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Bi-Monthly Legal News[Supreme Court]

 National Updates

National Judgments/ Orders

Supreme Court

  • Abortion in the 24th week of pregnancy permitted

    In a case where the petitioner apprehended danger to her life after recognizing that her fetus was diagnosed with ‘anencephaly’, which leaves foetal skull bones unformed, the Supreme Court relied on the report of a medical board to warrant the conclusion that continuing the pregnancy posed a risk to the life of the pregnant woman. Although the pregnancy was into its 24th week, the bench decreed that the woman was allowed to terminate her pregnancy in light of these circumstances. The decision is significant as it places value on the autonomy of women to make decisions about their reproductive health, instead of the moral argument of preserving life regardless of consequences.

    Case citation: Meera Santosh Pal v. Union of India, 2017 SCC OnLine SC 39

  • Regulation of advertisement relating to sex-selection directed

    In ongoing hearings before the Supreme Court pursuant to the discussion on sex-selection, the Union government had submitted that despite auto-blocking a list of words, one could still avail of information pertaining to gender-tests on the internet. The respondent companies suggested that such searches ought to be protected under the right to freely access information. However, the Supreme Court perceived the issue as a choice between enjoying the right to freely access information and being a catalyst in depleting the sex-ratio in the country. Pending further deliberations, the Court passed interim orders requiring the constitution of a nodal agency to take cognizance of any reports of anything in the nature of advertisement of or having any impact on identification of gender.

    Citation: Sabu Mathey George vs Union Of India (2017 ) 2 SCC 514

  • Governments directed to enforce provisions of SC/ST Act strictly

    Responding to a petition by voluntary organizations lamenting the non-implementation of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the Supreme Court took cognizance of the fact that no special officers, nodal officers or protection cells had as yet been set up for the protection of members of the SC and ST communities. The Court found that the State governments are responsible for ensuring that the provisions of the Act are carried out. The order also required that the special benefits of the Legal Services Authority Act, 1987 be extended to persons from the SC and ST communities.

    Citation: National Campaign on Dalit Human Rights v. Union of India, (2017) 2 SCC 432

  • Constitution of all-India birth database to check female foeticide ordered

    A Supreme Court bench has passed 16 directions to ensure effective implementation of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act and rules under it. All states and the Union Territories in the country have been asked to maintain a centralized database of civil registration records so that information can be made available on the number of boys and girls being born in the country. It has also directed them to implement incentive schemes for the girl child. Source: http://bit.ly/2pBU9Gt

  • Notice issued to social media sites on inaction over availability of rape videos

    The Supreme Court has asked search engine and social media websites like Google and Facebook to explain why their platforms have been hosting illegal activities like rape videos. A notice has been issued to service providers to not allow subscribers to circulate objectionable material on their websites. The reported cases of cyber crimes have surged by nearly 300 per cent between 2011 and 2014 in the country and the court has favored setting up of an exclusive cyber cell to probe such cases. Source: http://bit.ly/2qhj0vy

  • Government asked to review its position on conjugal relations involving a minor

    The Supreme Court has asked the central government to examine the need to amend a provision in the Indian Penal Code (IPC) that provides immunity to a man from being prosecuted for having sexual intercourse with his minor wife. This exception to Section 375 in the IPC grants immunity to a man for having sexual intercourse with his wife who is at least 15 years old. However, the Protection of Children of Sexual Offences (POCSO) prohibits such sexual relations. The petition filed by a child rights NGO has now been sent to the Women and Child Development Ministry.  Source: http://bit.ly/2p6tC2o

  • High Courts directed to Implement the POCSO Act

    Noting the non-implementation of Section 32 of the Protection of Children from Sexual Offences Act (POCSO), the Supreme Court has directed High Courts of 12 states and two Union territories to take suo motu action and appoint special public prosecutors to deal with cases of child sexual abuse. Section 32 of the POCSO Act requires State Governments to appoint Special Public Prosecutors for every special court under the Act, to ensure speedy and sensitive handling of cases under this Act.

     

    Gaurav Kumar Bansal v. Union of India and Ors, Writ Petition (Civil) No. 203 of 2017

  • Court refuses permission to abort 27 week old foetus

    Developing a confusing jurisprudence on the right of women to terminate a pregnancy after 20 weeks, the Supreme Court refused to allow a woman who had been pregnant for 27 weeks to abort the foetus. The woman had petitioned to the Court seeking exemption from the 20 week rule under the Medical Termination of Pregnancy Act, 1971, on the ground that the foetus had been diagnosed with several deformities and disorders. Relying upon the medical board’s findings that the time period for which the baby would survive could not be ascertained, and because there was no threat to life of the petitioner, the Court dismissed her petition.

