criminal case & analysis, Exams of Criminal Law

Download criminal case & analysis and more Exams Criminal Law in PDF only on Docsity! PRABHJOT KAUR MAGGO A11911115178 B.A LLB. (HONS.) 2015-2020 SECTION-E GUIDE- MS. GARGI BHADORIA 1 INTERNSHIP REPORT NAME OF THE FIRM: ANME LEGAL DURATION OF INTERNSHIP: 03/02/2020 – 14/03/2020 NAME OF STUDENT: Prabhjot Kaur Maggo ENROLLMENT NUMBER: A11911115178 INTERNSHIP GUIDE: Ms. Gargi Bhadoria SEMESTER- X DAY 1 (03 FEBRUARY , 2020) – Reporting time 10:00am- Today, was the first day of my internship in the Anme Legal. The firm deals in legal services and consultation. I chose to work in this firm as it deals in all the aspects of law i.e both corporate and litigation matters which would help me in an allround development. Today I shown around the office and was introduced to the staff. I was shown my desk and place where all important documents, files & books etc. where been kept. I went through the office atmosphere my advocate guide told me regarding his areas of work, types of clients etc. My area of interest is IPR and I would like to continue the same as a career option. Today i.e on the first day itself I was given a topic to research on ‘The role of IPR in protection of biodiversity in international overview’ and was asked to submit the report by the end of the week. 2 As it was weekend so sir asked us to write an article on the ‘Surrogacy Laws in India’ and instead of writing the facts realted to the article he asked us to write our own views on the articles and what laws we suggest for the same. DAY 7 – SUNDAY DAY 8 (10 FEBRUARY, 2020) – Reporting time 10:00am- Today, when I reached the office all the interns were asked to report to Adv. Megha Karel, she handed me and my co-intern a SC petition case file in the matter of- Kaushik Chattopadhyay & Another V. Union of India sir and asked us to go through the file and give our view over the same, the main issue of case was regarding demonetization and the plaintiff wanted gateway to be opened for exchange of his old notes kept in locker which was sealed due to some legal prohibition. Later, we discussed over the same with Adv. Megha Karel and in the evening left for home by her due permission. DAY 9 (11 FEBRUARY, 2020) – Reporting time 10:00am- Today, Adv. Megha Karel took the interns to the NCLT, New Delhi and made us listen the matters in court room no. 1 as she had some other work there. She asked us to sit their and call her when her case comes according to the cause list. We had to wait as matter came up in 2nd half after the lunch break the matter was of- smt. Anupam Khanna V. AMR Infrastructure. After, work for the day got over I left for home in the evening DAY 10 (12 FEBRUARY, 2020) – Reporting time 10:00am- 5 Today, Adv. Megha Karel started with a group discussion on ‘constitutional importance in Environmental Law’ field and later she asked us to make a report on the same. I made a report on the ‘Preamble’s’, importance. I got to know that our nation India is the 1st nation in the world which contain provisions for protection & improvement of the environment.As our preamble follows a ‘socialist approach’ thereby, government pays more attention to the social problems. The basic aim of state is to provide a ‘decent standard of living’ to all and pollution is one of social problems to be paid most of the attention. After the research work I submitted my report to Adv. Megha Karel. Later, she explained us the importance of the law journals and we cleared doubts regarding the same and in the evening, I left for home after my work got over. DAY 11 (13 FEBRUARY, 2020) – Reporting time 11:00am- Today me and co-intern visited NCLT, New Delhi as Adv. Ankush Jain had two matters over their today for the first one he simply got another date and in another one court ordered to send certain documents to the respondent on their new mail id. The second matter took after the lunch break so we had to wait for it. Sir asked to see a few more matters to see court’s working here as well. Then, in the evening when all work got over we left for home respectively. DAY 12 (14 FEBRUARY, 2020) – Today, when I reached the office of Adv. Megha Karel she asked me to check the plagiarism of all the reports submitted by the interns and to check official mails and reply to them as guided to. Then we were given the constitution of India’s bare act & were asked to revise WRITS under Article 32 & Article 226 respectively also the Part-IV i.e. Directive Principles of State Policy (DPSP). We founded that articles- 47 & 48-A is related to environmental protection respectively. 6 In the evening when he came back to office we gave him the list and left for home with his due permission DAY 13 (15 FEBRUARY, 2020) – Today, Adv. Ankush Jain , gave me and my co-intern session about ‘High Court Appeals’ & ‘Supreme Court Appeals’. We were explained that in Supreme Court appeal is sort of a prayer type of thing like you don’t have direct right to appeal but if you do and Supreme Court considers it and accept it as per case’s requirements it will do pass a notice then it will become civil or criminal appeal as per the case. In the civil matters stay order is passed and in criminal matters suspension order is been passed. In the civil matter the case can be passed to legal heirs but in criminal not for example- a son cannot be held guilty for his father’s crime. Later, Adv. Ankush Jain gave us the Supreme Court passes to visit today. He asked us to visit mainly court room no. 5 & 12 of J. Joseph & J.F Marian and the Chief Justice’s Court as they would be the most productive and learning for us. then we also visited court of J. Chameshwarm, J. Niranjan etc. and heard few matters and noted down points we founded relevant. Later, in the evening we came back to office and left for our homes respectively. DAY 14- SUNDAY DAY 15 (17 FEBRUARY, 2020) – Reporting time 10:30am- Today, Adv. Ankush Jain asked me to report to Patiala House Court (District Courts), New Delhi. Sir had matter in the family court building 2nd floor, the court of Sidharth Sharma Additional Sessions Judge. We went for the matter of Case no.