This article has been written by Shelal Lodhi Rajput, student of Symbiosis Law School, Pune
The development in recent time changed the image of India on global level and also the Indian Judiciary has pronounced highly progressive judgements by recognizing the rights of individuals. Here a conspectus of the Five most important cases is presented below:
Development : Juvenile Justice Act, 2000 amended. Case Name: Mukesh & Anr. Versus State for NCT of Delhi & Ors. No one can even forgot that worst night for our nation of December 16,2012. One another chilly December night in Delhi, Nirbhaya ( Pseudonym give by media “fearless” real name: Jyoti Singh) and her friend returning from a movie theatre, they were waiting for bus. The gruesome and brutal incident took inside that bus. The 2012 Delhi gang rape case involved a rape and fatal assault which is beyond human imagination, Nirbhaya is not only raped but tortured in an inhuman way by 6 monsters out of them one was a 17year old juvenile, a brutal case of gang rape and murder shock the nation. When they got arrested, the 5 adult men got 10 years of prison and one of them found dead in the prison itself during the course of a trial. The juvenile aged 17 was convicted of rape and murder and given the maximum sentence of three years imprisonment in a reform facility. Finally the four convicts were awarded death penalty and hanged till death in this year and finally after 7 years Nirbhaya get justice on March 20 when all four convicts hanged in Tihar jail at 5:30 AM .
The incident shook the nation’s conscience and sparked massive protests and subsequently developed many new developments, the center and Delhi Government prompted a number steps to ensure safety of women, curb such incidents and facilitates quick disposal of cases, so the justice is not hindered in anyway and also proper punishments’ will be given on the same line it led to amendment in Juvenile Justice Act, 2000 ( the age bar to be tried as an adult was lowered from 18 to 16 years).
2. ADULTERY CASE
Development: Section 497 of IPC held unconstitutional. Case Name: Joseph Shine v. Union of India In the case Joseph Shine v. Union of India the petitioner had challenged the constitutional validity of Section 497 of the Indian Penal Code and Section 198(2) of the Criminal Procedure Code. In a landmark decision by Apex court on September 28,2018 , court struck down Section 497 of IPC as unconstitutional, which punishes adultery. “It is time to say husband is not the master,” said the chief justice, Dipak Misra. He quoted John Stuart Mill: “Legal subordination of one sex over another is wrong in itself.” The court remarked the section as “manifestly arbitrary” also remarked that the husband is not the master of wife and that the legal sovereignty of one sex over other is wrong. Adultery is no longer a crime but if it leads to someone committing suicide, the act will be treated as a crime- abetment to suicide. Sec 497 provides for the offence of adultery and renders criminal liability on husband who has sexual intercourse with the wife of another man, without the consent or connivance of that man (husband). The law of adultery in its present form does not punish a women or wife under the provision of adultery. Thus, the right to prosecute the adulterer is restricted to the husband of the adulteress but not to the wife of adulterer.
The Apex court held Adultery is no longer a crime and struck down Sec 497 , but it will be continue to be grounds for divorce.
3.TRIPLE TALAQ CASE
Development : Muslim law practice of Triple Talaq held unconstitutional . Case Name: Shayara Bano versus Union of India and Ors. In yet another spree of historical judgements, the supreme court declared the Muslim law practice of Triple Talaq, or unilateral divorce to be unconstitutional, striking it down by a 3:2 majority. The majority decision is by Justice Rohinton Nariman and Justice U.U. Lalit while there is concurring decision by Justice Kurian Joseph and the dissenting opinion by CJI J.S. Khehar and Justice Abdul Nazeer. The ruling unequivocally established that this practice runs in defiance of the principles of equality, international human rights law and also asserted that “Triple Talaq is not a basic and integral part of Islam”. The Court clarified that “…an action that is arbitrary, must necessarily involve negation of equality” and determined, as triple talaq provides that “…the marital tie can be broken capriciously without any attempt at reconciliation so as to save it”, this arbitrariness violates Article 14. Also, it was held that triple talaq was not to be protected under Article 25 of the Indian Constitution as it is not an essential element of the religion. In fact, the Hanafi school of Muslims considers this as a sinful practice. The majority decision restored the trust that the common people possesses for the institution of Judiciary, the decision proved that any philosophy or practice by religion cannot supersede the democratic notions of equality, liberty etc. The court finally brought justice to many women’s who have victims of this practice. After the pronouncement of this decision the practice is held unconstitutional and made such incident impossible which was happened with Shayara Bano. No Muslim husband now abandons his wife by just a unilateral talaq or by just pronouncing the word “talaq” three times.
