As per the majority view of the bench, by allowing for the sub-categorisation of scheduled castes in reservations, a wider protection for underrepresented groups will now be possible. The detailed judgment in the case, which runs into a total of 565 pages, consists of six separate concurring judgments. The majority view has overruled the 18 year-old, E.V. Chinnaiah v. State of A.P., [(2005) 1 SCC 394] judgment, wherein a five-judge bench of the Supreme Court had held that Scheduled Castes form a homogenous class and there cannot be any sub-division amongst them. The five judge bench had further held that such sub-classification of SC/STs is contrary to Article 341 of the Constitution.

The present judgment in the case had essentially considered two aspects while hearing the case:

(1) whether sub-classification within the reserved castes be allowed, and

(2) the correctness of the decision in E.V. Chinnaiah case

The Supreme Court has now overturned the decision in E.V. Chinnaiah case and permitted for the sub-classification within the SCs in State Of Punjab And Ors. v Davinder Singh And Ors. The said ruling will significantly impact states aiming to provide greater protection to certain castes that remain significantly under-represented despite reservations, compared to the more dominant scheduled castes. The court noted that “historical and empirical evidence indicates that Scheduled Castes are not a homogenous group.” It also clarified that although sub-classification is permissible, states cannot allocate 100% reservation to a sub-group. A safeguard has also been introduced as the Court has necessitated that the state justifies the sub-classification with empirical data showing the sub-group’s inadequate representation.

Significantly, the three day long hearings in the case had taken place in the month of February 2024, and the judgments had been reserved on February 9, 2024.

Historically background of the issue at hand:

In the year 1975, the Punjab government had issued a notification that divided its 25% Scheduled Caste (SC) reservation into two categories. The first category reserved seats exclusively for the Balmiki and Mazhabi Sikh communities, recognizing the two categories to be the most economically and educationally backward communities in the state. As per the notification, these communities were given first preference for reservations in education and public employment. The second category had then comprised the remaining SC communities.

This notification remained effective for nearly 30 years but faced legal challenges in 2004. A five-judge Constitution Bench struck down a similar law introduced by Andhra Pradesh in the year 2000. E.V. Chinnaiah had contested the validity of the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000 (AP Act 20 of 2000). This Act was enacted following recommendations from a committee led by Justice Ramachandra Raju, wherein the committee had identified specific groups within the Scheduled Castes listed under Article 341 of the Indian Constitution who had not benefited from reservations in admissions to professional colleges and appointments to state services. In the E.V. Chinnaiah case, the Supreme Court had invalidated the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000, holding in their judgment that it violated the right to equality. The Andhra law had created a detailed list of SC communities in the state and specified the quota of reservation benefits for each.

Through the E.V. Chinnaiah judgement, the bench comprising Justices N. Santosh Hegde, S.N. Variava, B.P. Singh, H.K. Sema, S.B. Sinha had held that sub-classification violated the right to equality by treating communities within the SC category differently. It emphasized that the SC list should be treated as a single, homogenous group because the Constitution classified certain castes in a Schedule due to their historical discrimination and untouchability. Therefore, these communities could not be treated differently from one another. The court also highlighted Article 341 of the Constitution, which grants the President the power to create a list of SC communities for reservation purposes. The five-judge Bench concluded that this provision meant states could not “interfere” with or “disturb” this list, including through sub-classification.

Two years after the Supreme Court ruling, in the year 2006, the Punjab and Haryana High Court had through their judgment in Dr. Kishan Pal v. State of Punjab had struck down the 1975 notification categorising the SC communities in Punjab. Only four months after the judgment striking down the notification was delivered by the Punjab and Haryana High Court, in October 2006, the Punjab government attempted to reinstate the law by passing the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006. This Act reintroduced the first preference in reservations for the Balmiki and Mazhabi Sikh communities. However, in 2010, the High Court once again struck down this provision. The Punjab government then appealed to the Supreme Court.

SC and reconsideration of the issue of the sub-categorization:

In 2014, the Supreme Court in Davinder Singh v. State of Punjab referred the appeal to a five-judge Constitution Bench to reconsider the E.V. Chinnaiah decision, as it involved examining various constitutional provisions. As the issue was regarding a constitutional interpretation, a bench of at least five judges was required to hear the matter.

In 2020, the Constitution Bench led by (retired) Justice Arun Mishra and comprising Justices Indira Banerjee, Vineet Saran, M R Shah and Aniruddha Bose had ruled that the E.V. Chinnaiah decision prohibiting sub-categorization required reconsideration. As per the decision delivered by the bench, the benefit of reservation was not percolating down to the neediest and poorest of the poor and the court and the state “cannot be silent spectators and ignore stark realities.” It was through the said judgment that the idea of Scheduled Castes being a homogeneous group was challenged as the Court had observed that there are “unequal within the list of Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes.” The bench had also recommended the larger bench to consider the bearing of the judgment in Jarnail Singh v. Lachhmi Narain Gupta, wherein a 5-judge bench had observed that the exclusion of the “creamy layer” from the Scheduled Castes for securing the benefit of reservation does not tinker with the Presidential List under Article 341. All the castes included in the list of Scheduled Castes are given the benefit of reservation even if they are sub-classified.

The CJI Chandrachud led seven judge bench hearing the present matter. Both the previous Davinder Singh judgment as also the E V Chinnaiah judgment had been delivered by a five-judge bench, hence a review by a larger seven-judge Bench of the Supreme Court.

Notably, the sub-classification strategy will affect not only the Balmikis and Mazhabi Sikhs in Punjab and Madiga in Andhra Pradesh but also the Paswans in Bihar, the Jatavs in UP, and the Arundhatiyars in Tamil Nadu. 

Observations of the Supreme Court:

Six broadly concurring judgments were delivered by the bench except on the contentious issue of “creamy layer” on which four of the even judges opined and two were silent. The details are as follows:

Chief Justice Chandrachud and Justice Misra: “Sub-classification is one of the means to achieve substantive equality”

The judgment authored by CJI Chandrachud begins by referencing Article 14 of the Constitution, which guarantees equality before the law and equal protection by the law. The judgment emphasizes that equality cannot be identical for individuals who are not similarly situated, underscoring the principle of substantive equality. The CJI states that the guarantee of equality means all persons in similar circumstances must be treated alike, ensuring parity of treatment under similar conditions. Equality does not imply sameness; the State can classify in a non-discriminatory manner. The doctrine of classification gives meaning to the guarantee of equal protection, focusing on equality of results or opportunities over equality of treatment.

Addressing whether sub-classification violates Article 14, the CJI asserts that Article 14 guarantees factual, not formal, equality. Thus, if individuals are not similarly situated concerning the law’s purpose, classification is permissible. This logic extends to sub-classification, allowing further classification of an already established class for a limited purpose if it is heterogeneous for another purpose.

The CJI also references Dr. B.R. Ambedkar’s ideology, highlighting Ambedkar’s view that applying a uniform criterion to identify the depressed class is inappropriate. Ambedkar noted that differences in tests of untouchability do not indicate differences in the conditions of the untouchables, as the underlying notion remains the same: it is beneath dignity to interact with or touch persons of certain castes. He observed that varying degrees of rigidity in practicing untouchability do not change the fundamental notion of the practice.

In conclusion, the following was held by CJI Chandrachud and Justice Misra through the judgement:

1. On the issue of subclassification within the Scheduled Castes, it was held that Scheduled Castes can be further classified if:

(a) there is a rational principle for differentiation

(b) if the rational principle has a nexus with the purpose of sub-classification

2. On the issue of Scheduled Castes being homogeneous, this judgement held that Scheduled Caste cannot be deemed to be a homogenous integrated class as enough empirical evidence indicates towards their being inequality within the Scheduled Caste itself. The judgment further provided that the inclusion of the Scheduled Castes within Article 341 does not automatically make lead to the formation of a uniform and internally homogenous class which cannot be further classified. Inclusion in Article 341 if for the purpose of identification of Scheduled Castes by distinguishing them from other groups.