- CC no. 15/17 SEBI V. BASIL INTERNATIONAL related to the SEBI’S Act,1992. Later, at the office he asked me to study a case it was regarding the joinder of charges that the sections of joinder of charges are not compelling in nature. They only permit the joint trial of charges under certain circumstances, and the courts may consider the same in the interest of the 7 Later, I left for home by due permission. DAY 21 - SUNDAY DAY 22 ( 24 FEBRUARY,2020) – Reporting time 10:00am- As last week we were discussuing about the recently passes CAA-2019, Adv. Megha Karel asked all the interns to write a article on the topic ‘India’s New Citizenship Law and its Anti- Secular Implications’ Despite mixed statements by key government leaders over the past few weeks on whether there will be a nationwide implementation of the NRC, in late December, the Indian Cabinet has cleared US$550 million to update the NPR, an update previously described by the government census organization as the first step in the creation of the NRC. Later, Adv. Megha Karel asked me to make a detail of all the cases and hearings lined up this week and after that I left for home by due permission. DAY 23 ( 25 FEBRUARY, 2020) – Reporting time 10:00am- Today, Adv. Ankush Jain took us for a hearing in the Rohini court CA No.130/18 Surender Kumar Vs. Amrik Singh in the court of Manish Jain, Civil Judge, North-West.He asked for a Fresh execution petition received by way of assignment. It be checked and registered Later, Sir asked us to take a tour of the court and in the evening I left for home by due permission DAY 24 (26 FEBRUARY,2020) – Reporting time 10:00am- 10 Today, Adv. Ankush Jain asked all the interns to research on the topic ‘Reinvigorating Human Rights in Internet Governance: The UDRP Procedure Through the Lens of International Human Rights Principles’ and to submit it by the end of the day. It is an international legal framework for resolving disputes between trademark owners and domain name holders, the Uniform Domain Names Disputes Resolution Policy (“UDRP”), purports to address economic interests.Also, Sir made us understand the need for a change in the legal system and laws in our country. Later in the evening left for home by due permission DAY 25 (27 FEBRUARY, 2020) – Reporting time 10:30am- Today, Adv. Megha Karel gave me a case file of Carlsberg Breweries v. Som Distilleries and Breweries Limited wherein the issue was Whether a composite suit that joins infringement of a registered design and passing off of a trademark is maintainable? The court held that a composite suit dealing with infringement of a registered design and passing off is maintainable, thus overruling its judgment in Mohan Lal v. Sona Paint wherein it was held that these actions cannot be combined in one suit as the causes of action on which both the matters were premised on were different. The Court observed that in the instant matter, the cause of action pertaining to the infringement of a design as well as passing off emanated from the same transaction and therefore to avoid multiplicity of proceedings, the claims for infringement and passing off could be clubbed together in one suit. DAY 26 (28 FEBRUARY,2020) – Today, I took a day off from my internship as I had some important work in my college. So, I got a mail from the Firm to proof-read the appeals drafted by the other interns and mail to the advocate guide after making all the corrections. 11 DAY 27 (29 FEBRUARY,2020) – Reporting time 10:30am- Today, Adv. Megha Karel discussed a case of her client wherein the issue was related to the relation between a design and a trademark so she asked all the interns to do a research related to the case mentioning all the recent judgements of Indian courts related to the same. In the evening she asked all the interns about the facts related to the case. So, the case of Crocs Inc Usa v. Bata India Ltd & Ors order dated- January 24, 2019 was put up wherein The Court interpreted the legislative intent of the Design Act which is to grant limited monopoly by design registration and after the term of registration, it should be open for anyone to use the said design. The legislative intent will be defeated if the design after its term was allowed to be used as trademark. The court used the analogy of patents rights which is granted for a limited period and observed that the intention to give design protection for a limited time cannot be extended to protection in perpetuity by claiming trademark rights. Therefore, the court gave an opinion that not only the registered design cannot be a trade mark during the period of design registration but even thereafter. Accordingly, the court held that a registered design cannot constitute a trade mark; however if there are features other than those registered as a design and are shown to be used as a trade mark and with respect to which goodwill has been acquired, it is only those extra features which can be protected as a trade mark. If there has been a copy of registered design, only an action for infringement under the Designs Act would lie. DAY 28-SUNDAY DAY 29 ( 02 MARCH,2020) – Reporting time 10:00am- Today Adv. Ankush Jain asked me to Look at various sections under Companies Act (Singapore) with respect to his new case and send him a copy of those sections related to the case. Under Registration Act is it necessary to register an amendment that has been made in the document or deed that has already been registered. 12 DAY 37 ( 10 MARCH, 2020) – Holiday in lieu of Chaitra Sukhladi DAY 38 (11 MARCH,2020) – Reporting time 10:00am- Today I was asked to do research work on: • What are the guidelines that deal with Restructuring of loans by NBFC and what are the types of loans under those guidelines. • What is the validation of Notice sent through Whatsapp and if Truecaller is admissible as an evidence. Later, in the evening left for home by due permission DAY 39 ( 12 MARCH, 2020) – Reporting time 10:30am- Today Adv. Megha Karel Had to make required changes in Software Lincese Agreement. Also, I Had to look for case laws that grant power to Arbitrator to Award Pendente Lite Interest or Compound Interest. Later, in the evening left for home by due permission DAY 40 (13 MARCH,2020) – Reporting time 10:30am- 15 Today Adv. Megha Karel asked me to submit a case summary of “State of West Bengal Vs. Associated Contractor” and to Look for provisions related to tax treatment of gifts. Later, I handed over the research work to Adv. Megha Karel and left for home. DAY 41 (14 MARCH,2020) – Reporting time 10:30am- Today Adv. Ankush taught us how to look for the relevant