeks without food, but only three days without water. Moreover, there may be no food cultivation without water. Conceptually, therefore, the right to life, considered the foremost basic and fundamental of all rights, must include within it a right to water. The right to water evolved from initial references to water in numerous international treaties, including the Convention on the Elimination of All types of Discrimination against Women, 1979, the Convention on the Rights of the kid, 1990, and therefore the Convention on the Rights of Persons with Disabilities, 2008. Ultimately, in 2010, the international organization (“U.N.”) General Assembly adopted resolutions on the “Human Right to Water and Sanitation” and on the “Human Rights and Access to Safe beverage and Sanitation” emphasizing recognition of the “right to water”. We now have a separate right to water. In 2002, the U.N. Committee on Economic, Social, and Cultural Rights (“E.S.C.R”.) adopted General Comment 15 noting that “The right to water is indispensable for leading a life with human dignity”. The Committee also defined the core content of the “right to water” to incorporate “everyone’s right to sufficient, safe, acceptable and physically accessible and affordable water for private and domestic uses”.

BACKGROUND

Historically, Dalits have sought integration and respect within mainstream Hindu caste society which has been denied to them for hundreds of years, in accordance with the dominant development paradigm. On the opposite hand, Adivasis have sought development on their terms outside mainstream Indian society. As a result, Dalit articulation of the “right to water” seeks not only to secure state provisioning of water within the traditional vertical exercise of their rights against the state but also to make sure enforcement of access to it water provision through the horizontal application of the correct in legal code against upper castes that block such access. For Adivasis, however, articulation of the “right to water” is inextricably linked to their rights to land and forest, seen as a part of one indivisible ecosystem.

Apart from the judicial articulation of a generally applicable “right to water”, I also describe the articulation of this right on behalf of two marginalized groups. the primary group includes Dalits or Scheduled Castes that constitute 16% of India’s population, who have historically faced systematic discrimination within mainstream Hindu society supported their caste. Originating in ancient India, and transformed by medieval elites, and later by British colonial rule, the class structure in India was a system of conditions that consigned people in several castes to different hereditary occupations, positions, and ways of life. Dalits or untouchables were placed outside the societal hierarchy and were denied access to common sources like food and water. The other group includes Adivasis or indigenous peoples which includes 8.6% of India’s population, who are historically marginalized because they need to live largely in geographical isolation in hills and forests with distinct cultures outside the society.

The right to life is continuously expanded, which has the proper to possess a clean environment and also the right to health, and after your time court mentioned that it also includes the correct to water. after we analyze various judgments of the Indian court, we will find that they need not only considered the correct to urge water as a fundamental right, but the court has also mentioned that water should be social asset.

Right to water was added to the extended interpretation of the proper to life under article 21 of the Indian constitution within the judgment of the case of Peoples Union for Civil Liberties (PUCL) v. Union of India & Ors. W.P. (Civil) No. 196 / 2001. This judgment created a precedent that seeped all the way down to rock bottom levels of court.

The country of India hosts a large population that further creates a large demand for basic life necessities like water. However, this demand goes with major disappointment for people because of the severe scarcity of water. consistent with the 2017 UNICEF report, India’s two-thirds districts among the 718 districts, were reported to be under-supplied with water, with groundwater becoming scarcer a day

RECENT DEVELOPMENTS

WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974

Water (Prevention and Control of Pollution) Act, 1974 is the primary enacted by the parliament in relevance to the protection and preservation of the environment. The water act came into force to make sure the restoration of the water, where the domestic and industrial effluents pollute water with no precautionary measures. The Constitution of the Central Pollution Board and State Pollution control panel is empowered under the act to perform various functions like establishing the standard, research, and investigation of the bodies creating pollution to the water bodies. The awareness about promoting the cleanliness of water streams, well and rivers is also raised by this Act. And also, one every of the most purpose of building this act was to stop and control the pollution of water.

One of the provisions of this act provides that nobody can establish any industry which discharges sewages or trades effluents into the water bodies without the permission of the state board. But within the case of Province Pollution board II v. Prof. M. V. Nayudu it had been held by Supreme Court that Water (Prevention and Control of Pollution) Act, 1974 doesn’t provide an exemption to the state for exempting the establishment of personal body or polluting industries creating pollution to the water bodies.

PROVISIONS OF ENVIRONMENT (PROTECTION) ACT, 1986

Environment Protection Act has got force on19th of November 1986. The name environment protect act itself provides the most objective of the act as protection of the environment. This act provides power to the Central Government to require appropriate measures so as to shield and improve the environment.

INDIAN EASEMENT ACT, 1882

The Indian Easement Act came into force on the 1st day of July 1882. Under this Act, the word Easement is defined in Section 4. But normally term easement means “right to enjoyment”. The rights of Riparian owners are recognized under this Act. A riparian owner is the one who has his land nearby the river or a stream.

