No Appeal for Votes In the Name of Religion
The year kicked off with the SCI ruling that candidates cannot seek votes on religious lines, not limited only to the candidate’s religion but also the religion of the voters.
In Abhiram Singh vs CD Commachen, a seven judge constitution bench in a 4:3 ruling held that an election will be declared annulled not only if the votes are sought in the name of the religion of the candidate but also when the candidate appeals for votes on the basis of the religion of the voters, candidate’s election agents or anyone else with the consent of the candidate appearing for the poll.
The SCI interpreted Section 123(3) of the Representation of the People Act. The bench was led by the then CJI, TS Thakur.
No Re-promulgation of Ordinances
A seven judge bench headed by the then CJI, TS Thakur and six other justices heard a case where the petitioner sought a definitive ruling on whether a 1989 Bihar law for taking control of the management of Sanskrit schools in the state which was passed through an ordinance several times was valid or not.
The SCI ruled that the government cannot legislate through ordinances repeatedly without placing them before the legislature. “The question of whether any rights, liabilities, obligations would survive an ordinance which had ceased to exist, would have to be tested against public interest and constitutional necessity,” the court had said.
Under Article 123 of the Constitution, the president is granted legislative powers to issue an ordinance when Parliament is not in session. The law, however, requires that an ordinance be approved by the Lok Sabha and Rajya Sabha within 6 months of its promulgation. Similar powers are granted to governors of states.
Right to Privacy is a Fundamental Right
One of the most important verdicts of the SCI delivered by a nine judge bench unanimously upholding privacy as a fundamental right. In the 547-page verdict, the SCI overruled certain landmark verdicts such as the MP Sharma case of 1958, ADM Jabalpur case, and the Kharak Singh case of 1961.
Out of the varied definitions given to privacy to highlight its importance, the court held that privacy at its core was about the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. The SCI ruled that privacy also connoted a right to be left alone. Privacy safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy.
The verdict was a landmark one for more than one reason and it is also slated to have an impact over several pending litigations before the apex court and several other high and lower courts.
Instantaneous Triple Talaq is Invalidated
One of the most talked about verdicts of the year was the one which also led the rumour mills buzzing about a uniform civil code being imposed.
The SCI intervened after several petitions asking it to examine the Muslim personal law which allowed a man to divorce his wife by pronouncing three talaqs at one go. This case was also accompanied with regular news reports that Muslim husbands were abandoning their wives at an alarming rate or were resorting to bigamy.
When the five judge bench started hearing the case, along with the question of triple talaq, the bench was also asked to hear the matter of polygamy and Nikah Halala which the court declined to interfere in.
The court in the ration of 3:2 held that instantaneous triple talaq was not a part of Muslim personal law and that was against the constitution. The court declared this form of divorce as illegal but was careful not to intervene in the realm of personal laws. Now, the government had proposed the Muslim Women (Protection of Marriage) bill, 2017, which aims to criminalize this form of divorce and makes it punishable with three years of imprisonment.
Laws Relating to the Arrest of a Foreign Ship
A bench led by Justice Rohinton Fali Nariman delivered an important verdict in relation to maritime laws, when the court held that arrest of a foreign ship for a maritime claim is permissible only if there is no change of ownership between the date when the claim arose and the date of arrest of ship.
The verdict shifted the focus of enforcement of a maritime claim from when it was filed to when the arrest was made. The judgment also laid down important guidelines relating to contracts which ruled that when a new contract is drafted over an existing one, the altercation must go at the root of the original contract.
The verdict will be a precedent for various maritime disputes to be heard by the court and contractual matters referred to the apex court.
Death Penalty of Nirbhaya Rapists Upheld
One of the verdicts which was the most awaited one from the SCI was the ruling on whether death penalty would be granted to the accused in the Nirbhaya gang rape case
In May this year, the SCI upheld the Delhi High Court and trial court decision to award death penalty to all four convicts in the December 16, 2012 gang rape and murder case. The execution of Mukesh (27), Pawan Gupta (20), Vinay Sharma (21) and Akshay Thakur (29) was made certain by the SC with only an option of mercy petition left to the President.