provisions of the Information Technology Act and the rules that with “Payment Aggregator” providing Healthcare Services. I was asked to make a table on how the terms of a Term Sheet will affect the existing rights of an Investor.Had to search for templates of a Termination Letter. In the evening left for home by due permission DAY 42-SUNDAY 16 Shayara Bano vs Union of India & Ors. 23 August, 2017 : Case Analysis IN THE SUPREME COURT OF INDIA Original Civil Jurisdiction Writ Petition (C) No. 118 of 2016 Shayara Bano … Petitioner versus Union of India and others … Respondents with Suo Motu Writ (C) No. 2 of 2015 Nature of case: Domestic Date of Judgement: 2017.08.23 Five Judge Bench: Jagdish Singh Khehar(CJ), Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit, S. Abdul Nazeer JJ. 17 RULES APPLICABLE  Muslim Personal Law (Shariat) Application Act, 1937  Constitution of India namely- i) Articles 14 (equality before the law) ii) 15(1) (prohibition of discrimination including on the ground of gender) iii) 21 (right to life) and iv) 25 (freedom of religion)  Precedent- Already existing legal precedent established by the apex court with respect to triple talaq (i.e Triple Talaq is Valid) ISSUE • The validity of triple talaq. • Whether Triple Talaq is an essential religious practice? ARGUMENT ON BEHALF OF PETITONER 175. On behalf of the petitioner, besides the petitioner herself, submissions were initiated by Mr Amit Singh Chadha, Senior Advocate. He invited this Court's attention to the legislative history in the field of Muslim Personal Law (for details, refer to Part 4 — Legislation in India, in the field of Muslim Personal Law, above). It was submitted, that all fundamental rights contained in Part III of the Constitution were justiciable. It was therefore pointed out, that the petitioner's cause before this Court, was akin to such rights as were considered justiciable. The practice of “Talaq-e-Biddat”, according to the learned counsel, permitted a male spouse an unqualified right, to severe the matrimonial tie. It was pointed out, that the right to divorce a wife, by way of Triple Talaq, could be exercised without the disclosure of any reason, and in fact, even in the absence of reasons. It was submitted, that a female spouse had no say in the matter, inasmuch as, “Talaq-e-Biddat” could be pronounced in the absence of the wife, and even without her knowledge. It was submitted that divorce pronounced by way of Triple Talaq was final and binding, between the parties. These actions, according to the learned counsel, vested an arbitrary right in the husband, and as such, violated the equality clause enshrined in Article 14 of the Constitution. It was submitted, that the Constitution postulates through the above article, equality before the law and equal protection of the laws. This right, according to the learned counsel, was clearly denied to the female spouse in the matter of pronouncement of divorce by the husband by adopting the procedure of “Talaq-e-Biddat”. Furthermore, it was submitted, the Constitution postulates through Article 15, a clear restraint on discrimination on the ground of sex. It 20 was submitted, that “Talaq-e-Biddat” violated the aforesaid fundamental right, which postulates equality between men and women. The learned counsel relied on the decisions of this Court in Kesavananda Bharati v. State of Kerala [Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225] and Minerva Mills Ltd. v. Union of India [Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625] to contend that it was the duty of courts to intervene in case of violation of any individual's fundamental right and to render justice. It was also submitted that the rights of the female partner in a matrimonial alliance amongst Muslims had resulted in severe gender discrimination, which amounted to violating their human rights under Article 21 of the Constitution. The learned counsel accordingly sought intervention for grave injustice practised against Muslim wives. 176. Mr Amit Singh Chadha, learned Senior Counsel, then placed reliance on Jiauddin Ahmed [Jiauddin Ahmed v. Anwara Begum, (1981) 1 Gau LR 358] and Rukia Khatun [Rukia Khatun v. Abdul Khalique Laskar, (1981) 1 Gau LR 375] cases (for details, refer to Part 6 — Judicial pronouncements on the subject of “Talaq-e-Biddat”, above). Based on the above judgments, it was submitted, that courts of this country had not found favour with the practice of Triple Talaq in the manner prevalent in India. It was contended that “Talaq-e-Biddat” should not be confused with the profession, practise and propagation of Islam. It was pointed out that “Talaq-e-Biddat” was not sacrosanct to the profession of the Muslim religion. It was accordingly submitted, that this Court had an indefeasible right to intervene and render justice. In order to press his claim based on constitutional morality, wherein the petitioners were claiming not only gender equality, but also the progression of their matrimonial life with dignity, the learned Senior Counsel placed reliance on Manoj Narula v. Union of India [Manoj Narula v. Union of India, (2014) 9 SCC 1] , wherein this Court observed as under: (SCC p. 49, paras 74-75) 177. In continuation with the instant submission, it was also the contention of the learned Senior Counsel, that Articles 25, 26 and 29 of the Constitution, did not in any manner, impair the jurisdiction of this Court, to set right the apparent breach of constitutional morality. In this behalf, the Court's attention was invited to the fact, that Article 25 itself postulates, that the freedoms contemplated thereunder, were subject to the overriding principles enshrined in Part III—Fundamental Rights of the Constitution. This position, it was submitted, was affirmed through judgments rendered by this Court in John Vallamattom v. Union of India [John Vallamattom v. Union of India, (2003) 6 SCC 611] , Javed v. State of Haryana [Javed v. State of Haryana, (2003) 8 SCC 369] and Khursheed Ahmad Khan v. State of U.P. [Khursheed Ahmad Khan v. State of U.P., (2015) 8 SCC 439 : (2015) 4 SCC (Civ) 122 : (2015) 3 SCC (Cri) 627 : (2015) 2 SCC (L&S) 714] 178. The learned Senior Counsel also drew our attention to the fact that a number of countries had by way of express legislations done away with the practice of “Talaq-e-Biddat”. It was submitted, that even when talaq was 21 pronounced thrice simultaneously, the same has by legislation been treated as a single pronouncement, in a number of countries including countries which have declared Islam as their official State religion. It was accordingly contended that had “Talaq-e-Biddat” been an essential part of religion i.e. if it constituted a core belief on which Muslim religion was founded, it could not have been interfered with, by such legislative intervention. It was accordingly suggested that this Court should have no difficulty whatsoever in remedying the cause with which the petitioners had approached this Court, as the same was not only violative of the fundamental rights enshrined in the Constitution, but was also in contravention of the principle of constitutional morality emerging therefrom. 