Even after various legislations are passed the river water in India are continuously polluted River Ganga despite being worshiped by almost a billion people of this country is included among the foremost polluted river of the identical, variant liters of chemical waste is disposed of in these waters by the industries including the pollutants like cyanide, zinc, copper, lead, cadmium, and mercury including sewage waters also which is that the biggest pollutant These pollutants are so poisonous that they not only kill fishes instantly but other animals also. When these poisonous pollutants are disposed of in water it reduces the standard of water and makes them useless for drinking.

In the case of M C Mehta vs. State of Orrisa and Ors, a writ petition was filed for shielding the health of thousands of individuals living within town Cuttack and therefore the other areas which were adjacent thereto, which were plagued by the pollution caused by disposition discharged into the river by a municipal committee of Cuttack and SCB Medical Collage Hospital, also the State Pollution Board in its report concluded that the water within the city wasn’t fit human consumption and even bathing, The Apex court ordered to require immediate steps to manage the present situation and a responsible municipal corporation was formulated by the court for effective management of pollutants within the city’s beverage.

The government also because the Boards established under the legislation should attend to those matters not just by providing fines to the individuals polluting water but through imprisonment.

The case of Vikash Bansal vs Delhi pollution control committee marks an exceptional judgment given by the supreme court because, during this case of Haryana Paneer Bhandar, an offender was imprisoned for a period of 1 year with 1 Lakh Rupees fine together with 2.5 lakhs Rupees to tend to the PM relief fund, but what must be noticed during this judgment is that this case isn’t associated with any criminal offense like rape, murder, robbery or assault whereas it had been a case associated with the environment that’s polluting the river of Yamuna.

These types of convictions are seen as very rare and in line with me, the court must make such convictions more frequently so as to safeguard the environment from degrading further.

CONSTITUTIONAL FRAMEWORK

PUBLIC INTEREST LITIGATION

Not only a private can approach through the provisions of the legislations associated with the Environment but also through filing a Public Interest Litigation Now, pollution of water is worried to a bigger public, and any dispute associated with water may be settled through filing a Public Interest Litigation. Public Interest Litigation is filed through Article 32 of the Constitution of India which provides about the proper Constitutional Remedies and thru Article 226 of the Constitution of India which provides about the ability of the court to issue certain writ Public Interest Litigation may be filed through Section 122 of the Code of Criminal Procedure which provides about common nuisance. Public Interest Litigation will be converted into writ and the other way around.

CASE DECISION

Right to induce clean water isn’t an enumerated right under the Constitution of India. This right was brought to light through various judicial pronouncements and has become an integral part of Article 21 of the Constitution of India. And also, in the case of Sachidanand Pandey v. State of West Bengal, the Supreme Court held that the court is guaranteed to bear in mind Article 21 which offers about Right to life and private liberty, and Article 48A which provides the basic duties and Article 51A. (g) which provides about the Directive Principles of State Policy whenever a case associated with environmental problem is brought before such court.

CENTRAL WATER COMMISSION

Central Water Commission was established to perform various functions including the initiation, coordination, and consultation of the authorities within the matter associated with the preservation, control, utilization, and distribution of water resources to the citizens of India. The central water commission is now part of the state of India. It makes sure the utilization of water resources appropriately so as to regulate floods, and droughts, maintain irrigation, and provide potable, etc.

In recent time, thanks to Covid-19, there has been large control on the pollution not only to the water bodies but also control of pollution, noise, pollution, etc. the govt. must take this as a chance to stop any more pollution of the water bodies by bringing various other legislation or simply by improving the provisions of the present legislation. The provisions of current legislation shall be made stricter which creates fear within the minds of individuals from further polluting the environment.

CONCLUSION

Water isn’t a personal asset and is the main essential ingredient for the survival of the people. It’s important to regulate pollution caused to the river water, streams, wells, etc. because India includes a total of only 4% of the world’s H2O, uses 80% of that merely for farming, and using polluted water for farming will adversely affect the health of people. The second most populated country within the world is additionally home to thousands of ethnic and tribal groups which survive on the character or jungle for his or her food and water including the little streams of water from major rivers, the presence of chemical pollutants are incredibly harmful moreover as deadly in some cases. And also, the right to induce clean water isn’t an enumerated right but could be a right enforced under Article 21 of the Constitution of India.

 Hence Right to induce a clean beverages is additionally considered a a fundamental right and no one can deprive of such a right. If this right is empty a person, the one that has been aggrieved of those rights contains a right to approach under different provisions provided under the varied legislations. Different reasonable protection must even be given to major rivers and their connecting tanneries because these pollutants are directly affecting the habitat prospering around these rivers.

This article is written by Ashutosh Banshwar, a student of School of Law, Sharda University.