The SCI while upholding the death penalty stated that the devilish manner in which Nirbhaya was treated looked “like a story from a different world where humanity was inconceivable.”
The SCI ruled that aggravating factors had outweighed the mitigating factors and that the DNA, fingerprint and other scientific evidences were supportive of the ruling.
Justice Bhanumathi in her separate judgment stated, “It’s a tsunami of shock in the minds of the collective and destroyed humanity. Death for all four. Aggravating circumstances outweigh mitigating circumstances. If at all a case warrants death sentence, it’s this. Human lust was allowed to take demonic form.”
Dent on Jayalalithaa’s Glory and Associates Held Guilty
A month after Jayalalithaa passed away, the SCI held Sasikala, Ilavarasi and Sudhakaran as guilty in the disproportionate assets case and ordered them to surrender forthwith before the trial court concerned.
Though the case against Jayalalithaa abated, the SCI set aside the then AIADMK general secretary VK Sasikala's acquittal by the Karnataka High Court in the Jayalalithaa disproportionate assets case and "restored in full" the trial court conviction of September 2014.
Sexual Intercourse with Minor Wife is Rape
In a verdict that could save the lives of several child brides in India, the SCI read down Exception 2 in Section 375 of IPC and ruled that sexual intercourse with a minor wife amounts to rape. The court has stated that the exception will be read as "sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape".
Before the SCI verdict, the section did not find a man guilty of rape for having sexual intercourse with wife older than 15 years of age. As child marriage is a crime, this exception created conflict between laws.
The Protection of Children from Sexual Offences (POCSO) Act of 2012 defines 'children' as those aged below 18. It has specific provisions declaring that 'penetrative sexual assault' and 'aggressive penetrative sexual assault' against children below 18 is rape.
Justice Karnan Convicted for Defamation
A sitting High Court judge being sentenced to jail is not something that happens often in this country, but on June 12, Justice CS Karnan became the first sitting High Court judge to retire in absentia after he eluded the Supreme Court arrest order, and ended up being sentenced to six months in jail for contempt.
Justice Karnan walked out free last week from the Calcutta jail after serving his six months’ imprisonment. The order was passed by no less than seven senior-most judges in the top court and Director General of Police, West Bengal, was ordered to ensure the HC judge is made to serve the sentence.
The then Chief Justice of India J S Khehar, who was heading the seven-judge bench, had said that he wanted to send out a message loud and clear that judiciary will not hesitate to act against even one of its own.
The SCI sentenced the judge to jail after Justice Karnan alleged that the top court judges were corrupt and passed judicial orders against the SC judges even though the court had stripped him off his judicial powers before sentencing him.
A New System of Equality – Senior Designations in SCI
Indira Jaisingh, one of the senior advocates who had given up her senior advocate gown for a new system of senior designation of advocates, breathed a sigh of relief when the apex court introduced a new system for designating senior advocates by a committee headed by the CJI and other members being two senior judges, Attorney General and another member from the bar to decide. The court also ruled the same procedure for the High Courts too.
This was a major effort to streamline and bring in transparency into the process of designating advocates as “seniors”.
The court while delivering the verdict also applauded Jaisingh for her effort to bring in her more transparency into the system and so that complete value is given to the credibility, objectiveness and fairness of the system. This system of appointing a senior advocate was through a “strict process of scrutiny leaving no scope for any doubt or dissatisfaction in any matter.”
Freedom of Speech and Expression is Sacrosanct
Just when the country is caught in a confusion as to whether a movie should depict history accurately or can be subjected to the maker’s imagination, the SCI had ruled that freedom of expression was sacrosanct.
While dealing with a petition to ban the screening of a documentary ‘An Insignificant Man’ which is based on the life of Delhi Chief Minister, Arvind Kejriwal, and the court ruled that since freedom of speech and expression is a sacrosanct right, such rights cannot be ordinarily interfered with.
Rejecting the plea, the court declined to direct the Central Board of Film Certification to stay the release of the film in cinema halls across the country.
“The courts have to be extremely slow to pass any kind of orders in such situations and should allow a creative man to enjoy in writing a drama, philosophy and book of any kind or project it in on celluloid or theatre,” the top court said
The year kicked off with the SCI ruling that candidates cannot seek votes on religious lines, not limited only to the candidate’s religion but also the religion of the voters.