179. Last of all, it was contended that it is nobody's case before this Court that “Talaq-e-Biddat” is a part of an edict flowing out of the Quran. It was submitted that Triple Talaq is not recognised by many schools of Islam. According to the learned counsel all concerned acknowledge that “Talaq-e- Biddat” has all along been treated irregular, patriarchal and even sinful. It was pointed out that it is accepted by all schools—even of Sunni Muslims, that “Talaq-e-Biddat” is “bad in theology but good in law”. In addition, it was pointed out, that even the Union of India had affirmed before this Court the position expressed above. In such situation, it was prayed, that this Court being a constitutional court was obliged to perform its constitutional responsibility under Article 32 of the Constitution, as a protector, enforcer and guardian of citizens' rights under Articles 14, 15 and 21 of the Constitution. It was submitted that in discharge of the above constitutional obligation this Court ought to strike down, the practice of “Talaq-e-Biddat”, as violative of the fundamental rights and constitutional morality contemplated by the provisions of the Constitution. It was commended, that the instant practice of “Talaq-e-Biddat” should be done away with in the same manner as the practice of “Sati”, “Devadasi” and “Polygamy”, which were components of Hindu religion and faith. 180. The learned counsel concluded his submissions by quoting from Constitutional Law of India, by H.M. Seervai (4th Edn., Vol. 2, published by N.M. Tripathi Pvt. Ltd., Bombay), wherein in Clause 12.60, at p. 1281, the author has expressed the following view: “12.60. The present political and judicial climate—“never despair”.—I am aware that the enforcement of laws which are violated is the duty of Government, and in a number of recent cases that duty has not been discharged. Again, in the last instance, blatant violation of religious freedom by the arbitrary action of religious heads has to be dealt with firmly by our highest court. This duty has been resolutely discharged by our High Courts and the Privy Council before our Constitution. No greater service can be done to our country than by the Supreme Court and the High Courts discharging that duty as resolutely, disregarding popular clamour and disregarding personal predilections. I am not unaware of the present political and judicial climate. But I would like to conclude with the 22 opportunity is available to the spouses, to retrieve a decision taken in haste. The rule of “Talaq-e-Biddat”, it was pointed out, was introduced long after the time of the Prophet. It was submitted that it renders the measures provided for in the Quran against hasty action ineffective, and thereby deprives people of a chance to change their minds, to retrieve their mistakes and retain their wives. ARGUMENT ON BEHALF OF RESPONDENT 209. The learned Attorney General for India—Mr Mukul Rohatgi commenced his submissions by contending, that in this case, this Court has been called upon to determine, whether the practice of “Talaq-e-Biddat” was compatible with contemporary constitutional morality and the principles of gender equality and gender equity guaranteed under the Constitution? In the context of the above debate, it was submitted, that the pivotal issue that needed to be answered was, whether under a secular Constitution, Muslim women could be discriminated against, merely by virtue of their religious identity. And/or whether Muslim women, could be relegated to a status significantly more vulnerable than their counterparts who professed other faiths—Hindu, Christian, Zoroastrian, Buddhist, Sikh, Jain, etc.. In other words, the fundamental question for determination by this Court, according to the learned Attorney General was, whether in a secular democracy, religion can be a reason to deny equal status and dignity to Muslim women. 210. In the above context, it was pointed out that the fundamental right to equality guaranteed under Article 14 of the Constitution, manifested within its fold equality of status. Gender equality, gender equity and gender justice, it was submitted, were values intrinsically entwined in the guarantee of equality under Article 14. The conferment of a social status based on patriarchal values, or a social status based on the mercy of the men-folk, it was contended, were absolutely incompatible with the letter and spirit of Articles 14 and 15 of the Constitution. The rights of a Muslim woman to human dignity, social esteem and self-worth, it was submitted, were vital facets of a woman's right to life with dignity, under Article 21 of the Constitution. It was submitted that gender justice was a constitutional goal of overwhelming importance and magnitude, without accomplishing the same, half of the country's citizenry, would not be able to enjoy to the fullest—their rights, status and opportunities. Reference was also made to clause (e) of Article 51-A of the Constitution, which is extracted below: “51-A. (e)to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and 25 regional or sectional diversities; to renounce practices derogatory to the dignity of women;” It was accordingly asserted that Muslim women could not be subjected to arbitrary and unilateral whims of their husbands, as in the case of divorce by Triple Talaq amongst Sunni Muslims belonging to the Hanafi School. 