CITATIONS

1950 AIR 124, 1950 SCR 594.

BENCH

• Justice Fazal Ali, Saiyid
• (CJ) Kania, Harilal
• Sastri, M. Patanjali
• Mahajan, Mehr Chand
• Das, Sudhi Ranjan
• Mukherjea, B.K.

JUDGEMENT GIVEN ON

26 May 1950

FACTS AND BACKGROUND OF THE CASE

Romesh Thappar was a publisher of a weekly magazine called Crossroads; certain articles were published in his magazine regarding the doubtful nature of public policies especially foreign policy. These articles created suspicion among the public about governmental policies leading to a communist movement rising in some regions of Madras forcing the state government to impose a ban on circulation of the magazine in areas where the communist movement was going on with enthusiasm.

LAWS INVOLVED

1. Madras Maintenance of Public Order Act, 1949 Section 9 (1-A): It allows the government to stop the circulation, selling, and distribution of any journal in any part of Madras to ensure ‘Public Safety’ or preserving ‘Public Order’.
2. Constitution of India Article 19 (1) (a): Provides freedom of speech and expression to citizens of India. Freedom of speech and expression gives one a right to speak and express their opinions and ideas about something through traditional media or social media.
3. Constitution of India Article 19 (2): Provides for the reasonable restrictions to freedom of speech and expression granted under Article 19 (1) (a). These restrictions include the sovereignty and integrity and security of the state and friendly relations with foreign states.
4. Constitution of India Article 13: Provides for the laws that may or may not be passed before the commencement of the Constitution of India if violates fundamental rights mentioned in Part 3 of the Indian Constitution must be declared null and void.
5. Constitution of India Article 32: Provides an Indian citizen right to approach Supreme Court if their fundamental right has been violated by any government authority. The article goes as ‘Heart & Soul of Indian Constitution’ due to its protective nature towards other fundamental rights specified in Part 3.  
6. Constitution of India Article 226: Provides High Courts the power to issue writs for enforcement of fundamental rights.

ISSUES

1. Whether the violation of the fundamental right can be dealt with by Supreme Court before State High Court?
2. Whether the order passed by the government under Madras Maintenance of Public Order Act, 1949 Section 9 (1-A) violate the freedom of Speech and Expression?
3. Whether the existence of Madras Maintenance of Public Order Act, 1949 Section 9 (1-A) was itself unconstitutional for it violates fundamental rights mentioned in Part 3 of the Indian Constitution?  

DECISION OF COURT

On the issue of whether the Supreme Court can be approached before the State High Court, the court believed that Article 32 gives power to Supreme Court to issue writs if any government authority violates fundamental rights provided in part 3 of the Indian Constitution, which in itself as a fundamental right that cannot be denied. Hence, the Supreme Court as the guardian of fundamental rights cannot refuse to entertain any petition for seeking against infringements of fundamental rights.

The order passed by the Madras government was declared unconstitutional as it violates the Freedom of Speech and Expression mentioned under Article 19 (1) (a) of the Indian Constitution. The ban imposed by the state government on the circulation of magazines prevents the freedom to propagate ideas, opinions, and viewpoints regarding any issue that concerns the general public.

The Madras Maintenance of Public Order Act, 1949 Section 9 (1-A) was made with the interest of issues like ‘Public Safety’ and ‘Public Order’. Here, ‘Public Safety’ means the security of health of the general public from dangers that vary according to the situation. ‘Public Order’ means to deal with events that may lead to disruption of peace and tranquility of the province. Regarding the question of the unconstitutionality of the law, the Supreme Court invokes the ‘Doctrine of Severability’ to ensure if severing any law defeats the entire purpose of legislation or not. Thereby, declared that the said order contradicts the fundamental right given under Article 19 (1) (a) hence ultra vires. However, Court is of the view that entire legislation cannot be considered void as Article 13 of the Indian Constitution states that the law can be declared null and void only to the extent of its inconsistency with fundamental rights.

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

“I think those who have a terminal illness and are in great pain should have the right to
choose to end their own life, and those that help them should be free from prosecution.”

Stephen Hawking

INTRODUCTION

While survival is unquestionably important, life may also be unpleasant and terrifying at times under certain circumstances. Euthanasia is nothing more than permission or license given to a medical provider to end the life of a person. Though the Constitution of India allows a feasible way of living a healthy and dignified life, it does not allow for voluntary death. The practice of euthanasia raises complex questions of legal and execution conformity in countries all over the world. Every individual wishes to live and enjoy life till the end of his or her days. However, there are certain instances when a man wants to end his life on his own volition, no matter how strange it is to end one’s life in such an unconventional way.

The phrases ‘euthanasia‘ and ‘thanatos’ are derived from the Greek words ‘eu’ and ‘thanatos,’ which mean ‘happy death’ or ‘easy death,’ respectively. When a person takes his or her own life, we call it “suicide,” but when others take a person’s life at the desire of the dead, we call it “euthanasia” or “mercy killing”. It is the physician’s painless end of the life of an acutely suffering patient at the patient’s request¹.