     

    Sheetal Shanker Salvi v. Union of India, Writ Petition (Civil) No.174 of 2017

  • Divorced wife can claim maintenance despite desertion

    The Supreme Court, upholding an order of the Himachal Pradesh High Court, granted maintenance to a divorced wife who had deserted her husband. Her husband had obtained divorce on the ground of desertion, and opposed her maintenance petition on the strength of an exception under Sec. 125(4) of the Criminal Procedure Code. This subsection states that a woman is not entitled to maintenance if she refuses to cohabit with her husband without any reasonable cause. Reiterating its earlier position, the Court stated that a divorced wife also falls within the purview of Sec. 125 CrPC, and is thus entitled to maintenance.

     

    Manoj Kumar v. Champa Devi, Special Leave to Appeal (Crl.) No(s).10137/2015

  • Supreme Court takes note of Law Commissions recommendations on death penalty, commutes sentence

    In a case of double murder of the accused person’s wife and child, the Supreme Court overturned the judgment of acquittal of the High Court. However, given the possibility of human error in investigation and appreciation of evidence, the Court refused to impose the death penalty upon the accused. The Court also noted that the Law Commission had recommended abolition of the death penalty in its 262nd report..

     

    State of Maharashtra v Nisar Ramzan Sayyed, Criminal Appeal Nos. 865-866 of 2013

  • Set up care centre for children who face sexual abuse: SC

    A Supreme Court bench has said that the definition of the expression “child in need of care and protection” under Section 2(14) of the Juvenile Justice (Care and Protection of Children) Act, 2000 is not exhaustive. Although a child victim of sexual abuse under Protection of Children from Sexual Offences Act, 2012is a child in need of care and protection, the court cautioned against consigning every such child to the care of child care institution. Instead, it recommended that alternatives such as adoption and foster care also be considered by the concerned authorities.

    Re: Exploitation of Children in Orphanages in the State of Tamil Nadu v. Union of India, 2017 SCC OnLine SC 534 [Supreme Court of India].

    Source: http://bit.ly/2pNdce7

  • Inconsistencies in award of death penalty re-opens debate on capital sentence: convictions in Jyoti Singh and Bilkees Bano cases

    In an appeal against the death penalty by the four convicts in Jyoti Singh’s gang rape, the Supreme Court has upheld the death penalty. The homicidal gang rape of a 23-year old girl in Delhi led to momentus public outrage, propelling the enactment of longstanding reforms in criminal laws relating to sexual assault in March 2013. Unfortunately, the demand for harsh punishments and death penalty has persisted in public and judicial discourse despite evidence showing that certainty of prosecution rather than harsh punishments is the best form of deterrence. The Trial Court in awarding capital punishment to the accused justified it on grounds that the brutal gang rape was an affront to the “collective conscience” of the country. The Delhi High Court and now the Supreme Court have upheld the death sentences.

    The case of Bilkees bano gang rape (where several murders were also committed) brings out the inconsistencies in award of dealth penalty. The gang rape occurred as part of the rioting in 2002 in Gujarat, when Bilkis was five months pregnant. A truck in which she and her family members were travelling was attacked by an armed mob. That killed fourteen family members including her daughter and mother, gang raped her, and left her for dead.

    The case was successfully prosecuted only on National Human Rights Commission’s petitioning the Supreme Court that directed the CBI to probe the matter, shifting the case to Maharashtra in 2004 to ensure an unbiased trial. This case is significant, being not only being only ever conviction for gang rape in communal riots, but also one where state officers were convicted for tampering with evidence. Bombay HC has upheld the conviction of eleven accused in the Bilkis Bano gang rape case, and has overturned the acquittal of seven others – five policemen and two doctors, who have been convicted of tampering with evidence and not performing their duties. .

    While it is laudable that the Bombay HC rejected death penalty upon the accused persons, this case brings out inconsistencies in the legal rationale for ‘rarest of rare’ case on which dealth penalty is justified.