3. The judgment further held that State in exercise of its power under Articles 15 and 16 is free to identify the different degrees of social backwardness and provide special provisions (such as reservation) to achieve the specific degree of harm identified. However, on the issue of scope of states on sub-classification of Scheduled Castes, the judgment held that the exercise of sub-classifying by the state can only be undertaken on the basis of quantifiable and demonstrable data bearing on levels of backwardness and representation in the services of the State. The judgment specifically stated that the State must prove that the group/caste carved out from the larger group of Scheduled Castes is more disadvantaged and inadequately represented. The judgment also clarified that any such a model that excludes some Scheduled Castes from the benefit will be unconstitutional.

Justice BR Gavai: “Duty of the state to give preferential treatment to the more backward communities”

Justice B.R. Gavai, in his concurring judgment, begins by discussing the historical emergence of Scheduled Castes and Scheduled Tribes in the Constitution of India. He also acknowledges the movements led by B.R. Ambedkar against the dominant caste to combat the discrimination, exclusion, and mistreatment faced by marginalized communities.

As per J. Gavai, Dr. Ambedkar stressed the need for a formula that would balance equality of opportunity with providing reservations for communities that had been historically excluded from administration. He noted that the equality of opportunity must be harmonized with the demands of certain communities. It was highlighted by B.R. Ambedkar that due to historical factors, the administration had been dominated by one or a few communities, a situation that should be rectified to allow others an opportunity in public services. Therefore, Ambedkar argued that a qualifying term like “backward” was necessary to make reservations workable. He justified the Drafting Committee’s use of the word “backward,” stating that determining what constitutes a backward community would be the responsibility of each local government.

After analysing the significant judgments of the Supreme Court that have contributed to the evolution of reservation and the observations made by the judges in those judgments, J. Gavai stated in unequivocal terms held that preferential treatment for members of backward classes alone can mean equality of opportunity for all citizens. As provided in the judgment, if the State, in fulfilling its duty, discovers that certain groups within the Scheduled Castes and Scheduled Tribes are underrepresented while only a few groups are fully benefiting from the reservations, the State cannot be prevented from providing more preferential treatment to these underrepresented categories. As per J. Gavai’s view, doing the same would not interfere with the Presidential List of Scheduled Castes.

In his judgment, J. Gavai addresses the ground realities faced by marginalised communities in India, noting that even among the Scheduled Castes, certain groups have endured more inhumane treatment over centuries compared to others. He asserts that categories within the Presidential List that have already benefited significantly from reservations should not oppose the State’s provision of special treatment to those who have been deprived of such benefits, especially when it does not diminish their existing benefits. J. Gavai concludes that to achieve true equality, as envisioned by various judicial pronouncements, sub-classification among the Scheduled Castes to provide more beneficial treatment is entirely permissible under the Constitution.

In conclusion, the following was held by J. Gavai through the judgement:

1. On the issue of the exclusive power of the President to identify SCs under Article 341 (2), J. Gavai stated that Articles 341 and 342 are only with regard to identification of the Scheduled Castes and Scheduled Tribes. Articles 341 and 342 read with clauses (24) and (25) of Article 366 of the Constitution provide that those castes included in the Presidential List shall be deemed to be Scheduled Castes and Scheduled Tribes for the purposes of the Constitution. However, the aforementioned Articles 341 and 342 do not deal with reservation.
2. Any exercise through which the State decides to provide 100% of the reservation for Scheduled Castes to one or more categories enlisted in the Presidential List in that State to the exclusion of some categories, the same would not be permissible. J. Gavai has provided that there are various judicial pronouncements that have emphasized that a reasonable classification is implicit in the trinity of Articles 14, 15 and 16 of the Constitution. Therefore, the same standards and benchmarks can be employed if somebody approaches the Court with the prayer to examine as to whether such a classification is reasonable or not.
3. On the issue of Scheduled Castes being a homogenous group, J. Gavai has held the same to be untrue, by emphasising that the hardships and the backwardness which certain categories within the Scheduled Castes have suffered historically would differ from category to category.
4. On the issue of standard for sub-classification of Scheduled Castes, J. Gavai held that in cases where the State makes a classification, it will have to be established that the group carved out from the larger group is more disadvantageous and not adequately represented. The classification would also have to be supported by empirical data. It was emphasised that the result of classification is to be to provide more preferential treatment to this more disadvantageous and less represented group, and the ultimate object would be to achieve real equality among all the sub-groups in the larger group.

Even though the only judgment whose correctness in question was E.V. Chinnaiah and the only issue of contention of the sub-classification of Scheduled Castes, the judgement of J. Gavai also speaks of the application of creamy layer to the Scheduled Castes. Justice Gavai noted that since the Constitution recognizes the Scheduled Castes and Scheduled Tribes as the most backward sections of society, the criteria for excluding individuals from affirmative action within these categories should differ from those applied to other classes. Providing instances, J. Gavai said that a person from such a category who attains a position like that of a peon or sweeper through reservation still remains socially, economically, and educationally backward. However, those who have benefited from reservations and have risen to high positions in life can no longer be considered socially, economically, and educationally backward to continue availing affirmative action benefits. Having reached a certain stage, they should voluntarily relinquish these special provisions to allow more deserving and needy individuals to benefit.

1. Based on this, Justice Gavai, therefore, opined that the State must develop a policy to identify the creamy layer within the Scheduled Castes and Scheduled Tribes to exclude them from affirmative action benefits. In his view, this is the only way to achieve true equality as envisioned by the Constitution. (It is to be noted that this is only an observation and cannot be implemented as the issue in contention of the present case did not involve any question of implementing the creamy layer principle to the SC.)

Justice Vikram Nath: “sub-classification by the State to be supported by empirical data”

In his judgment, J. Nath stated that he was in agreement with the reasons and conclusions arrived at in the opinions of CJI Chandrachud and J. Gavai.

In conclusion, the following was held by J. Nath through the judgement:

2. The judgment in V. Chinnaih case stands overruled and that sub-classification within Scheduled Castes was permissible.
3. Any exercise involving sub-classification by the State must be supported by empirical data.
4. Nath opined that ‘Creamy layer’ principle to be applicable to the Scheduled Castes and Scheduled Tribes, and that the criteria for exclusion of creamy layer for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes. (It is to be noted that this is only an observation and cannot be implemented as the issue in contention of the present case did not involve any question of implementing the creamy layer principle to the SC.)

Among the four of the seven judges, Justice Mithal is possibly the most regressive when it comes to identifying himself one generation as enough to classify privilege as “creamy layer!

Justice Pankaj Mithal: “It is to achieve the social objective of bringing every citizen on equal level that provision for reservation came to be made”

In his judgment, J. Mithal stated that the issue of sub-classification of scheduled castes has been appropriately answered by the Chief Justice and Justice Gavai in their separate opinions. However, since the matter in issue is basically concerning “reservation”, he wished it appropriate to pen down my own views separately. As a part of his judgment, he also wrote about the ramifications of reservations.

J. Mithal primarily focussed on the objective behind bringing in the provision of reservation for the backward class of persons and scheduled castes as well as scheduled tribes through the path of the Constitution of India. He also provided a summary of the constitutional amendments carried out for the purposes of extending the benefit of reservation to the reserved categories would reveal that the Constitution has been amended as many as 9 times in order to implement the reservation policy in a fair and impartial manner so that the “so-called depressed classes” may be elevated at par with the forward classes.