As a corollary, euthanasia is identified with those who are suffering from a fatal disease or incapacitation and refuse to live the remainder of their lives in misery and suffering. A terminally sick or disabled individual should be able to choose whether or not to live. Euthanasia is a divisive topic that touches on a society’s ethics, integrity, and principles.

TYPES OF EUTHANASIA

Euthanasia is usually performed when a person wants and requests relief; however, When a person is unable to make such a request, euthanasia is employed as a last resort.

On the basis of informed consent:

1. Voluntary Euthanasia
2. Non-Voluntary Euthanasia
3. Involuntary Euthanasia

On the basis of its manner:

1. Active Euthanasia
2. Passive Euthanasia

● Voluntary Euthanasia: Euthanasia is deemed voluntary when it is carried out with the patient’s expressed wish and agreement. The ability of the terminally ill patient to choose whether or not to end his or her life, a choice that serves his or her best interests as well as the interests of others, is at the heart of voluntary euthanasia. In this circumstance, it can be demonstrated that the permission given should be free of any sense of obligation, i.e., the decision to utilize Euthanasia was an example of unconstrained self-determination. This is the most widely accepted form of euthanasia on a global scale.

● Involuntary Euthanasia: Involuntary euthanasia is euthanasia that occurs against a person’s will and is frequently seen as murder. As a result, involuntary euthanasia happens when the patient has refused to consent to the surgery and is an unwilling participant. During World War II, Nazi Germany carried out similar executions in gas chambers involving physically disabled or mentally handicapped persons. It appears to be immoral and brutal.

● Non-Voluntary Euthanasia: It refers to the death of someone who is not psychologically capable of making an informed death request, such as a comatose patient. The patient has not left a living will or provided any prior directives in non-voluntary euthanasia because he may not have had the opportunity to do so or may not have foreseen any such catastrophe or scenario. Family members are frequently the ones who make the choice in circumstances of non-voluntary euthanasia. This includes cases where a person is in a coma/ too young/ absent-minded/ mentally challenged/ severely brain-damaged.

● Active Euthanasia: The act of intentionally reducing one’s life is known as ‘active’ Euthanasia. Active Euthanasia is the practice of putting people to death without suffering for compassionate reasons, such as when a doctor gives a patient a deadly amount of medicine. In this instance, a person cannot inflict his own death and must rely on the assistance of someone else to administer a lethal prescription. Active euthanasia is banned in India and is a crime under sec. 302 of Indian Penal ode, 1860 or at the very least section 304 of the Indian Penal Code, 1860.

● Passive Euthanasia: Postponing medical care in order to prolong life, such as withholding antibiotics when a patient is likely to die if they are not provided, or removing the heart-lung machine from a coma patient, are examples of passive euthanasia. Passive Euthanasia is the purposeful absence of a life-prolonging act. It entails failing to take action to avoid death, such as when a doctor refuses to use a device that would keep a terminally sick patient or a patient in a persistent vegetative condition alive. In India, passive euthanasia is the sole legal manner to administer euthanasia. The physicians are not intentionally murdering somebody in “passive euthanasia,” they are just not rescuing him.

JUDICIAL VIEW OF EUTHANASIA

The subject of whether or not to allow a person to die has been debated by Indian courts on several occasions. State v Sanjay Kumar² was the first case in which such an issue was raised before an Indian court. The Indian Penal Code, 1860, Section 309, is outdated and unfit for Indian society.

In Maruti S. Dubal v State of Maharashtra³, the Bombay High Court found Section 309 to be unconstitutional because it violated Article 21 of the Indian Constitution’s right to life, whereas the Andhra Pradesh High Court found Section 309 to be constitutionally valid in Chhena Jagadesswer v State of Andhra Pradesh⁴. The Bombay High Court observed in Naresh Marotrao Sakhre’s⁵ case that suicide is, by its very nature, an act of self-killing or self-destruction, an act of ending one’s own life without the help or support of any other human agent. On the other hand, euthanasia, often known as mercy killing, refers to and implies the use of another human agency to end a person’s life. As a result, mercy killing is not the same as suicide. Both legally and factually, the two notions are separate. Whatever the circumstances, euthanasia or mercy killing is nothing more than homicide.

The Supreme Court declared Provision 309 of the Indian Penal Code to be legally legitimate in Gian Kaur v. the State of Punjab⁶, however in the current situation, even though this section is constitutional, it is time for the Indian government to repeal it because it is outdated.

196^th REPORT OF LAW COMMISSION

The Law Commission of India’s 196th report went into great detail on the subject. The main question before the Law Commission was whether or not terminally sick individuals should be denied or denied medical treatment (including artificial nourishment and hydration).