    Mukesh and Ors v State of NCT of Delhi 2017(5)SCALE506 [Supreme Court of India]

    Jaswantbhai Chaturbhai Nai and Ors. v. State of Gujarat and Ors. MANU/MH/0889/2017 [High Court of Bombay]

    Source: http://bit.ly/2pMQJxH; http://bit.ly/2ty8p3G; http://bit.ly/2tYVyIZ

  • Persons with the mental age of a child do not fall within the purview of POCSO, holds SC

    In the case of Eera v State of NCT of Delhi, the Supreme Court has held that an adult person with the mental age of a child cannot be treated as a victim under the Protection of Children from Sexual Offences Act. In this case, the victim/ survivor aged 38 years had the mental age of a 6-8 year old child, and it was argued that the person accused of physically assaulting her must also be booked under POCSO Act, not only to recognize the severity of the offence committed by him, but also to ensure that the provisions of child-friendly procedural safeguards could be utilized by her, and to enable her to seek compensation under the POCSO Act. This appeal was dismissed by the Supreme Court on the ground that the language of the Act was clear, and its scope could not be unduly widened by the Court, as that would amount to judicial legislation.

    Eera v. State (Govt. of NCT of Delhi), 2017 SCC Online SC 787, 21-07-2017

    http://blog.scconline.com/post/2017/07/21/mental-age-of-a-person-does-not-make-himher-a-child-under-the-pocso-act/

  • Citing rampant misuse of Section 498A, Supreme Court renders it non-cognizable, directs setting up of ‘Family Welfare Committees’

    The Supreme Court has directed that for a period of six months, no arrests will be made in cases registered under Section 498A of the Indian Penal Code unless evidence of tangible physical harm and injury is produced by the complainant wife. 498A is a cognizable and non-bailable offence. Surmising that most such cases are filed in the heat of the moment by women who seek to harass their husbands, the SC has directed the establishment of ‘Family Welfare Committees,’ that will oversee and clear every such case for prosecution by examining the facts of each case. It is pertinent to note that the members of the committee will not be drawn from a pool of legally trained professionals, but will comprise of retired persons, wives of officers, etc, thus severely compromising the ability of such a committee to assess the legal aspects of any complaint.

    The judgment perpetuates the myth that most women jump into matrimonial litigation impulsively, and file false criminal cases against their husbands and in laws to harass them and extort hefty alimony amounts. This decision has also been widely criticised for diluting legislative mandate and the principles of the criminal procedure code.

    Rajesh Sharma v. State of U.P., 2017 SCC OnLine SC 821

    http://blog.scconline.com/post/2017/07/27/rising-misuse-of-section-498-a-ipc-supreme-court-formulates-remedial-measures/

  • Instant triple talaq invalid, declares SC

    In the landmark judgment of Shayara Bano and Ors v Union of India and Ors, the Supreme Court by a 3:2 majority has held that divorce through talaq e-bidat, or instant triple talaq, is invalid in law. The Court upheld the settled view that personal law cannot be tested against the Constitution, and the validity of a particular practice must therefore be drawn from the source of a particular religion, in this case, the Quran. This understanding of personal law thus continues to hold that un-codified personal law is above the Constitution, and cannot be declared unconstitutional/ invalid for violating fundamental rights.

    Yet, this judgment is celebrated as its an outcome of mulitiple petitions by Muslim women’s rights groups, and has had declared yet again, instant triple talaq as unconstitutional.

     

    Judgment: http://supremecourtofindia.nic.in/pdf/LU/Supreme%20Court%20of%20India%20Judgment%20WP(C)%20No.118%20of%202016%20Triple%20Talaq.pdf

    Shayara Bano and Ors v Union of India and Ors[Writ Petition (C) No. 118 of 2016]

  • Right to privacy is a fundamental right, holds SC

    A nine judge constitutional bench of the Supreme Court has unanimously held that the right to privacy is a fundamental right and finds recognition in Articles 14, 19, and 21 of the Constitution. The issue of whether an inalienable right to privacy is recognized in the Constitution was referred to this bench by a smaller bench before which the question of validity of the ‘Aadhar card scheme’ is pending.

    While the main issue has been decided unanimously by the bench, the issue of contours of the right to privacy has been dealt with differently in each of the six opinions rendered by the Court. The court has explicitly recognized the feminist critique of the separation of public and private spheres in law, and has thus construed the right to privacy as not only privacy of one’s physical body, but also informational privacy, and the right to privacy of choice and autonomy over fundamental personal choices. Significantly, in a detailed opinion, the Court has expressed its disagreement with the reasoning in the case ofSuresh Kumar Koushal v Naz Foundation which recriminalized homosexuality, underscoring the importance of recognising the privacy rights of all individuals regardless of their sexual orientation.