Regarding the impact of reservation policies and their implementation in bringing the most marginalized groups into the mainstream, J. Mithal notes that regardless of the success or failure of these policies, one certainty is that they have significantly burdened the judiciary at all levels, especially the High Courts and the Supreme Court, with extensive litigation. This burden could have been avoided if a robust reservation policy with a clear vision had been established under the constitutional provisions from the outset, instead of making piecemeal changes over time.

As per the judgment, J. Mithal observed experience have shown that every selection and appointment process in government services and higher education admissions is often challenged in court due to alleged misapplication of reservation rules, and these legal challenges frequently cause significant delays in appointments and admissions, leaving vacancies unfilled for extended periods and leading to stop-gap or ad-hoc appointments, which in turn generate more litigation. Despite considerable efforts by all branches of the State to streamline and perfect the reservation process, the lack of a visionary approach for uplifting backward castes has created more difficulties than it has resolved.

Pursuant to this, J. Mithal highlights that reservation benefits often do not reach the most deprived and marginalized individuals. Statistics reveal that about 50% of students from the most backward classes drop out before Class V, 75% before Class VIII, and up to 95% before high school. Consequently, only children from relatively affluent or urbanized castes benefit from higher education and reservation advantages. It is clarified by J. Mithal that by highlighting these points, he is not suggesting for ending the upliftment efforts or abandoning the reservation policy. Rather, J. Mithal is pointing to the challenge lies in how to effectively promote equality and development and how the government has relied on caste for upliftment rather than focusing on vocational or socioeconomic conditions to identify those truly in need. In his opinion, this approach has led to complications such as sub-classification within reserved castes, where the relatively better-off within these groups often occupy most of the reserved vacancies, leaving the most disadvantaged with minimal benefits.

Justice Mithal – in seemingly unwanted references – comments that primitive India had no caste system, and the varna system that was encouraged by the Bhagwat Gita and was based on occupation, was misinterpreted as a caste system. After independence, efforts to create a casteless society were undermined as the reservation policy, intended to uplift depressed and backward classes, inadvertently reinforced caste divisions. According to him, once privileges like reservations are granted, they tend to expand and become entrenched. Thus, the judgment of J. Mithal states that while reservation aims to help OBCs, SCs, and STs, its implementation has revived casteism rather than eliminating it.

In conclusion, the following was held by J. Mithal through the judgement:

1. On the issue of sub-classification within the Scheduled Castes, J. Mithal stated that sub-classification has become the order of the day to uplift the backward of the backwards within the Scheduled Castes.
2. On the issue of there being a violation of Article 341(2) of the Constitution in sub-classification within the scheduled caste, J. Mithal held the same to not be the case as by such sub-classification no caste is being included or excluded from the list of scheduled castes.
3. It was opined by J. Mithal, in addition to the observations made by J. Gavai in his judgment that the caste to which this person belongs may not be excluded as a whole from the benefit of reservation but certainly the family which has obtained the benefit once shall not be allowed to take advantage of reservation in the next generation. Accordingly, J Mithal stated that the reservation to such families has to be confined to one generation only. He further gave the observation that the policy of reservation, as enshrined under the Constitution and by its various amendments, requires a fresh re-look and evolvement of other methods for helping and uplifting the depressed class or the downtrodden or the persons belonging to SC/ST/OBC communities. (It is to be noted that this is only an observation and cannot be implemented as the issue in contention of the present case did not involve any question of re-looking reservation.)

Justice Satish Chandra Sharma: “sub-classification by the State must be supported by empirical data that underscores the more ‘disadvantaged’ status of the sub-group”

In his judgment, J. Sharma stated that he was in agreement with the lucid and detailed opinion(s) of CJI Chandrachud and J. Gavai.

In conclusion, the following was held by J. Nath through the judgement:

1. Validity of sub-classification within Scheduled Castes held to be constitutionally permissible.
2. Any exercise involving sub-classification by the State must be supported by empirical data that ought to underscore the more ‘disadvantaged’ status of the sub-group to which such preferential treatment is sought to be provided vis-à-vis the Constitutional Class as a whole.
3. Nath opined that he was in agreement with J. Gavai regarding the issue of ‘Creamy layer’ principle to be applicable to the Scheduled Castes and Scheduled Tribes, and that for the full realisation of substantive equality inter se the Scheduled Castes and Scheduled Tribes, the identification of the ‘creamy layer’ qua Scheduled Castes and Scheduled Tribes ought to become a constitutional imperative for the State. (It is to be noted that this is only an observation and cannot be implemented as the issue in contention of the present case did not involve any question of implementing the creamy layer principle to the SC.)

The lone dissenting judgment in this case was delivered by Justice Bela Trivedi. This has been analysed later in this analyses.

Arguments put forth in the Supreme Court:

During three days of hearings, the petitioners presented their arguments over two days, while the respondents had one day to make their case. A brief rejoinder was submitted at the end of the third day, after which the judgment was reserved. Although the union and state governments usually oppose each other on such issues, they, along with the petitioners, united in support of sub-classifications within the reserved categories. They contended that the court’s jurisprudence had evolved to acknowledge that some groups within the legally recognized backward classes are more disadvantaged than others. The detailed arguments are as follows:

By the Petitioners-

1. Need for sub-classification to ensure adequate representation: The petitioners argued that sub-classification was essential to ensure adequate representation of the most disadvantaged groups within the Scheduled Caste category. They maintained that it addressed the issue of varying degrees of backwardness within the category. The petitioners highlighted the diversity within the Scheduled Castes and the different levels of discrimination faced by these groups, highlighting those occupational differences contributed to the formation of subclasses within the broader backward class. Furthermore, the petitioners argued that although Scheduled Castes share a history of discrimination, they are not a homogeneous group. Each caste within the category experiences varying degrees of discrimination and differing levels of economic, social, and educational development.

2. Incorrect application of rationale in V. Chinnaiah judgment considering Indra Sawhney case: The petitioners pointed out that the logic applied in E.V. Chinnaiah case, in light of the Indra Sawhney judgment, was flawed. It is essential to note that in the E.V. Chinnaiah case, the Andhra Pradesh government’s reliance on Indra Sawhney judgment was rejected as the bench in Chinnaiah had noted that Indra Sawhney allowed sub-classification only for Other Backward Classes, not for SCs/STs.

3. State government’s best positioned to assess community backwardness: In both V. Chinnaiah case and Davinder Singh case, the Andhra Pradesh and Punjab governments had, respectively, enacted laws creating quotas for specific castes within the Scheduled Caste groups. The petitioners asserted that states were best positioned to assess the backwardness of a community at the local level. It was also submitted by the petitioners that since sub-classification did not involve creating or identifying new castes within the presidential list, the same does not go against the mandate of the Constitution of India. That power to subscribe Schedule Castes remained with the president. Similarly, inclusion or exclusion from the list was a power reserved for Parliament, while the states were merely adjusting the distribution of available resources to ensure those who had not adequately benefited from reservations could do so.

Notably, Article 341 (2) provides that “Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.”

4. Article 16 (4) allows for sub-classification: The petitioners had also underscored the language that had been used in Article 16(4) of the Constitution, and contending that the Article allows the State to provide reservations for backward classes who are not “adequately represented” in State services. As the phrase used is “adequately” and not “equally”, the petitioners had argued that there was no obligation to provide the same opportunities to every community in the Presidential list. They further argued that under Article 16(4) of the Constitution, “state” includes all local governments.

In addition to the abovementioned, the petitioners had also highlighted the recently introduced Article 342A of the Constitution, through which States and Union Territories have been specifically empowered to maintain a list of Socially and Economically Backward Classes which may be different from the Presidential list.