212. Reference was also made to Anuj Garg v. Hotel Assn. of India [Anuj Garg v. Hotel Assn. of India, (2008) 3 SCC 1] , wherein it was submitted that this Court had emphasised on the value of gender equality and the need to discard patriarchal mindset. For arriving at the above conclusion, it was submitted that this Court had relied upon international jurisprudence, to strike down a law which debarred women from employment on the pretext that the object of the law was to afford them protection. The Court held that: (SCC p. 16, para 41) “it is for the court to review that the majoritarian impulses rooted in moralistic tradition do not impinge upon individual autonomy [of the women].” The Court also quoted from a judgment of the US Supreme Court where discrimination was rationalised “by an attitude of “romantic paternalism” which, in practical effect, put women, not on a pedestal, but in a cage” (SCC p. 17, para 44). Reference was also made to Vishaka v. State of Rajasthan [Vishaka v. State of Rajasthan, (1997) 6 SCC 241 : 1997 SCC (Cri) 932] , wherein, in the context of protection of women against sexual harassment at the workplace, this Court underlined the right of women to a life with dignity. Additionally, our attention was drawn to Charu Khurana case [Charu Khurana v. Union of India, (2015) 1 SCC 192 : (2015) 1 SCC (L&S) 161] , wherein it was concluded that (SCC p. 211, para 41) the “sustenance of gender justice is the cultivated achievement of intrinsic human rights and that there cannot be any discrimination solely on the ground of gender”. 213. The learned Attorney General also cited Githa Hariharan v. RBI [Githa Hariharan v. RBI, (1999) 2 SCC 228] , wherein this Court had the occasion to interpret the provisions of the Hindu Minority and Guardianship Act, 1956. It was submitted, that this Court in the above judgment emphasised the necessity to take measures to bring domestic law in line with international conventions so as to eradicate discrimination of all forms, against women. It was submitted that Articles 14, 15 and 21 constituted an inseparable part of the basic structure of the Constitution. These values—the right to equality, non-discrimination and the right to live life with dignity, it was emphasised, formed the bedrock of the Constitution. Gender equality and dignity for women, it was pointed out, was an inalienable and inseparable part of the basic structure of the Constitution. Since women transcend all social barriers, it was submitted, that the most fundamental facet of equality under the Constitution was gender equality and gender equity. 26 215. In the instant context, the learned Attorney General placed reliance on Valsamma Paul v. Cochin University [Valsamma Paul v. Cochin University, (1996) 3 SCC 545 : 1996 SCC (L&S) 772] , and drew the Court's attention to the following: (SCC pp. 558-59, para 16) “16. The Constitution seeks to establish a secular socialist democratic republic in which every citizen has equality of status and of opportunity, to promote among the people dignity of the individual, unity and integrity of the nation transcending them from caste, sectional, religious barriers fostering fraternity among them in an integrated Bharat. The emphasis, therefore, is on a citizen to improve excellence and equal status and dignity of person. With the advancement of human rights and constitutional philosophy of social and economic democracy in a democratic polity to all the citizens on equal footing, secularism has been held to be one of the basic features of the Constitution (Vide S.R. Bommai v. Union of India [S.R. Bommai v. Union of India, (1994) 3 SCC 1] ) and egalitarian social order is its foundation. Unless free mobility of the people is allowed transcending sectional, caste, religious or regional barriers, establishment of secular socialist order becomes difficult. In State of Karnataka v. Appa Balu Ingale [State of Karnataka v. Appa Balu Ingale, 1995 Supp (4) SCC 469 : 1994 SCC (Cri) 1762] this Court has held in para 34 that judiciary acts as a bastion of the freedom and of the rights of the people. The Judges are participants in the living stream of national life, steering the law between the dangers of rigidity and formlessness in the seamless web of life. A Judge must be a jurist endowed with the legislator's wisdom, historian's search for truth, prophet's vision, capacity to respond to the needs of the present, resilience to cope with the demands of the future to decide objectively, disengaging himself/herself from every personal influence or predilections. The Judges should adapt purposive interpretation of the dynamic concepts under the Constitution and the Act with its interpretive armoury to articulate the felt necessities of the time. Social legislation is not a document for fastidious dialects but means of ordering the life of the people. To construe law one must enter into its spirit, its setting and history. Law should be capable to expand freedom of the people and the legal order can weigh with utmost equal care to provide the underpinning of the highly inequitable social order. Judicial review must be exercised with insight into social values to supplement the changing social needs. The existing social inequalities or imbalances are required to be removed readjusting the social order through the rule of law. …” 216-220. It was emphasised by the learned Attorney General that it was necessary to draw a line between religion per se and religious practices. It was submitted that the latter were not protected under Article 25. “Religion”, according to the learned Attorney General, has been explained by this Court in A.S. Narayana Deekshitulu v. State of A.P. [A.S. Narayana 27 practiced by the Hanafi School but it is considered sinful in it. Triple Talaqis against the basic tenets ofQuoran and whatever is against Quoranis contrary to Shariat therefore, what is bad in theology cannot be good in law. The majority bench relied on its earlier decision Shamim Ara8which held that this practice of Triple Talaq is against both theology and law and just because it is followed by a large number of people it cannot be validated. Therefore, such practice is declared unconstitutional and set aside. Article 25 in it carries the right of every person to freely practice and propagate any religion of choice and such practice is only restricted in the context of the following exceptions: 1. Public Order 2. Health 3. Morality Other Provisions of Part III of the Constitution Although the said practice has no relevance to the first three exceptions but the said practice is surely against other