The Law Commission addressed a number of issues, including who are competent and incompetent patients, what constitutes an informed decision, what constitutes a patient’s best interests, and whether patients, their relatives, or doctors can petition a court of law for a declaration that a doctor’s act or omission, or a proposed act or omission, is lawful, and, if so, whether such a decision will be binding on the parties and doctors in future civil and criminal proceedings. The Law Commission suggested enacting legislation to safeguard terminally ill individuals who refuse medical care, such as artificial nourishment and hydration.

The Law Commission further stated that, while medical practitioners will contact the patients’ parents or close relatives, it is the doctor’s right to make a clinical choice based on professional medical opinion and the doctor’s decision should be based on the Medical Council of India’s norms. The treating physician was not given the option of selecting an expert of his own choosing.

CONCLUSION

Euthanasia is an intensely stressful and sensitive topic that sometimes leads to disagreements and misconceptions. Given its wide use in the media and scholarly research, it lacks a consistent set of ideas and meanings. Euthanasia dialogues are frequently ill-informed and ineffective, resulting in more frustration than answers. The debate over good death is an existential, emotionally charged, and ethically controversial discourse that will almost certainly continue to be a severe social and legal burden.

The crux of the problem is that individual autonomy and rights must be fostered in order for an individual to make decisions about his or her own life and death, but the right to life must be vigorously safeguarded. Suicide has become criminal in general as a result of the Gian Kaur case, but euthanasia has not. In Aruna Ramchandra Shanbaug v. Union of India, our Supreme Court has recognized passive euthanasia, stating that while passive euthanasia is admissible under the law in rare situations, active euthanasia is not. When legislation on the subject is drafted to avoid euthanasia malpractices and misuse, the suggestions made in the Law Commission of India’s Reports and the directions offered in the Aruna case must be taken into account. Furthermore, if the aforementioned proposals are adopted, the risks of euthanasia being misused would be considerably decreased.

Aside from religious and moral considerations, the ideas of life and death have been altered as a result of the expansion and development of science and technology. Medical science has advanced to the point that it is now possible to prolong both life and death. This knowledge makes it possible to prevent death in those who are in excruciating agony to a substantial extent.

CITATIONS:

1. Brody Baruch, Life and Death Decision Making, NewYork: Oxford University Press, 1988.
2. 1985 Cr.L.J.931
3. 1987 Cr.L.J.743
4. 1988 Cr.L.J.549
5. Naresh Marotrao Sakhre v. UoI; 1995 Cr.L.J.95 (Bomb)
6. 1996(2) SCC 648; AIR 1996 SC 946

This article is written by Sanskar Garg of the School of Law, Devi Ahilya University, Indore.

Case Number

CRL.A. 157/2013

Equivalent Citation

247 (2018) DLT 31

Bench

Justice S Muralidhar, Justice IS Mehta 

Decided On

November 30, 2017

Relevant Act/Section

• Code of Criminal Procedure, 1973
• The Indian Electricity Act, 1910
• The Indian Penal code
• The Companies Act, 1956

Brief Facts and Procedural History

An exhaustive judgment given on September 15, 2016, allowed the allure. Notwithstanding, on that date, the Court gave a different choice featuring three worries that emerged in a bigger setting and selected Prof. (Dr.) G.S. Bajpai, Professor of Criminology and Criminal Justice and Registrar, National Law University, Delhi, as amicus curiae to give guidance.

Issues before the Court

• Is the substantive law and procedure relating to the default in payment of a fine?
• Whether the existing law on suspension of sentence under Section 389 CrPC?
• Whether there is any provision that may enable the Court to suspend the order of conviction as normally what is suspended is the execution of the sentence?

Decision of the Court:

The Supreme Court communicated in Palaniappa Gounder v. State of Tamil Nadu¹ that “the fine discipline ought not to be pointlessly lavish”.

“However, there is the capacity to integrate a sentence of death or life imprisonment with a sentence of fine,” it was added. “That power should be polished with caution, considering that the life sentence is an outrageous discipline to force, and adding a fine to that grave discipline is not completely resolved to fill any accommodating need.”.”

The Supreme Court reaffirmed on account of Shantilal v. the State of M.P. that there was a total abuse of the arrangement of frameworks in Sections 63 to 70 IPC, causing legal to notice the instance of Shahejadkhan Mahebubkhan Pathan v. the State of Gujarat, where the Supreme Court totally abused the arrangement of frameworks in Sections 63 to 70 IPC.