5. Preferential treatment does not impact reservation, is rather a concept akin to creamy layer: In another crucial 2018 ruling in Jarnail Singh v. Lachhmi Narain Gupta, the Supreme Court bench led by Justice Nariman had upheld the “creamy layer” principle within the SCs, introducing an income ceiling for reservation eligibility, which was applied to SC promotions for the first time in 2018. During the hearing, the petitioners had argued that sub-classification within the SCs was similar to applying the creamy layer formula, where instead of excluding the better-off castes from the Scheduled Caste list, preferential treatment is given to the most disadvantaged castes. It was the opening provided by this judgement that led to four of the seven judges in the present case to bring up the issue of creamy layer even when it was not a specific issue at all argued by the petitioners before the court.

6. Failure to apply the twin test of reasonable classification in V. Chinnaiah case: The petitioners argued that the Supreme Court’s ruling in E.V. Chinnaiah failed to apply the twin test of reasonable classification before concluding that sub classification within SC/STs would violate Article 14. As per the petitioners, the court had overlooked the existence of social data supporting its conclusion. This was in contrast to the detailed empirical data on backward classes presented in the Investigative Report of Justice Ramachandra Raju, which the High Court had originally relied upon when considering E.V. Chinnaiah. 

By the Respondents-

1. Schedule castes deemed a homogeneous group: According to the respondents, Article 341(1) establishes homogeneity by grouping diverse castes into a single “Scheduled Class.” Supporting the Supreme Court’s judgment in E.V. Chinnaiah, it was argued by the respondents that despite differences among castes within the Scheduled Caste list, they are “deemed” a homogeneous group under the Constitution of India. As per the respondents, the same was done because they share a commonality of discrimination and backwardness, as was also marked by their inclusion in the presidential list for Scheduled Castes. Thus, any differences are overshadowed by the constitutional framework. Furthermore, the respondents had argued that the purpose of Article 341 was to highlight the common thread of discrimination and backwardness across diverse groups within the SCs, whether social, educational, or otherwise.

2. President power to identify SCs under Article 341 (2): The respondents asserted that the presidential list of Scheduled Castes, which includes state-specific entries, is immutable and only the president has the authority to identify castes for inclusion under Article 341(2). Any changes to this list, such as inclusion or exclusion of castes, fall under the jurisdiction of Parliament, not the state governments. While state governments may be consulted, they lack the power to create sub-classifications independently. Sub classification authority is exclusively within the domain of Parliament as stipulated by Article 341(2). Although state governments can raise concerns about new identifications, they must do so through proper channels.

3. Violation of Article 16(2): The respondents contended that while Scheduled Castes are presumed to be backward, an individual caste cannot be treated as a class under Article 16(4). Enacting laws for specific castes within the Scheduled Caste lists would, they argued, violate Article 16(2).

4. Sub-classification undermines reservation: Another argument put forth was that sub classification would render reservations ineffective for other subclasses within the SC category, as it would prevent a unified implementation of benefits. This would undermine the purpose of reservations.

Creamy layer – Is it another way to exclude? 

Arguably, two historical and contemporary realities ought not to permit the applicability of the criterion of “creamy layer” to the SCs. Articles 15(4) and 16(4) of the Constitution guarantee affirmative action to the socially and educationally backward classes of society by the state. While Article 15(4) makes special reference to SCs and STs, the term backwardness subsumes SC and STs in Article 16 (4).

In defining social backwardness, the social impediments caused by the practice of untouchability and the consequent educational, and social backwardness, this phenomenon has given rise to, are duly recognised. While enacting these Articles of the Constitution -given the rigid caste system existing in the country—Constitution framers observed that even though economic and educational mobility of the SCs would be possible by reservation and other affirmative action by the state to a small beneficiary segment of SCs, this will not bring in social mobility for the same class. Hence, the creamy layer which by definition presumes not only relative better economic and education status, but also social status, should not or cannot be applied for the SCs. This was the rationale.

This also has a flip side. This social predicament of the SCs’ perpetual social immobility precludes the benefits of reservation perpetuating to a tiny class within the SCs without allowing it to percolate further down, hence creating a vested interest against the application of creamy layer to the SC category.

Denying adequate representation?

This pertinent question which would eventually find an answer in the argument of “creamy layer,” does not, however, provide a satisfactory answer for the negative implications of such an exclusion of the creamy layer within the SCs for reservation/affirmative action. This is about the emergence of an existing situation which is already witnessing a lack of suitable SC candidates in the middle and higher cadres. This ‘dearth of suitable candidates’ would multiply if the post in the previous cadre is not filled due to the application of the creamy layer principle. This would then increase the backlog without fulfilling the reservation or making the post general category for want of a suitable SC candidate.

Thus it would lead to inadequate representation overall that would defeat the very purpose of Article 16(4) which urges states to appoint backward classes which aren’t adequately represented. Hence while there is much discussion among privileged sections on the question of “creamy layer” among SCs, the stated purpose of introducing the creamy layer gets defeated by its execution and the same principle is manipulated by the forward caste for their benefit. In this era of neoliberalism and increasing withdrawal of the State from employment sectors, such a creamy layer policy would be a recipe for the regression of the rights of Dalits.

Both these questions of principles of SC backwardness and the pragmatic questions of retaining the opportunity for the next in the ladder ought to have been adequately addressed by the SC before invoking the creamy layer principle in deciding of sub-classification. The SC has unnecessarily passed its opinions and judgements without dealing with or answering the above Constitutional issues satisfactorily.

In fact, as stated before, the question of the creamy layer for the SCs was not before the bench at all.

Multiple opinions or directions?

Not only did the judges of the bench not answer the basic Constitutional questions that arose out of bringing in or applying the creamy layer category to the SCs, they also provided different solutions leaving the implementing authorities perplexed about what is to be followed. This could also pave the way for a problematic implementation of this verdict.

For example, the leading judgement by the CJI and Justice Mishra deliberates about the applicability of the creamy layer to the SCs and stops at underlining the understanding of the Indira Sawhney judgement on the issue. The Sawhney judgement had clearly held that the creamy layer did not apply to the SCs since their social mobility was not possible despite economic and educational mobility induced by reservation. The conclusion and direction given by the CJI and Justice Manoj Mishra do not have any reference to creamy layer at all!

The case for the applicability of creamy layer to the SCs is forcibly argued by another senior and the only Scheduled Caste judge on the bench, Justice BR Gavai. He concludes:

“…that the finding of M Nagaraj, Jarnail Singh and Davinder Singh to the effect that creamy layer principle is also applicable to Scheduled Castes and Scheduled Tribes lays down the correct position of law.”

Justice Gavail, however, gives some concession to the SCs by saying:

“that the criteria for exclusion of the creamy layer from the Scheduled Castes and Scheduled Tribes for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes.”

Justice Vikram Nath who concurs with CJI in the rest of the matter, takes the side of Justice Gavai by stating:

“I am also in agreement with the opinion of Brother Justice Gavai that the ‘creamy layer’ principle is also applicable to Scheduled Castes and Scheduled Tribes, and that the criteria for exclusion of creamy layer for the purpose of affirmative action could be different from the criteria as applicable to the Other Backward Classes.”

Justice Satish Chandra Sharma also follows Justice Gavai by stating:

“However, on the question of applicability of the ‘creamy layer principle’ to Scheduled Castes and Scheduled Tribes, I find myself in agreement with the view expressed by Justice Gavai i.e., for the full realisation of substantive equality inter se the Scheduled Castes and Scheduled Tribes, the identification of ‘creamy layer’ qua Scheduled Castes and Scheduled Tribes ought to become a constitutional imperative for the State.”

It is Justice Pankaj Mittal who goes several steps ahead in this pursuit of excluding SCs from the ambit of reservation. He states in his judgement that:

“The reservation, if any, has to be limited only for the first generation or one generation and if any generation in the family has taken advantage of the reservation and have achieved higher status, the benefit of reservation would not be logically available to the second generation; and (iv) It is reiterated that periodical exercise has to be undertaken to exclude the class of person who after taking advantage of reservation has come to march, shoulder to shoulder with the general category.”