provisions of Part III namely Article 14. The said practice is in violation of the Fundamental Right of equality since it is against the rights of women as they have no say in the declaration of divorce unlike in other religions. Nariman & Lalit JJ. held that the impugned practice is a tool by which marital tie can be broken on whims of Husband without any attempt of reconciliation to save it. This form of Talaq therefore, is in violation of Article 14 and liable to be struck down by the courts. What is an essential religious practice? It depends on the background, history and tenets of the religion. If some practice is not prohibited then it does not necessarily mean that such practice is an essential religious practice. Essential religious practices are those on which the religion is founded upon. Essential religious are those which are fundamental to the profession and propagation of the religion. If taking away of a practice causes a substantial change in the religion then such practice can be called as ‘an essential religious practice.’ Only such practices are protected in Article 25(1). The usurpation of religious practices through state intervention will result in violation in rights mentioned in Article 25(1) & not with the usurpation of circumstantial and non-essential practices. The fact that majority of Islamic countries have done away with the said practice also reflects that the said practice is not one which will be called as an essential religious practice. However, Justice Khehar, writing the minority opinion held that such practice is an essential religious element of Islam. The Minority bench of the court justified this stance on the ground that this practice is followed by a large population of people. Since this practice has the sanction of 8 Shamim Ara v. State of U.P. (2002) 7 S.C.C. 518` 30 religious denomination and followed by an overwhelming majority of Muslim population, the said practice is declared to be constitutional and an essential religious practice. Justice Kehar was, as far as the exceptions mentioned in Article 25(1) of the Constitution, of the opinion that the impugned practice is not violative of any of these exceptions since Shariat or Muslim Personal law is not based on any state legislative action. JUDICIAL ANALYSIS The Triple Talaq judgment is widely appreciated throughout the jurisdictions as a protection shield against the social evil such as this practice promoted. The majority bench on the face of it criticized the government for not making relevant laws to prohibit such a regressive practice. This act allowed the husband to end the marital tie on his whims and fancies, thereby making the life of the women hell. The Muslim women have since many years demanding the protection from such a regressive and bad practice and finally it was the apex court which gave them the appropriate remedy.9 Justice Nariman at the outset said that as soon as he would find any violation of Fundamental Right, he will strike down the practice. There was no question that the said practice was an essential religious practice or notsince majority of Islamic nations have already banned the practice & in India only Hanafi School practices it. Therefore, it cannot be said that the practice is one of religious importance. The majority finding the said practice in violation of Article 14 as well as of the exceptions laid down in Article 25(1) struck down the regressive act with 3:2 majority. The bench observed that merely because the practice is widespread and continuing from time immemorial it cannot be held as an essential religious practice. Hinduism also after finding Sati Pratharegressive removedit from the religion. Sati was also practiced widespread and practiced since time immemorial. Therefore, the court arrived at a very correct judgment. The majority started its judgment by the phrase “what is bad in theology cannot be good in law”. This statement makes it clear the stance of the majority bench on the impugned act. One does not need to dwell down into the details and should understand that if Triple Talaqhad been a essential religious practice of Islam then in that case it would not have been banned in almost all Islamic nations. Further, the said practice is only practiced in Hanafi School who itself considers it sinful. Therefore, the majority bench correctly held such practice as unconstitutional. The minority judgment written by CJ Kehar on the behalf of himself and Justice Nazeer was flawed in every aspect. The hon’ble judges should have considered that fact that Firstly, an essential religious practice would not have been banned by the Islamic nations. 9 http://lawtimesjournal.in/triple-talaq/ 31 Secondly, an essential religious practice cannot be stated as sinful by the religion itself. Thirdly, merely because one community of the religion follows the practice, then such practice cannot be termed as an essential religious. The minority bench ignored the atrocities that are committed by the said practice. It is the duty of the courts to dispense justice and the courts should not be deterred by mere technicalities in dispense justice. The minority judgment is per incuriam as the judges said that however bad the practice be, if it is an essential practice it cannot be struck down. The whole reasoning of the minority bench is irrational, unfair and unjust. If the two judges have also ruled in the favor of majority the impact would be altogether different. However, thanks to the justified reasoning provided by the majority bench India finally did away with the regressive and backward practice of Triple Talaq or Talaq-e-biddat. CONCLUSION After so many abortive attempts finally, a petition filed by Shayara Bano, Ishrat Jahan, Aafreen Rehman, Gulshan Parveen was successful in bringing justice to many unheard voices of India. The majority decision restored the trust that the common people possesses for the institution of Judiciary. The judgment proved that the democratic notions such as equality, liberty etc. would not bend down against any philosophy even if it is a religion. The courts finally brought justice to those women who have been a victim of Triple Talaq. Men after enjoying and extracting pleasure out of women used to abandon them easily by the virtue of Triple Talaq. Now, after the pronouncement of the judgment the situation has changed and made such incidents impossible. No husband can now abandon his wife by ending marital tie on his whims and fancies. The court ensured that the ideas of equality especially gender equality is not a mere theoretical ideology. However, the opinion of minority bench worries the nation. If the Chief Justice of India is giving primacy to practices such as Triple Talaq ignoring the widespread atrocities, then there is some serious rethink required by the Judges of the apex court. COMMENT I feel that the judgment in Shayara Bano does not change the legal position of ITT (irregular or heretical form of talaq) that existed before, but creates confusion on the constitutional status of personal law and misses a great opportunity to elaborate on the constitutional vision of justice for women from minority religious groups. 