Nonetheless, detainment for non-installment of fines is in another equilibrium. In the place where such a sentence is implemented, an individual is supposed to be detained in light of the fact that the person can’t pay the fine or won’t pay the fine. We are of the assessment that it is the occupant of the Court to keep an assessment of the case, the conditions under which it is held, the area of the case, the litigant, and other significant contemplations, for instance, the monetary conditions of the respondent in regard of and how much the offense prior to requesting that the culprit endure detainment when the individual in question is fined. The arrangements of Sections 63 to 70 of the IPC specify that the punishment rate ought not to be brutal or nonsensical. We additionally stress that in the case of a basic term of detainment, outlandish fines ought not to be forced by some other means than uncommon offenses. “

Clearly, no preparation is honored with use and purified in time that can’t be permitted to win in a circumstance where it attempts to cause disgrace. Each activity of the Court should be trailed by its governmental policy regarding minorities in society because of authentic worries about uniformity. Preparing not to give bail to an individual condemned to life detainment was going on in the High Courts and in this Court on the premise that assuming an individual is considered fit for preliminary and condemned to life detainment, the person ought not to be delivered. , as long as his endless sentence can be saved, yet the fundamental reason for this preparing was that the enticement of such an individual would be disposed of throughout some undefined time frame, so it was expected that he, at last, appeared to be dependable, he would have no need to endlessly remain in jail. The thought of this preparation may not have any significant bearing in the event that the Court isn’t in that frame of mind of interest for five or six years. Without a doubt, it would be a wrongdoing to compare and save an individual from jail for a time of five or six years for wrongdoing that at last seems to have not been carried out. When could the Court at any point pay him for his apparently outrageous captures? It would be fair regardless for the Court to tell the person: “We have admitted your enchantment as we suspect you are at legitimate fault for your appearance, yet tragically we have not had the potential chance to hear your temptation for a long time and, subsequently, up to this point. We hear your enticement, you ought to remain in jail, regardless of the way that you are straightforward? “the adjudicator could never have been overwhelmed by regret while eliminating such an individual in the wake of hearing the enticement? Could it not be an assault on his feeling of equity? in the past it ought to be reconsidered for quite a while as this Court isn’t in that frame of mind of hearing the temptation of the denounced as soon as possible, the Court ought to, except if there is valid justification to make a move regardless, delivering the indicted individual in situations where exceptional leave is taken into account the respondent to apply for conviction and sentence. “

Section 389 (1) states that in the repercussions of any allure against a respondent, the Court of Appeal may because it must be recorded as a held duplicate, demand that the sentence or allure be suspended in like manner, guaranteeing that he had the power, to be delivered on bail, or on his bond. This proviso acquaints the non-select power with suspending the condemning and award bail and notwithstanding suspending the activity of the basic allure.

This issue was completely inspected by a three-judge bench of this Court in Rama Narang v. Ramesh Narang and Ors.²

The legal position, appropriately, is clear that the Court of Appeal may suspend or grant an application for sentencing. However, the person wishing to remain guilty must clearly state the consideration of the Court reversing the consequences of his or her conviction. Unless the Court’s decision is based on the possible consequences of a conviction, the convicted person will not be able to apply for conviction. In addition, the reward for remaining guilty can be converted to extraordinary cases depending on the shocking facts of the case. “

The legal status of the Supreme Court under Section 389 of the CrPC is very clear, it is enough for this Court to repeat it.

There is a real need, right, for a formal (proper) administration to provide relief and rehabilitation for the injured through extrajudicial executions and arrests. Whether this should be a law that governs everything or a system that specifically addresses the needs of the survivor, and those who are unjustly imprisoned, including the family and guardians of the detainee, or these should be governed by different rules or arrangements for discussion, consideration, and consultation with The purpose of the article is to pay for those who are unjustly detained, questions about the circumstances and circumstances in which such assistance can be obtained, in what structure and at what stage and are matters for consideration. This is the best work left in the main case of a body tasked with informing government officials of control measures expected to fill an undeniable hole.

The Court, appropriately, compels the Indian Law Commission to attempt a thorough investigation of the matter referred to in paragraphs 11 to 16 of this application and to make its recommendation to the Government of India.

Conclusion

In this case, the Delhi High Court expressed profound concern over the plight of innocent people who have been unfairly convicted and imprisoned for crimes they did not commit. The Court emphasized the urgent need for a legislative framework to provide relief and rehabilitation to victims of wrongful prosecution and incarceration and urged the Law Commission to conduct a thorough review of the aforementioned issues and submit recommendations to the Indian government.

In the current state of the criminal justice system in the country, an adequate reaction from the state to victims of a miscarriage of justice resulting in erroneous prosecutions is absent. There is also no statutory or regulatory framework detailing the state’s approach to the problem.

According to the solicitation made by the court, the Law Commission of India introduced a report to the Government of India in August 2018 named “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies.” In this paper, the point is analyzed with regard to the Indian law enforcement framework, and the expression “wrongful prosecution” is suggested as the limit for a miscarriage of justice, rather than “wrongful conviction” and “wrongful imprisonment.” ‘Wrongful prosecution’ alludes to circumstances in which the blamed isn’t blameworthy for the wrongdoing, however, the police and additionally prosecution are occupied with bad behavior in exploring or potentially indicting the individual.