By this logic, even sons and daughters of a D grade employee who would have got the job due to reservation shall not be qualified for the benefits of reservations in future!

Dissenting Judgement of Justice Bela Trivedi:

J. Trivedi, in her dissenting judgment, questioned the reference through which the present case was being heard by the Supreme Court. The doctrines of binding Precedents and Stare decisis, as well as judicial discipline and propriety developed over the years, require that a smaller Bench follows the decision of a larger Bench. If the smaller Bench has doubts or disagreements with a decision of a larger Bench, it may refer the matter for reconsideration to the larger Bench, but only after providing reasons and justification for why it could not agree or follow the earlier decision. Such disagreements must be based on justifiable reasons, such as the earlier decision being manifestly wrong or substantial changes in the contextual values that led to the earlier view. A casual exercise of referring the matter to a larger Bench without recording reasons or simply because the later view seems more reasonable can create legal uncertainty and confusion, which should be avoided.

According to her, three-bench referred to the larger Bench without providing any reason, much less a cogent one, as to why it could not agree with the decision in E.V. Chinnaiah, which was delivered by the Constitution Bench. It was highlighted by her that the law established by a Constitution Bench and upheld for 15 years was questioned and unsettled by the three-judge Bench through a very brief and perfunctory order lacking any reasoning.

Referring to the case at present, she stated that the present reference should not have been entertained by the subsequent five-judge bench in Davinder Singh case, which was then referred to the seven-judge bench.

In conclusion, the following was held by J. Trivedi through the judgement:

1. On the issue of the reference made against the V. Chinnaiah case, which led to the present hearing, J. Trivedi held that the three-judge bench in the Davinder Singh case should not have doubted and referred the matter to the larger bench without providing any reasons, much less cogent ones, for their disagreement, thereby disregarding the well-settled doctrines of Precedents and Stare decisis.
2. Regarding the exclusive power of the President under Article 341 to identify and notify “Scheduled Castes” and the notion of Scheduled Castes as a homogenous group, the judgment stated that the etymological and evolutionary history and background of the term “Scheduled Castes,” along with the Presidential orders issued under Article 341, make the “Scheduled Castes” a homogenous class that cannot be altered by the States.
3. On the issue of the States’ legislative competence to enact laws providing for reservation, J. Trivedi stated that the States do not have the authority to give preferential treatment to a particular caste or castes by dividing, subdividing, subclassifying, or regrouping the castes, races, or tribes listed as Scheduled Castes in the notification under Article 341. The judgment emphasized that under the guise of providing reservation or taking affirmative action for the weakest sections of society, the State cannot modify the Presidential List or tamper with Article 341 of the Constitution.
4. Trivedi held that the power conferred upon the Supreme Court under Article 142 cannot be used to supplant the substantive law applicable to the case under consideration. According to her, even with its broad scope, Article 142 cannot be employed to construct a new framework where none existed before, by disregarding explicit statutory provisions related to the subject, and thereby achieving indirectly what cannot be achieved directly. The State’s action, even if well-intentioned and affirmative in nature, cannot be validated by the Supreme Court under Article 142 if it violates specific provisions of the Constitution.

The complete judgment can be read as below:

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The post In a historic verdict, SC allows sub-classification within Scheduled Castes but makes regressive comments on creamy layer appeared first on SabrangIndia.

It is to be noted that while the Maharashtra Special Public Security Bill was being introduced avowedly to tackle “urban naxals”, the term has been in usage from the Indian ultra-right as politically stigmatising and defiling term used by proto-fascist forces to criminalise protest and dissent, jail writers, academicians, activists and opposition Leaders especially. The said weapon has been, even prior to the year 2014, has been weaponised against Adivasis and Dalits, who protest against the unjust anti-minority policies of the state.

As the bill became public, experts and lawyers referred to the same as draconian and a dangerous piece of legislation that is being brought in to further supress dissent and cause alarm amongst the citizenry. Notably, the justification being offered for bringing in the bill is that similar versions of the Public Security Act currently are currently in force in Chhattisgarh, Telangana, Andhra Pradesh and Odisha. However, the state of Maharashtra already has the Maharashtra Control of Organised Crimes Act (MCOCA, 1999) under which several abusive prosecutions have been launched. Now, as this suppressive bill looms like a sword over the people of Maharashtra, the insistence of introducing more such that curb the rights of freedom of expression, movement, association (Article 19) and right to life (Article 21) and equality before the law (Article 14) in other states is no justification for Maharashtra, a rather progressive state, for enacting such a law.

Another reasoning that is being offered to bring in the MSPS Bill is that it will provide more effective prevention of certain unlawful activities of individuals and organisations. However, with the newly enforced Bharatiya Nyaya Sanhita, 2023 bringing in offenses such as “terrorist activities” (Section 113), “organised crimes” (Section 111) and “petty organised crimes” (Section 112) into the criminal laws governing the country, a separate MSPS bill was not required at all. Through the BNS, provisions of the Unlawful Activities (Prevention) Act and MCOCA have already been centralised, ensuring multiple tools in the land of a State and Police to use against its own citizens, raising questions over the necessity of bringing in the said bill.

Citizens for Justice and Peace, Mumbai, in consultation with experts and advocates, has dissected the said bill and its impact on the citizens.

Problematic Provisions of MSPS 2024

The draft MSPS Bill of 2024 has extremely vague, broad and therefore problematic definitions of “an unlawful activity” ((Section (2) (f) (i) to (vii)).  This loose definition is liable to malicious misuse. For instance, the interpretation of the ((Section (2) (f) (i)) phrase …” which constitutes a danger or menace to public order, peace and tranquillity” has been left open for interpretation, with potential for misuse. The usage of the word “menace” in the definition in itself problematic as the term “menace” is not defined anywhere in the law. It is crucial to highlight that the dictionary meaning of the word means, dangerous act of person, and leaves it open to the authorities to bring anything under the Act according to their discretion and penalise the ones being targeted. (They can say cooking on streets is a menace to public and arrest people).

This vagueness of definitions to make and include undefined “acts” as criminal acts is extremely problematic. In any law, any criminal act should be well defined and should not be left to be interpreted loosely by the police. Unfortunately, or rather consciously, this practice has been done away with in order to get away with accountability.

In addition to this, the definition of criminal act under Section 2(f) describes unlawful activity as:

As can be seen in the above provided definition, no concrete ambit is provided, and only vague words are used to define the nature of the acts that can be deemed as unlawful activities by the authorities. The law tends to give arbitrary powers to the police and it is an open secret that the political party in power is many times misusing police authority.

In lines with certain special legislations as well as state legislations, Section 5(1) (2) of the MSPS Bill provides for the setting up of the “Advisory Board” set up under the Act to adjudicate on the Actions of the State Government, police and Administration. Curiously, as per the said provision, the Advisory Board is required to be consisting of “three persons are, have been, or are qualified to be appointed as Judge of the High Court”, which means that existing retired or “non appointed officials or lawyers” also qualify to be a part of the Advisory Board. Since the Advisory Board is to be formed by the state government itself, one need not use their imagination to think of the ways in which the said provision can be used (or misused).

Section 9, through sub-section 1, provides draconian and arbitrary powers to the administration and the Police (DM or Police Commissioner) to take possession of or seize any notified area an evict persons from that premise (if women and children live there “reasonable time” is the only protection given to them!). Moreover, Section 10 (1) extends this arbitrary power to seize moveable properties, monies etc within this seized property making this one more power given to arbitrary use.

As per Section 12 of the draft MSPS Bill also denied those arrested any recourse of law at district level, and declares the High Court and Supreme Court as proper forums to file any petition to challenge action against this law. This militates against the four-tier system of Justice Redressal as laid down in the Indian Constitution. The reasoning behind the same remains to be clarified.