In Abhiram Singh vs CD Commachen, a seven judge constitution bench in a 4:3 ruling held that an election will be declared annulled not only if the votes are sought in the name of the religion of the candidate but also when the candidate appeals for votes on the basis of the religion of the voters, candidate’s election agents or anyone else with the consent of the candidate appearing for the poll.
The SCI interpreted Section 123(3) of the Representation of the People Act. The bench was led by the then CJI, TS Thakur.
No Re-promulgation of Ordinances
A seven judge bench headed by the then CJI, TS Thakur and six other justices heard a case where the petitioner sought a definitive ruling on whether a 1989 Bihar law for taking control of the management of Sanskrit schools in the state which was passed through an ordinance several times was valid or not.
The SCI ruled that the government cannot legislate through ordinances repeatedly without placing them before the legislature. “The question of whether any rights, liabilities, obligations would survive an ordinance which had ceased to exist, would have to be tested against public interest and constitutional necessity,” the court had said.
Under Article 123 of the Constitution, the president is granted legislative powers to issue an ordinance when Parliament is not in session. The law, however, requires that an ordinance be approved by the Lok Sabha and Rajya Sabha within 6 months of its promulgation. Similar powers are granted to governors of states.
Right to Privacy is a Fundamental Right
One of the most important verdicts of the SCI delivered by a nine judge bench unanimously upholding privacy as a fundamental right. In the 547-page verdict, the SCI overruled certain landmark verdicts such as the MP Sharma case of 1958, ADM Jabalpur case, and the Kharak Singh case of 1961.
Out of the varied definitions given to privacy to highlight its importance, the court held that privacy at its core was about the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. The SCI ruled that privacy also connoted a right to be left alone. Privacy safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy.
The verdict was a landmark one for more than one reason and it is also slated to have an impact over several pending litigations before the apex court and several other high and lower courts.
Instantaneous Triple Talaq is Invalidated
One of the most talked about verdicts of the year was the one which also led the rumour mills buzzing about a uniform civil code being imposed.
The SCI intervened after several petitions asking it to examine the Muslim personal law which allowed a man to divorce his wife by pronouncing three talaqs at one go. This case was also accompanied with regular news reports that Muslim husbands were abandoning their wives at an alarming rate or were resorting to bigamy.
When the five judge bench started hearing the case, along with the question of triple talaq, the bench was also asked to hear the matter of polygamy and Nikah Halala which the court declined to interfere in.
The court in the ration of 3:2 held that instantaneous triple talaq was not a part of Muslim personal law and that was against the constitution. The court declared this form of divorce as illegal but was careful not to intervene in the realm of personal laws. Now, the government had proposed the Muslim Women (Protection of Marriage) bill, 2017, which aims to criminalize this form of divorce and makes it punishable with three years of imprisonment.
Laws Relating to the Arrest of a Foreign Ship
A bench led by Justice Rohinton Fali Nariman delivered an important verdict in relation to maritime laws, when the court held that arrest of a foreign ship for a maritime claim is permissible only if there is no change of ownership between the date when the claim arose and the date of arrest of ship.
The verdict shifted the focus of enforcement of a maritime claim from when it was filed to when the arrest was made. The judgment also laid down important guidelines relating to contracts which ruled that when a new contract is drafted over an existing one, the altercation must go at the root of the original contract.
The verdict will be a precedent for various maritime disputes to be heard by the court and contractual matters referred to the apex court.
Death Penalty of Nirbhaya Rapists Upheld
One of the verdicts which was the most awaited one from the SCI was the ruling on whether death penalty would be granted to the accused in the Nirbhaya gang rape case
In May this year, the SCI upheld the Delhi High Court and trial court decision to award death penalty to all four convicts in the December 16, 2012 gang rape and murder case. The execution of Mukesh (27), Pawan Gupta (20), Vinay Sharma (21) and Akshay Thakur (29) was made certain by the SC with only an option of mercy petition left to the President.