It would cover both cases in which the person served time in jail and those in which he did not; as well as those in which the accused was found not guilty by the trial court or was convicted by one or more courts but was ultimately found not guilty by the Higher Court. The report provides an outline of the various legal remedies and evaluates their shortcomings (also noted by the High Court in the aforementioned Order).

As a result, the Commission recommends enactment of a specific legal provision for wrongful prosecution redress – to provide monetary and non-monetary compensation to victims of wrongful prosecution within a statutory framework (such as counseling, mental health services, vocational / employment skills development, and so on). The Report lays out the core principles of the proposed framework, including defining “wrongful prosecution,” or cases in which a claim for compensation can be filed, naming a Special Court to hear these claims, the nature of the proceedings – timelines for deciding the claim, etc., financial and other factors to be considered in determining compensation, provisions for interim compensation in certain cases, and removing disqualification due to wrongful prosecution.

Hence, a legal (ideally legislative) framework for giving relief and rehabilitation to victims of wrongful prosecution and incarceration is urgently needed. In addition to the topic of paying persons who have been unfairly imprisoned, consideration should be given to the situations and conditions under which such relief would be available, as well as the form and stage at which such relief would be provided.

Citations:

1. (1977) 2 SCC 634
2. (1995) 2 SCC 513

This case analysis is done by Arryan Mohanty, a 2nd Year Student student of Symbiosis Law School.

INTRODUCTION

India is one of the largest democracies in the world and in this country we follow the concept of the universal adult franchise which means a person above 18 years of age has a right to vote irrespective of their caste, colour, creed, religion, or gender. We elect our representative by giving a vote but what if we have to choose our representative among the persons with severe criminal records. In India, nowadays criminalization of politics becomes very common which means a person participating in an election is having a criminal record. This is the biggest irony out here where the ‘lawbreakers become the lawmakers’. This disrupts the roots of democracy where it is difficult to become even a peon with criminal records. On the other hand, people become ministers and represent the country with criminal records.

The number of politicians with criminal records is increasing day by day, which is a serious concern for the public. The data was provided by the Association of Democratic reform [ADR] reports in which it was stated that the elected Lok Sabha candidates in the year 2019 out of the 43% had criminal charges against them which is a nearly 26% increase concerning the elections of 2014.

The report by the ADR in collaboration with the national eye watch in which it was published that in the year 2009, 543 members were elected for Lok Sabha elections out of which 162 (30%) of them had criminal charges and 76 i.e 14% had severe criminal charges against them like murder, rape, kidnapping, etc. Also, in the 2014 Lok Sabha elections, 539 candidates were elected out of which 233 (43%) had criminal charges against them and 159 i.e 29% had serious criminal charges against them.

LAWS IN INDIA AGAINST THE CRIMINALISATION OF POLITICS

Some articles in our Indian constitution are against the criminalization of politics and those articles are

• ARTICLE 327
  Article 327 of the Indian constitution gives the right to the parliament to make provisions on the subject matter related to elections for either house of the parliament or for the legislature of a state._¹
• ARTICLE 102
  Article 102 of the Indian constitution deals with the disqualification of members from the elections of either house of the parliament on certain grounds which are mentioned under this article.²
• ARTICLE 191
  Article 191 of the Indian constitution also deals with the disqualification of members from the election but from the legislative assembly or legislative council of the state if they fall under the category mentioned under the article.³

EFFECTS OF CRIMINALISATION OF POLITICS

• AGAINST THE FREE AND FAIR ELECTIONS PRINCIPLE
  The candidates often use their muscle and money power which means they have the ability to finance their own elections and largely due to public image they try to gain votes. This demeans the principle of free and fair election as it limits the choice of electing a deserving candidate.
• AFFECTING GOOD GOVERNANCE
  The main issue is that lawbreakers become lawmakers, which undermines the democratic process’ ability to offer decent government. The structure of India’s state institutions and the quality of its elected representatives are reflected in these undesirable democratic tendencies.
• AFFECTING UPRIGHTNESS AMONG PUBLIC SERVANTS
  Corruption caused during elections due to the circulation of money during and after elections causes disruption in the working of public servants and thus, results in increasing corruption.
• CAUSES SOCIAL DISHARMONY
  Electing representatives who have a criminal record creates a bad precedent for the youth and also causes social disharmony and violence in society. This demeans the meaning of democracy in the eyes of the general public.

REASONS FOR CRIMINALISATION OF POLITICS

• LACK OF POLITICAL WILL
  Political parties don’t show any will or interest in curbing the criminalization of politics. Until now, efforts made towards this issue were made by the supreme court and the election commission of India. However, parliament must revise the Representation of the People (RPA) Act 1951⁴, which governs the disqualification of candidates who have been charged with serious crimes and have been found guilty in court.
• LACK OF ENFORCEMENT
  Making strict laws and regulations or passing judgment will not affect much until and unless implemented properly.
• NARROW SELF INTEREST
  Sometimes general public may focus on caste or religion criteria for casting vote and they may not be interested in checking the history or criminal record of the candidate. So, publishing criminal reports of the candidates is not enough to curb the criminalization of politics.
• USE OF MUSCLE AND MONEY POWER
  Candidates gain votes due to their muscle power and money power, despite having serious criminal records they use their identity and finance their election to gain votes. Furthermore, when all contesting candidates have criminal backgrounds, voters are sometimes left with no options.