Under Sections 14 and 15 of the MSPS Bill, protection has been granted to every Police Officer and District Magistrate (bureaucrat) to be penalised or held accountable for any strictures are passed by the High Court or Supreme Court on misuse of prosecution, as the said two sections state that no actions can be initiated against them.

Dangers of New Bill (MSPS Act) in the face of existing BNS, 2023, UAPA, 1967 & PMLA, 2002

Various sections in the BNS, 2023 including Section 152, which reintroduces ‘Sedition’ under IPC 124-A and has been described by experts as ‘Sedition Plus’, Section 113, which criminalises terrorist acts, and Section 111, which brings in organised crimes, give arbitrary powers to the authorities to take action against those individuals who commit actions deemed to be against national integrity and national security.

CJP would specifically like to highlight Section 152 of the BNS, which states that  “acts that are endangering sovereignty, unity and integrity of India, purposefully or knowingly, by words, either spoken or written, or by science, or by visible representation, or by electronic communication or by use of financial means or otherwise, excites or attempts to excite cessation or armed rebellion or subversive activities, or encourages feeling of separatist activities, or endangers sovereignty or unity and integrity of India’ or indulges in or commits any such acts shall be punished with imprisonment for life or with imprisonment which may extend to 7 years, and shall also be liable to fine.” While being vague and broad by itself, the MSPS Bill also bears an uncanny resemblance to the said provision.

Additionally, Section 113 (1) of the BNS, 2023, which covers under its ambit anyone who does any act with the intent to threaten or likely to threaten the unity, integrity, sovereignty, security, or economic security of India or with the intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country, mirrors Section 15 of the UAPA. The only difference is that it deals with acts committed in a foreign country as well.

Similarly, Section 113 (2) that deals with committing of such a terrorist act that results in death or otherwise, mirrors Section 16 of the UAPA verbatim. Section 113 (3), which covers those who conspires or attempts to commit, or advocates, abets, advises or incites, directly or knowingly facilitates the commission of a terrorist act or any act preparatory to the commission of a terrorist act, mirrors Section 18 of the UAPA verbatim. Section 113 (4), which deals with those who organise or cause to be organised any camp or camps for imparting training in terrorist act mirrors Section 18A of the UAPA verbatim. Section 113 (5) states that any person who is a member of an organisation which is involved in terrorist act mirrors Section 20 of the UAPA verbatim.

Section 113 (6), which covers the offense of voluntarily harbours or concealing those such person that commits a terrorist, has been taken from Section 19 of the UAPA verbatim.

Section 113 (7), which criminalises the offense of knowingly possessing any property derived or obtained from commission of any terrorist act, has been taken from Section 21 of the UAPA, present in BNS with a wider ambit.

The whole section has been picked from UAPA almost verbatim, without the relevant safeguards being present in BNSS (sanction). The question that arises is on what was the need to inculcate these draconian and stringent laws into the criminal laws of India and now, in Maharashtra to table one more such.

In the overall background that the nation is in today with a government that has jailed critics through a rampant misuse of the PMLA Act 2002 and the UAPA, 1967 –and the political revengeful manner in which investigation arm like ED is acting, the newly table MSPS Bill, is addition of another draconian face to the laws in the state and in the country.

Persecution by Multiplicity of Statute Charges

Another dangerous implication that will accompany this attempt to enact one more draconian state law is its impact on the provision for undertrials seeking statutory bail under the Bharatiya Nagarik Suraksha Sanhita, 2023. Section 479 of the BNSS contains very stringent bail provisions for statutory bail. The said section limits the conditions for granting statutory bail to under trials—is a section in the new law which corresponds to section 436 A of the Carps, provides for the procedure to be adopted in case the under trial is to be given statutory bail after spending a particular period under detention. In the older CrPC, if an under trial has spent half of the maximum period of imprisonment for an offence in detention, they must be released on a personal bond (not to be applied to offences which are punishable by death) BNSS, 2023 retains the said provision, and makes it further stringent.

However now, under Section 479, the provision of granting bail to under trial prisoners will now be limited to those under trials who are first-time offenders if they have completed one-third of the maximum sentence. Since charge sheets often mention multiple offences, this may make many under trials ineligible for mandatory bail. Furthermore, through the said provision, the prohibition of getting bail under the said section had also been expanded to those offences that are punishable with life imprisonment. Therefore, the following under trials are barred from applying for statutory bail under the said section if: offences punishable by life imprisonment, and persons who have pending proceedings in more than one offence.

Nothing but a move to muzzle protests?

Former Chief Minister and Congress MLA Prithviraj Chavan spoke to the media, calling the bill to be “nothing but a move to muzzle protests”. Media reports have quoted Chavan as saying. “The government wanted to present and pass this bill today itself. We opposed it and requested the Speaker not to push it through. We will oppose the bill vehemently.”

Furthermore, the Maharashtra State Committee of the Communist Party of India (Marxist) has even called for the withdrawal of the bill, stating that it will have a deep impact on the democratic processes of governance. Therefore, the state of Maharashtra, like Karnataka and Tamil Nadu, should set about the task of amending the more draconian provisions of the BNS, 2023 and repeal earlier passed laws that have been abused and misused, rather than introducing more authoritarian legislations.

The complete bill can be accessed here:

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Modi’s government bypasses SC & Law Commission, no nuanced, strong penal sections on Hate Speech: BNS, 2023

The post Maharashtra Special Public Security Bill tabled in assembly, using the myth of “urban naxals” to supress dissent? appeared first on SabrangIndia.

While previous sections in the Indian Penal Code (IPC) –Section 153a, 153b, 153c and 505 of the Indian Penal Code (IPC) were found wholly inadequate in identifying and prosecuting the growing corrosive phenomenon, the newly implemented Bharatiya Nyaya Sanhita (BNS) 2023 breaks no new ground.

In fact, the new criminal laws, that were hurriedly rushed through Parliament while 146 Members of Parliament were suspended, with no amendments being discussed not entertained –and no referrals to a Joint Select Committee as is the norm—had been evolved in a secretive fashion by a “Committee” consisting of former Vice Chancellor, National Law University, Delhi (NLUD), Professor Srikrishna Deva Rao, present VC, NLUD, GS Bajpeyi and advocate Mahesh Jethmalani, Rajsya Sabha member, Bharatiya Janata Party (BJP). That such a committee did ignore Supreme Court judgements with clear cut directions on laws for prosecuting hate speech as also the Law Commission’s 267th Report.

The new criminal laws dealing with the subject-matter are simply not sufficient to cope with the menace of ‘Hate Speeches’. Hate/derogatory/inflammatory speech has not been defined in the new Bharatiya Nyaya Sanhita 2023 and neither in any other penal law.

The Black’s Law Dictionary, 9th Edn. defines the expression “hate speech” as under:

“hate speech. —Speech that carries no meaning other than the expression of hatred for some group, such as a particular race, especially in circumstances in which the communication is likely to provoke violence.”

Hate speech commonly relies on stereotypes about insular groups in order to influence hostile behaviour towards them. Supremacist and outright menacing statements deny that targeted groups have a legitimate right to equal civil treatment and advocate against their equal participation in a democracy. Destructive messages are particularly dangerous when they rely on historically established symbolism, such as burning crosses or swastikas, in order to kindle widely shared prejudices. Messages that are meant to hurt individuals –and incite violence against them –because of their race, ethnicity, national origin, or sexual orientation have a greater social impact than those that attempt to draw out individuals into pugilistic conflicts. Establishing a broad consensus for large-scale harmful actions, such as those carried out by supremacist movements, relies on a form of self-expression that seeks the diminished deliberative participation of groups of the population. Hate speech extols injustices, devalues human worth, glamorises crimes, and seeks out recruits for anti-democratic organisations.