    While the exact components of the right to privacy can only be determined on a case to case basis, the Court has set forth a strong framework that may have wide ranging implications, not only on data privacy laws, but also in areas such as mandatory reporting of offences, criminalization of non peno-vaginal sexual intercourse, reproductive and sexual health rights, matrimonial laws, the right to choice of food, and so on.

    For full judgment document, click here.

    http://www.livelaw.in/breaking-right-privacy-fundamental-right-sc/

  • Ten year old mother granted compensation for delay in legal proceedings seeking permission for abortion

  • Minor wife can prosecute husband for rape, holds Supreme Court

    In a PIL seeking harmonization of the sexual assault laws under POCSO and IPC, the Supreme Court has held that a minor wife can prosecute her husband for rape. This judgment allows non-consensual sex with a wife under 18 years of age to be prosecuted as rape, thus aligning the provisions on statutory rape with marital rape.  Consequently, the marital rape exception to Sec. 375 of the IPC is now applicable only to adult married women.

    Independent Thought v. Union of India and Anr. W.P. (C) No. 382/2013

    Source: http://bit.ly/2gViwIK; http://bit.ly/2gViwIK

  • Six month cooling off period for mutual consent divorce directory, not mandatory, holds SC

  • SC refers Sabrimala case to constitutional bench

    The Supreme Court has referred the case on entry of women aged 10 to 50 years to the Ayyappa temple in Sabrimala, Kerala, to a constitutional bench. The constitutional bench has been referred five questions for determination, including whether the practice of excluding the female gender from entry to the temple amounts to violative of equal protection under the Constitution, and whether such a practice can be defended as an essential religious practice under the right to freely profess, propagate and practice ones religion. Women aged 10 to 50 years have traditionally been prohibited from entering the Hindu temple, primarily because of the impurity associated with menstruating women. By making temple entry a question of constitutionally guaranteed rights, including the right against untouchability guaranteed under Article 17, the Court has recognised that the treatment of menstruating women may be akin to caste-based discrimination.

    Indian Young Lawyers Association and Ors. v. State of Kerala and Ors. W.P. (C) NO. 373/2006

    Source: http://bit.ly/2z7ht2Z; http://bit.ly/2yZLTFv

  • Supreme Court directs appearance of Hadiya in Court to assess consent

  • Supreme Court to revisit verdict that put an end to automatic arrest in dowry cases

    A three judge bench of the Supreme Court has agreed to revisit the Court’s division bench decision in the case of Rajesh Sharma v. State of U.P which laid down procedural guidelines to restrict arrests for cases of cruelty against a married woman under Sec. 498A IPC. The directions cautioned against arrests for a period of six months, unless there was tangible evidence of physical harm, and called for the setting up of ‘Family Committees’ for vetting all complaints and initiating reconciliation. The bench has indicated that these guidelines may be in contravention of procedural criminal law as contained in the CrPC.

    Nyayadhar v. Union of India & Ors.

    Source: http://bit.ly/2EIz8NW; bit.ly/2Alirta

  • Husband’s consent irrelevant for obtaining abortion, holds Supreme Court

  • Parsi woman challenges the absence of a mediation process in Parsi Marriage and Divorce Act

    A Parsi woman has moved the Supreme Court questioning the validity of several provisions of Parsi Marriage and Divorce Act. The petitioner had moved a Parsi matrimonial suit early last year seeking dissolution of her 11-year-old marriage. She claims that the procedure under the 1938 personal law was exasperatingly cumbersome, involving a system much like a jury, as specified under section 46 of the Act, and granted no access to the mediation and settlement available to Hindu women under the family court system.

    Naomi Sam Irani v. The Union of India and Sam Shapoor Irani

    Source: https://goo.gl/SNKCkA; http://bit.ly/2D6N4ke

  • Supreme Court to review the constitutionality of adultery law

    The Supreme Court has issued a notice to the government in a petition challenging the constitutionality of Section 497 of the IPC. The three-judge bench noted that only the man with whom adultery is committed is criminally liable under the provision, which exempts the wife from criminal liability. The bench also noted the discrimination between husband and wife, given that only the husband can initiate action for his wife’s adultery, but the wife cannot initiate criminal action against her husband. Finally, alluding to the ‘consent clause’ of the section, which exempts the adulterer from criminal liability if the husband’s consent is proved, the bench opined that this amounts to ‘subordination of women,’ and thus needs to be tested against constitutionally guaranteed rights. The Supreme Court has previously upheld the constitutionality of this section in three different cases.