32 husband of the woman then, such act seizes to be an offence punishable under the code. The same amounts to institutionalized discrimination which was repelled by this Hon’ble Court in Charu Khurana and Ors v. Union of India and Ors. The said provision is also hit by the ratio laid down in Justice K.S Puttaswamy (Retd. ) v. Union of India and Ors, (Writ Petition (Civil) No. 494 OF 2012), since sexual privacy is an integral part of ‘right to privacy.’ Section 198 (2) of CrPC is also violative of Article 14, 15 and 21 of Constitution of India since it excludes women from prosecuting anyone engaging in adultery. The judgment has overruled all the past judgments which upholds the criminalization of adultery. Now, adultery is become legal but it is still not ethical with the society. The institution of marriage is based on the trust between both the partners i.e. husband and wife. Therefore, Honorable Supreme Court of India does not interfere in the personal and moral lives of the people. Currently, adultery is only considered as a civil wrong and the remedy for the act of adultery is only divorce However the respondents are of the view that consensual sexual relationship outside marriage would breakdown the institution of marriage and it does not warrant protection under Art 21. And moreover the right to privacy and personal liberty is not an absolute one and is subject to reasonable restrictions when legitimate public interest is involved. Art 15(3) saves the provision as a special provision for the benefit of women which is an enabling provision providing for protective discrimination. This provision was challenged before this Hon’ble Court on three occasions, firstly in Yusuf Abdul Aziz v. State of Bombay and Another , secondly in Sowmithri Vishnu v. Union of India and finally, in V. Revathi v. Union of India . BRIEF FACTS Joseph Shine, the hotelier challenged the constitutionality of the section 497 of Indian Penal Code. The core reason behind this petition was to shield Indian men from being punished for extra marital relationships by vengeful women or their husbands. Petitioner’s close friend in Kerala committed suicide after a women co-worker made malicious rape charge on him. Further section 497 is an engregious occurrence of sexuality unfairness, authoritative imperialism and male patriotism. The traditional framework in which section 497 was drafted, is no longer applicable in modern society. RULES APPLICABLE 35 • Section 497 of the IPC reads as follows: “497. Adultery.—Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.” • Section 198 (2) of CrPC states as follows: “For the purposes of sub- section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.” • Sec 497 IPC which was challenged, criminalized adultery by imposing culpability on a man who engages in sexual intercourse with another person’s wife. Adultery was punishable with a maximum imprisonment of five years. Women, including consenting parties, were exempted from prosecution. Further a married woman could not bring forth a complaint under Sec 497 IPC when her husband engaged in sexual intercourse with an unmarried woman. This was in view of Sec 198(2) of CrPC which specified how a complainant can file charges for offenses committed under Sec 497 and 498 IPC. • Precedent- 1. Yusuf Abdul Aziz v. State of Bombay,1954 2. Sowmithri Vishnu v. Union of India,1985 3. V Revathi v. Union of India,1988 4. W.Kalyani v. State, 2012 36 ISSUES 1. Whether Sec 497 of the Indian Penal Code, 1860 is unconstitutional being unjust, illegal, arbitrary and violative of fundamental rights. The petitioner wanted certain problems with section 497 to be addressed :- a) Adultery law provides that man to be punished in case of adultery but no action is suggested for the women. Hence, it made the gender neutral. b) As per section 497, there is no legal provision that a woman can file a complaint of adultery against her husband. c) According to section 497, if the husband gives his consent for such an act then such act is no more considered as a crime. Therefore, women are treated as an aobject under adultery law. 2. Whether Sec 198(2) of the Code of Criminal Procedure, 1973 is unconstitutional being unjust, illegal and violative of fundamental rights. ARGUMENT ON BEHALF OF PETITIONER 1. The historical background, in which Sec 497 was framed, is no longer relevant in contemporary society. 2. Sec 497 IPC and Sec 198 CrPC by its very nature is arbitrary and violates Art 14 of the constitution as it deprives women of the right to prosecute an adulterous husband. It offends the requirement of equal treatment and discriminates on the basis of marital status. 3. Section 497 criminalizes adultery based on a classification made on sex alone, such a classification bears no rational nexus with the object sought to be achieved and is hence discriminatory. 4. Under Sec 497, it is only the male- paramour who is punishable for the offence of adultery. The woman who is pari delicto with the adulterous male, is not punishable, even as an ‘abettor”. 