Comparison between BNS 2023 and IPC 1860:

In the absence of specific provisions against the offence of Hate Speech, the prosecution was initiated only through the following provisions referred. Here is the comparison between BNS 2023 and IPC 1860:

Within the BNS, 2023 sections 196(1), and 197 (1) (Ss. 153A and 153B of IPC, 1860) – the sections that deal with hate speech – inserted with provision of “Electronic Communication”.  However the entire newly enacted law –the Sanhita – does not, anywhere, define the tern, Electronic Communication.

Section 196(1) states that “if anyone Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony by words, either spoken or written, or by signs or by visible representations or through electronic communication”, he/she will be punished. Under section 197(1) imputations, assertions prejudicial to national integration by words either spoken or written or by signs or by visible representations or through electronic communication, is/are subject to prosecution under this provision.

A misuse of this provision has already been evident in a case from Shamli, Uttar Pradesh, when someone posting news on an alleged incident of “lynching” was booked under this section. Read here.

Armed Possession not criminalised under BNS:

Critically, Section 153AA of IPC, which deals with punishment for knowingly carrying arms in any procession or organizing, or holding or taking part in any mass drill or mass training with arms finds no place in the BNS 2023. This section was enacted in 2005 by Parliament but was never notified! The Section (amendment of 153AA) however still signifies a crucial change that could have been brought in through BNS but not reflected. The BNS does not seems to be a new approach to the law that addresses present day societal upheavals especially the corrosive crimes of hate speech.

As crucial is the deliberate bypassing by the BNS 2023 of the Law Commission’s 267th Report on Hate Speech:

The Supreme Court of India in Pravasi Bhalai Sangathan vs. Union of India, (2014) 11 SCC 477, directed the Law Commission of India to look into issue of hate speeches being made by politicians and to consider framing guidelines to prevent provocative statements and requested the Commission to examine the issue Hate Speech thoroughly also to define the expression “Hate Speech” and make Recommendations to Parliament to strengthen the Election Commission to curb the menace of “hate speeches” irrespective of whenever made.

The Judgment Can be read here:

On March 23, 2017, the Law Commission of India (Chairman, Former Judge SC, Dr. Justice B.S. Chauhan) was submitted its 267th Report titled “Hate Speech” suggested to then Union Law Minister Ravi Shakar Prasad, amendments to the Indian Penal Code, 1860 and the Code of Procedure Code, 1973 by adding new provisions on ‘Prohibiting incitement to hatred’ following section 153B IPC and ‘Causing fear, alarm, or provocation of violence in certain cases’ following section 505 IPC and accordingly amending the First Schedule of the CrPC.

Despite the recommendation made by the Law Commission, the Union Government ignored the gravity and sensitiveness of the issue of Hate Speech, which is on the rise across country. The ‘Hateful’ and ‘Inflammatory Speech’ leading to violence, riots, promote enmity on grounds of religion and disturbing the long-standing harmony among the citizens.

Proposed new provisions to curb Hate Speech:

With its 267th Report, the Law Commission suggested not just that new provisions in IPC are required to be incorporated but keeping the necessity of amending the penal law, a draft amendment bill, namely, The Criminal Law (Amendment) Bill, 2017 suggesting insertion of new section 153C (Prohibiting incitement to hatred) and section 505A (Causing fear, alarm, or provocation of violence in certain cases), needs to be added.

Proposed Sections in IPC:

Chapter II – Insertion of new section after section153B.- 

In the Indian Penal Code, (45 of 1860) (hereinafter referred to as the Penal Code), after section 153B, the following section shall be inserted, namely: –

Prohibiting incitement to hatred- “153 C. Whoever on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe –

(a) uses gravely threatening words either spoken or written, signs, visible representations within the hearing or sight of a person with the intention to cause, fear or alarm; or

(b) advocates hatred by words either spoken or written, signs, visible representations, that causes incitement to violence shall be punishable with imprisonment of either description for a term which may extend to two years, and fine up to Rs 5000, or with both.”.

Insertion of new section after section 505.-

In the Penal Code, after section 505, the following section shall be inserted, namely: – Causing fear, alarm, or provocation of violence in certain cases.

“505 A. Whoever in public intentionally on grounds of religion, race, caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe –

uses words, or displays any writing, sign, or other visible representation which is gravely threatening, or derogatory;

(i) within the hearing or sight of a person, causing fear or alarm, or;

(ii) with the intent to provoke the use of unlawful violence, against that person or another, shall be punished with imprisonment for a term which may extend to one year and/or fine up to Rs 5000, or both”.

The Law Commission’s 267th Report can be Read here:

Supreme Court’s concern over Hate speech:

Pertinently, the Supreme Court on various occasions, especially since 2022, has asked government to curb and prevent the incidents of hate speech in public discourse including the electronic and other media. As the existing legal framework is not sufficient to prevent this phenomenon, the Supreme Court has, time and again, issued directions about the absence of offence of Hate Speech in Indian Criminal Law. However, although, the word Hate Speech has not been squarely defined in Indian penal law, India’s Constitutional Courts have discussed this phenomenon, the ingredients of Hate Speech, the nuances and distinctions..

In October 2022, while hearing a petition by journalist Shaheen Abdullah, Justice KM Joseph had slammed the Government that “why is the government remaining a mute spectator” and asked them to bring a law regulating media and hate speech. In Shaheen Abdulla v. Union of India & Ors. [Writ Petition (C) No. 940 of 2022], the division bench of Justice Km Joseph and Justice Hrishikesh Roy, directed the directs Uttar Pradesh, Uttarakhand and Delhi Governments to take suo motu action against hate speech crimes without waiting for formal complaints irrespective of the religion of the offender.

The order can be read here:

The directions issued by the Supreme Court in Shaheen Abdulla (Supra) had been limited to Uttar Pradesh, Delhi and Uttarakhand.

On April 28, 2023, the division bench of Justice KM Joseph and BV Nagarathna in Ashwini Kumar Upadhyay v. Union of India [W.P. (C) No. 943 of 2021], extended its 2022 order and directed all States/UTs to register Suo moto FIR against Hate Speech irrespective of religion. The court added that when any speech or any action takes place which attracts offences such as Section 153A, 153B and 295A and 505 of the IPC etc., suo moto action will be taken to register cases even if no complaint is forthcoming and proceed against the offenders in accordance with law.

The judgement can be read here:

On January, 2023, while hearing a batch of petitions involving hate speech incident and expressing the concerns about the manner in which TV Channels are functioning, the Supreme Court was observed that “offending anchors must be taken off Air, Media should not create division”.

Further, in Amish Devgan v. Union of India (2021) 1 SCC 1, the Supreme Court embarked on a comprehensive review of Indian and foreign decisions on hate speech, and a few academic articles on the subject. Devgan, a television journalist, faced criminal charges under various provisions of the IPC on the basis of his statements referring to a saint in Islam as an “invader, terrorist and robber who had come to India to convert its population to Islam” during a television programme hosted by him. The Court refused to quash the criminal cases against him, which affirmed the adequacy of existing criminal law to recognise hate speech, even if made accidentally or in error, as was claimed by Devgan. The Court observed that hate speech constituted three elements – content, intent, and harm or impact – and that the content of a speech must be coupled with the intent of the speaker to incite or cause harm.

The Judgement can be read here:

In the case of Kaushal Kishore vs. State of Up and Others (2023) 4 SCC 1, clarified that every citizen of India must consciously be restrained in speech, and exercise the right to freedom of speech and expression under Article 19(1)(a) only in the sense that it was intended by the framers of the Constitution, to be exercised. This is the true content of Article 19(1)(a) which does not vest with citizens unbridled liberty to utter statements which are vitriolic, derogatory, unwarranted, have no redeeming purpose and which, in no way amount to a communication of ideas. Article 19(1)(a) vests a multi-faceted right, which protects several species of speech and expression from interference by the State.

