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