37 relationship the expectations that one has from the another. When both the spouses respect each other with equality and dignity then only the respect for sexual autonomy is established. This section denies the substantive equality as it provides that women are not able to give her free consent for the sexual acts in a legal order which considers them as a sexual property of their spouse. Therefore, section 497 is violative of article 14 of the Indian Constitution and it also violates the non discrimination clause of article 15 of the Constitution of India. This section also lays strong emphasis on the consent of the husband which leads to the subordination of women. Hence it clearly violates the article 21 of the Constitution of India. Adultery is no longer be a criminal offence:- A crime is committed against the society as a whole whereas adultery is a personal issue. Adultery does not fit into the ambit of crime as it would otherwise invade the extreme privacy sphere of marriage. However, adultery can be considered as a civil wrong and is a valid ground for divorce. Husband is not the master of his wife:- The judgment focuses on the fact that women should not be considered as the property of their husband or father anymore. They have equal status in the society and should be given every opportunity to put their stance forward. Section 497 is arbitrary:- In the whole of the judgment it was pointed out that nature section 497 is arbitrary. As husband can give his consent to allow his wife to have an affair with some other person. Hence, this section does not protect the ‘sancity of marriage’. This section preserves the proprietary rights of the husband that he has over his wife. This section does not allow the wife to file a petition against her husband. This section does not contain any provision which deals with a married man having an affair with unmarried women. JUDICIAL ANALYSIS In the recent case, the Supreme Court of India has struck down the section 497 of Indian Penal Code. The court has restricted the institution of marriage on which strong foundation of Indian society is based. This will lead to the ceasation of crimes related to adultery. This verdict leads to 40 the sexual anarchy. Adultery is no more considered as a criminal offence. It is only considered as a civil wrong and adultery can only be a ground for divorce. But the reasons are not so much convincing and hence this cannot become Lex Loci. If adultery is not considered as a crime then divorce on this ground would be an unamending chase. Criminal law is considered as a guardian of the moral principles of the Indian society. “If we start subjecting laws to our personal rationale, it would lead to chaos, as a counter narrative would always exist .” In the State of UP v. Deoman Upadhyaya , the Supreme Court founded that:- “ In considering the constitutionality of a statute on the ground whether it has given equal treatment to all persons similarly circumstanced, it has to be remembered that the legislature has to deal with practical problems. The question is not to be judged by merely enumerating other theoretically possible situations to which the statute may have been, but has not been, applied.” The motive of legislature behind this is to protect the women. Because of this reason, while drafting a new penal code in 1847, the Law Commission mentioned the liability of only male offender. However, it is on the discretion of the legislature to decide what acts comes under the crime and what act does not. Adultery also affect the children and associated family of the offending spouses and victim spouses. As divorce is the only option left, the children of the offending and victim spouses are left in the lurch. The current judgment does not provide for any remedies for those children who are born out of such adulterous marriage. Section 497 of Indian Penal Code act as deterrent so that the adulterer does not commit the same crime again. The law fails for its enforcement but it is successful in preventing the adultery. Since India is a semi feudal nation, the adjudication on the notion of western countries is not possible. There are various factors which are concerned with the socio-economic order of the country are needed to be considered. It was well observed by Justice Frankfurter in Trop vs Dulles “All power is, in Madison’s phrase, of an encroaching nature. Judicial power is not immune from this human weakness. It must always be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint on it is self-restraint. The Court must observe 41 fastidious regard for limitations on its own powers, and thus preclude the Court giving effect to its own notions of what is wise and politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorised the judges to sit on the wisdom of Congress or the Executive Branch.” As observed by the Supreme Court in Govt of Andhra Pradesh vs P Laxmi Devi , “Adjudication must be done within the system of historically validated restraints and conscious minimisation of the judges preferences “, and as held in State of Bihar vs Kameshwar Singh , “The legislature is the best judge of what is good for the people by whose suffrage it has come into existence.” The instant consequences will be that the suicide rates in marital relationships will increase now and then prosecution under Section 306 relating to abetment of suicide will take place. It would have been balanced if the section was amended instead of being struck down. The exclusion of women in this provision “delegitimizes the sexuality of women by careful erasure of it Instead, Section 198 of Code of Criminal Procedure, 1973 should have been struck down as it prevents wives from filing complaints against adultery . CONCLUSION The debate on the law of adultery in India has proceeded in two fixed, unmoving directions: while the Court justifies the provisions by implying that women are not fit to be given agency, men’s rights activists (vengefully) demand that the provision be reassessed to remove the woman’s immunity from prosecution. Both are excessively patriarchal ways of looking at the situation. The reserved judgment has the option of departing from these lines of argumentation and focusing on the main issue: the disempowerment of women in criminal law. It must be kept in mind that the deletion of these provisions does not mean that there are no legal consequences for engaging in adultery. These consequences need not be criminal, and a remedy may be found in civil law, where adultery already has a place . It is a ground for divorce in personal laws. Such an approach is also in conformity with the right to privacy and does not require the State to expend its resources. Cruelty as under Section 498A, along with the definition of domestic violence under the Domestic Violence Act, 2005 can cover the mental trauma caused to a woman by a husband’s adulterous relationship. 42