    Joseph Shine v. Union of India, 2017 SCC OnLine SC 1447

    Source: http://bit.ly/2rbydDz; http://bit.ly/2Dfw9jC

  • Supreme Court upholds validity of Hadiya’s marriage

    The Supreme Court, in an interim order, has reinstated the marriage of Hadiya, which had been annulled by the High Court of Kerala amidst controversy over her religious conversion to Islam and subsequent marriage. Given that the marriage was annulled in habeas corpus proceedings filed by her father, the Supreme Court cited that such proceedings were not appropriate for passing an order of annulment, while at the same time highlighting the fact of her free consent in exercising her right to choice to marry. However, the Court ordered investigation into forced conversions to Islam by the National Investigation Agency will continue. Earlier, the Court had appointed a guardian for Hadiya, despite her being an adult, and had severely restricted her access to her husband Shafin Jahan, the petitioner in the present matter. The decision of the High Court of Kerala, as well the delay caused by the Supreme Court in remedying it were widely criticized by the civil society.

    Hadiya’s case has brought forth charged contestations over women’s religious identities and their right to exercise choice in marriage, with competing claims about forced conversions to Islam, and the existence of violent ‘curing’ centres for reconversions to Hinduism in Kerala.

    Shafin Jahan v. Asokan K.M. and Ors. SLP (Crl) No. 5777 of 2017

  • Petitions challenging constitutionality of IPC provisions on homosexuality and adultery referred to constitutional bench

    A three judge bench of the Supreme Court has referred a fresh petition challenging the constitutionality of Sec. 377 of the Indian Penal Code, which criminalises same-sex sexual intercourse, to a five judge constitutional bench. The Court noted that its decision in Suresh Kumar Kaushal v. Naz Foundation, which had effectively recriminalized homosexuality in 2014, required reconsideration in light of the holding of right to privacy as a fundamental right, and the absence of any reference to consent in determining criminality of sexual acts under Sec. 377.

    In another case, the Court has noted the constitutional issues involved in the criminalisation of a wife’s adultery under Sec. 497 of the Indian Penal Code, and referred a petition challenging the same to the constitutional bench. In making the order, the Court noted the anomalies created by the selective criminalisation of a wife’s adultery alone – which exposes her paramour to criminal liability upon her husband’s complaint – while exempting the husband from any responsibility for his adulterous liaisons.

    Navtej Singh Johar and Ors. v. Union of India W.P. (Crl.) 76/2016

    Joseph Shine v. Union of India W.P. (Crl.) 194/2017

    https://bit.ly/2uKGwIo, https://bit.ly/2GMEaNR

  • Supreme Court dismisses plea to make sexual assault gender neutral

    The Supreme Court refused to admit a Public Interest Litigation filed by a practicing advocate which sought the declaration of all penetrative and non-penetrative sexual assault provisions in the IPC as gender-neutral – both with respect to the victim and the perpetrator. The challenge was based in the premise that these provisions, under which only a man can be the perpetrator of sexual assault, and only a woman can be the victim, ignore social realities and are violative of the fundamental rights to equality and against discrimination on the basis of sex. The Court dismissed the petition on the grounds that classification along the lines of sex had been a policy decision of the legislature, and thus, could only be remedied by it. While inclusion of trans persons and men as victims in the definition of rape is necessary, women’s rights groups have resisted the push for a rape law with a gender-neutral  perpetrator, as this is plainly a backlash against women’s increased reporting and prosecution of rape.

    https://bit.ly/2Jg58fk

  • Supreme Court issues notice to states to implement the SHW Act

    The Supreme Court has issued notice to the central government and all state governments to implement the Sexual Harassment of Women at Workplace (Prevention, Prohibition, Redressal) Act, 2013. This was in response to a PIL filed by an NGO highlighting that several state governments had neither constituted Local Committees in each district, nor had they appointed district officers, both legally mandated under the law. According to the research study on which the PIL is based, only 12 States and 4 Union Territories had appointed district officers, while 7 others had taken steps to do the same, while only 5 States and 2 Union Territories provided details of the Local Committees constituted by them.

    https://bit.ly/2C7anJs