The court while delivering the judgement ensured that the ideas of gender equality is not a mere theoretical ideology but also made applicable in practical sense. But the decision of minority opinion worries the nation and the part of that minority decision is CJI. Finally, the battle of Muslim women comes to end as apex court held triple talaq unconstitutional.
4. HOMOSEXUALITY CASE
Development: Sec 377 of IPC partially held unconstitutional. Case Name: Navtej Singh Johar v. Union of India In a historical judgement, the Five- judge constitutional bench of Apex court on September 06,2018 struck down partially the Sec 377 of IPC which criminalized ‘Carnal intercourse against the order of nature’, the Apex court said that Section 377 would continue to be in force in cases of unnatural sex with animals and children, any kind of sexual activity with animals and children remains a penal offence . The central issue on which the bench called upon was the constitutional validity of Section 377 of IPC, it was titled “Unnatural offences”. The court overruled its previous decision in Suresh Koushal v. Naz Foundation that upheld the constitutionality of Section 377.
The 160 year old law banning sex “against the order of nature” amounted to discrimination on the basis of sexual orientation and was unconstitutional, also the ratio behind the decision is that the section is violative of Fundamental right of Right to Privacy under Article 21, which was held by Supreme court in Justice K.S Puttuswamy case, the bench said that sexual orientation forms one’s part of right to privacy. “Criminalizing carnal intercourse under section 377 Indian penal code is irrational, indefensible and manifestly arbitrary,” said the chief justice, Dipak Misra, in his decision. The judgement settles the long debate on the status of homosexuality in India and comes as victory of homosexuals. The court reiterated that the majoritarian views and popular morality cannot dictate constitutional rights.
The decision is historic in nature and holds an extremely high precedential values as it has been decided by five judge constitutional bench of Apex court, also it is binding precedent for all other courts of nation. The decision shows us the progressive and modern approach of judiciary and changing of world scenarios.
5. CJI’s OFFICE UNDER RTI ACT
Development: The office of CJI comes under the purview of RTI. Case Name: Central Public Information Officer, Supreme Court v Subhash Chandra Agarwal . On November 13, 2019 the Supreme court answered the much awaited question about RTI that is the office of Chief Justice of India comes under the purview of RTI. To decide on this issue a constitutional bench of five judges called upon led by CJI (Retd.) Ranjan Gogoi comprised of Justice Sanjiv Khanna, Justice Deepak Gupta, Justice DY Chandrachud and Justice NV Ramana. The decision of bench was penned by 3:2 majority as two judges gave Justice DY Chandrachud and NV Ramana has given separate judgement. The decision held that the CJI comes under the purview of RTI Act and is a public authority under Section 2(h) of the Act. The step is taken as to boost more transparency in judiciary. Justice Chandrachud said that judiciary cannot function in total insulation as judges enjoy constitutional post and discharge public duty, in his separate judgement. Justice Ramana, concurred with opinion of Justice Khanna, said there should be balancing formula for Right to Privacy and Right to transparency and independence of judiciary should be protected from breach. The Supreme court has taken this decision under Article 124 of the constitution and the Supreme court has upheld the decision given by the Delhi high court in 2010. However, the SC has also issued some directives, as office secrecy will remain intact during RTI. The CJI-led bench, while completing the hearing, said that no one wants a ‘system of darkness’, but the judiciary cannot be destroyed in the name of transparency.
The above here are the five landmark and historical cases which bring change in Indian laws in the recent judgements and development by Apex court and government. In recent we observed some good as well as some disappointing judgements from the end of Apex court. Also while in some concurring opinion we see other views of judges but in some cases its a thing to worry as in case of Triple talaq judgment the dissenting opinion by CJI himself with his colleague make us to think once again on some aspects of rulings but we have seen the independency of thoughts of judiciary as in the case of homosexuality. Also, the judiciary tried to bring more transparency as far as possible as pitched that judiciary is transparent as well as now accountable for their act as the decision of Apex court which held that office of CJI comes under the ambit of RTI
1]https://www.indialegallive.com/analysis/cji-office-under-rti-act-a-major-boost-to-transparency-77620 2] https://www.livemint.com/Politics/X4lDGjqQm6bto8isWPQbEN/The-most-influential-judgements-in-Supreme-Courts-history.html 3]https://www.theguardian.com/world/2018/sep/06/indian-supreme-court-decriminalises-homosexuality 4] https://www.jagranjosh.com/general-knowledge/landmark-verdicts-delivered-by-sc-1577788201-1