CASE LAWS

UNION OF INDIA VS ASSOCIATION FOR DEMOCRATIC REFORMS AND ANR.
The association for democratic reforms filed a petition in the Delhi high court for the recommendations on how to make elections fairer, and transparent. The law commission produced some recommendations which are that the candidates should disclose their criminal history, educational qualifications, financial details, and other personal information on their websites. After this, the union of India challenged the petition in the supreme court of India that the high court voters did not have a right to such information. The court held that the right to know is a derived right from the right to freedom of expression and speech. Because such rights include the right to have opinions and collect information in order to be appropriately educated in formulating and distributing those opinions throughout the election process, the public has a right to know about candidates running for election. The Court elaborated on this argument by stating that a good democracy strives for an “aware citizenry,” and that any kind of misinformation or lack of information will result in a “uniformed citizenry,” rendering democracy a charade.⁵

PEOPLE’S UNION OF CIVIL LIBERTIES [PUCL] V. UNION OF INDIA
The people’s union of civil liberties [PUCL] challenged the validity of section 338 of the representation of people’s act, 1951 which says that a candidate is not allowed to disclose any personal information. The PUCL contended that it was a violation of Article 19(1)(a). the apex court held that the candidates should provide information about themselves to the voters. The basic information provided by the candidates can affect the decision of the voters. Furthermore, freedom of expression encompasses not just verbal and written communication but also voting. The expression of opinion through the final act of casting a ballot is part of the fundamental right of freedom of speech and expression under Article 19(1), even though the right to vote is not a fundamental right in and of itself. The apex court concluded that section 33B of the representation of people act, 1951 was unconstitutional.⁶

LILY THOMAS VS UNION OF INDIA
In this case, a writ petition was filed by the Lily Thomas and an advocate Satya Narain Shukla before the apex court for the purpose of challenging section 8(4) of the Representation of the people’s act which safeguards the convicted politicians from any kind of election disqualification based on pending appeals against their conviction in the appellate court. This petition was not allowed for 9 years and later, in July 2013 the supreme court finally passed a verdict in which it was held that the MP and MLA whether they are elected or not elected would be disqualified if they have criminal allegations against them by the trial court and the saving clause under section 8(4) will not be applicable.⁷

PUBLIC INTEREST FOUNDATION V. UNION OF INDIA
In this case, in the year 2011, the petition was filed by the BJP leader Ashwini Upadhyay and the NGO public interest foundation before the apex court to seek directions regarding the criminalization of politics and debarring them to contesting elections. The issue was whether the court can put any restriction on membership of parliament beyond article 102(a) to (d) and parliament’s legislation under Article 102(e). the court held that the debarring candidate to contest the election solely on the basis that they have a criminal record is wrong. The court directed them to fill out the form circulated by the election commission and the form must contain all the information. The candidate has to notify the party regarding criminal proceedings if he or she has against them while buying a ticket of a specific party. The political party has to update their website and to put regarding any criminal proceedings are pending against them and also make them publish in the newspapers and also to make huge publicity on electronic media.⁸

RECENT DECISION

The supreme court of India passed a judgment related to the criminalization of politics recently in February 2020 in which it was held that the political party has to update their websites regarding criminal history against the candidates and such information has to be published in even local and national newspaper. In October 2020, Bihar was the first election that followed the supreme court guidelines. This was done to preserve the purity of elections in the country and to provide voters with a fair choice to choose.

CONCLUSION

Till today what has been done regarding curbing the criminalization of politics has been done by the supreme court and the election commission. The parliament has to show some interest to make changes in the representation of people’s acts. The alone judiciary will not be enough effective in dealing with this issue.

In conclusion, the information regarding criminal history, financial authority, and educational qualifications of the candidates should be made available to the voters. So, that they can make the right choice and the elections conducted could be fair and transparent and the voters were given fair choice to choose candidates from them. Though information should be provided to the voters and it is important also but there should be a thin line between information provided to the voters and the rights of the candidates.

References:

1. The Indian constitution, 1950, art.327
2. The Indian constitution, 1950, art. 102
3. The Indian constitution, 1950, art. 191
4. The Representation of people act, 1951.
5. Union of India v. Association for democratic reforms and anr, (2002) 5 SCC 294.
6. People’s union of civil liberties V. Union of India, [WP (C) NO. 196/2001]
7. Lily Thomas v. Union of India, [WP (C) NO. 231/2005]
8. Public interest foundation V. Union of India, [WP (C) NO. 536 OF 2011]

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