The SCI while upholding the death penalty stated that the devilish manner in which Nirbhaya was treated looked “like a story from a different world where humanity was inconceivable.”
The SCI ruled that aggravating factors had outweighed the mitigating factors and that the DNA, fingerprint and other scientific evidences were supportive of the ruling.
Justice Bhanumathi in her separate judgment stated, “It’s a tsunami of shock in the minds of the collective and destroyed humanity. Death for all four. Aggravating circumstances outweigh mitigating circumstances. If at all a case warrants death sentence, it’s this. Human lust was allowed to take demonic form.”
Dent on Jayalalithaa’s Glory and Associates Held Guilty
A month after Jayalalithaa passed away, the SCI held Sasikala, Ilavarasi and Sudhakaran as guilty in the disproportionate assets case and ordered them to surrender forthwith before the trial court concerned.
Though the case against Jayalalithaa abated, the SCI set aside the then AIADMK general secretary VK Sasikala's acquittal by the Karnataka High Court in the Jayalalithaa disproportionate assets case and "restored in full" the trial court conviction of September 2014.
Sexual Intercourse with Minor Wife is Rape
In a verdict that could save the lives of several child brides in India, the SCI read down Exception 2 in Section 375 of IPC and ruled that sexual intercourse with a minor wife amounts to rape. The court has stated that the exception will be read as "sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape".
Before the SCI verdict, the section did not find a man guilty of rape for having sexual intercourse with wife older than 15 years of age. As child marriage is a crime, this exception created conflict between laws.
The Protection of Children from Sexual Offences (POCSO) Act of 2012 defines 'children' as those aged below 18. It has specific provisions declaring that 'penetrative sexual assault' and 'aggressive penetrative sexual assault' against children below 18 is rape.
Justice Karnan Convicted for Defamation
A sitting High Court judge being sentenced to jail is not something that happens often in this country, but on June 12, Justice CS Karnan became the first sitting High Court judge to retire in absentia after he eluded the Supreme Court arrest order, and ended up being sentenced to six months in jail for contempt.
Justice Karnan walked out free last week from the Calcutta jail after serving his six months’ imprisonment. The order was passed by no less than seven senior-most judges in the top court and Director General of Police, West Bengal, was ordered to ensure the HC judge is made to serve the sentence.
The then Chief Justice of India J S Khehar, who was heading the seven-judge bench, had said that he wanted to send out a message loud and clear that judiciary will not hesitate to act against even one of its own.
The SCI sentenced the judge to jail after Justice Karnan alleged that the top court judges were corrupt and passed judicial orders against the SC judges even though the court had stripped him off his judicial powers before sentencing him.
A New System of Equality – Senior Designations in SCI
Indira Jaisingh, one of the senior advocates who had given up her senior advocate gown for a new system of senior designation of advocates, breathed a sigh of relief when the apex court introduced a new system for designating senior advocates by a committee headed by the CJI and other members being two senior judges, Attorney General and another member from the bar to decide. The court also ruled the same procedure for the High Courts too.
This was a major effort to streamline and bring in transparency into the process of designating advocates as “seniors”.
The court while delivering the verdict also applauded Jaisingh for her effort to bring in her more transparency into the system and so that complete value is given to the credibility, objectiveness and fairness of the system. This system of appointing a senior advocate was through a “strict process of scrutiny leaving no scope for any doubt or dissatisfaction in any matter.”
Freedom of Speech and Expression is Sacrosanct
Just when the country is caught in a confusion as to whether a movie should depict history accurately or can be subjected to the maker’s imagination, the SCI had ruled that freedom of expression was sacrosanct.
While dealing with a petition to ban the screening of a documentary ‘An Insignificant Man’ which is based on the life of Delhi Chief Minister, Arvind Kejriwal, and the court ruled that since freedom of speech and expression is a sacrosanct right, such rights cannot be ordinarily interfered with.
Rejecting the plea, the court declined to direct the Central Board of Film Certification to stay the release of the film in cinema halls across the country.
“The courts have to be extremely slow to pass any kind of orders in such situations and should allow a creative man to enjoy in writing a drama, philosophy and book of any kind or project it in on celluloid or theatre,” the top court said
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