However, what is clear is that the right to freedom speech and expression, in plural d democracy does not protect statements made by a citizen, which strike at the dignity of a fellow citizen. Fraternity and equality lie at the very base of our Constitutional culture and upon which the superstructure of rights are built, and these do not permit such rights to be employed in a manner so as to attack the rights of another. If speech, ensuing from persons of political, social or any other authority by their utterance impact the dignity and right to life of a fellow citizen or a depressed section, with also a potential to create circumstances for him/them that are exclusivist or make them prone to violence, this constitutes Hate Speech.

The Judgement can read here:

In the case of Tehseen Poonawala vs. Union of India and Others (2018) 9 SCC 501, the Supreme Court of India discussed preventive, remedial and punitive measures in order to identity and prevent the incidents of hate speeches. The court further recorded that mob vigilantism and mob violence have to be prevented by the governments by taking strict action. That rising intolerance and growing polarisation expressed through incidents of mob violence cannot be permitted to become the normal way of life or the normal state of law and order in the country. The State has a sacrosanct duty to protect its people from unruly elements and perpetrators of vigilantism, with utmost sincerity.

The Judgement can be read here:

Conclusion:

There is no doubt that India’s long standing religious and cultural harmony among the peoples of different beliefs and faith, infected and affected by the hate and inflammatory statements made by politicians and giving rise to mob violence, lynching, harassment etc. Hate Speech has now become a tool and short cut to get publicity and the politicians are instead of curbing the incidents of hate speeches are encouraging the wrongdoers to fulfill their “hateful propaganda”, “destructive messages” and “biased speeches” for vote bank politics at the cost of integrity and harmony of the nation.

All these rich jurisprudential developments have been wilfully ignored by both government and Parliament that hastily passed the 2023 BNS Laws. Instead of addressing the inadequacies of the previous IPC and CrPC, the BNS 2023 makes the prevalent laws even more regressive and police authorities armed with more power.

In the arena of hate speech, BNS 2023 is not just wanting as a set of laws that will ensure prosecution but in fact may harbour in an era that is conducive to the vulnerable victim communities being further targeted and criminalized.

Related:

Towards a Hate Free Nation: Handbook for Police & Administration

New Criminal Laws: Reform or Repression? Insights from Legal Experts

Bharatiya Nyaya Sanhita Bills: Pro-People Reforms or Draconian Changes?

Debating India’s New Criminal Laws: Moving Away from Colonization or Towards Authoritarianism?

The post Modi’s government bypasses SC & Law Commission, no nuanced, strong penal sections on Hate Speech: BNS, 2023 appeared first on SabrangIndia.

Before delving deep into the controversial October 2023 case in the Supreme Court, it is worth, at the start of 2023 to look at a more recent instance of the Supreme Court stepping back from allowing abortion rights to a mother.

On January 31, 2024, the Supreme Court declined the plea of a widow who sought to end her 32-week pregnancy, asserting that the unborn child is healthy. The court underscored its obligation to safeguard both the well-being of the unborn and that of their mother. Justice Bela M Trivedi stated that, “There is no abnormality in the foetus. It is a full-fledged, normal-bodied child. This is not the case we should entertain.” Despite the petitioner’s argument citing mental anguish and depression due to the pregnancy, her petition was dismissed with an order for government care. This ruling followed a reversal by the Delhi High Court which had initially approved termination but changed course based on medical advice indicating potential health challenges for both body and mind in case of live birth. Following this judgment, on February 1, 2024, the Delhi High Court denied termination of pregnancy of a 20-year-old unmarried woman stating, “foeticide cannot be permitted’ and that, “You’ll have to induce the pregnancy.”

Now, the October 2023 case, in-depth

The Court was presented with a plea from a mother of two, who, on 4 October 2023, sought termination of her over 24-week pregnancy. Her decision stemmed from the profound impact of postpartum depression and overwhelming economic and emotional distress. This brave 27-year-old petitioner had been undergoing treatment for depression and harboured genuine concerns about potential deformities in the foetus due to the medication.

Justices Hima Kohli and B.V. Nagarathna, initially hesitant to entertain the case, raised concerns that this was not a typical instance of forced pregnancy and that allowing late petitions might set a precedent for hesitancy. However, on October 5, 2023, they directed the All India Institute of Medical Sciences, New Delhi (AIIMS), albeit reluctantly, to establish a medical board to evaluate the petitioner’s physical and mental well-being. Dr Amit Sharma, representing the desperate petitioner, revealed to the court that ‘Lactational Amenorrhea’ had, in fact, concealed the pregnancy until after the 24-week milestone had passed.

According to the report submitted by AIIMS on October 6, 2023, it was deemed feasible for the child to survive outside of the womb. Based on this assessment, Justices Kohli and Nagarathna granted permission on October 9 for the petitioner to terminate her pregnancy, affirming “the right of a woman over her body.” Furthermore, they ordered that the procedure be carried out at AIIMS without delay.

On October 10, Additional Solicitor General Aishwarya Bhati received communication from Dr. K. Aparna Sharma, a Professor at the Department of Obstetrics and Gynaecology at AIIMS and a member of the Court-designated medical board. In her correspondence, she expressed concerns about the potential challenges associated with caring for a preterm baby with low birth weight in an intensive care unit, emphasizing the high risk of immediate and long-term physical and mental disabilities that could significantly impact the child’s quality of life. The email also raised questions about what should be done regarding the baby’s situation. Receiving this, Bhati quickly approached the Chief Justice, bypassing the formal application process of the court, to request a reconsideration of the Order issued by the two-judge bench. She referred to an email outlining two options: terminating the pregnancy, involving foeticide or stopping the child’s foetal heart; or delivering a preterm baby that would need special care and attention. The Court requested Bhati to craft a plea for reconsideration and instructed that the termination be temporarily paused.

The Chief Justice regarded Bhati’s request by constituting a special bench headed by Justices Kohli and Nagarathna. In the late afternoon of October 11, 2023, the Court heard the case again. This time, all eyes were on the pregnant mother herself as she took her place in front of the bench. In an emotionally charged affidavit, the petitioner declared, “I have made a wilful and conscious decision to medically terminate my pregnancy. I do not want to keep the baby even if it survives”. The bench rendered a split verdict.

Justice Kohli stated that “The initial report itself was fairly hedged and ambiguous”. She found clarity in the doctor’s email that offered a “correct and clear perspective” on the case’s issues. With unwavering determination, she declared, “My judicial conscience does not permit the petitioner to terminate the pregnancy.” The implications for the reproductive rights of women or the rights of the child remained shrouded in uncertainty in this opinion.

Justice Nagarathna, contrastingly, endorsed the petitioner’s affidavit, hailing it as “categorical”, “clear” and emblematic of “strong determination” to terminate the pregnancy and forgo keeping the child if it survives. Resolutely asserting that “Her decision must be respected,” Justice Nagarathna drew inspiration from X v Health & Family Welfare Department (2022), a landmark case acknowledging women’s right to reproductive autonomy.

The Chief Justice, DY Chandrachud, was then faced a divided decision and proceeded to establish a three-judge panel consisting of himself, along with Justices J.B. Pardiwala and Manoj Misra.

In the hearing scheduled on October 12, 2023, the CJI’s three-judge bench grappled with an agonising choice presented by Dr Sharma in her email – halt the foetal heart or proceed with premature delivery, potentially subjecting the child to enduring mental and physical challenges.

Concerning her plea, ASG Bhati contested that reproductive rights are not absolute. The Court, in an earlier judgement, removed any distinction between the rights of unmarried and married women. She also emphasised that there were no “exceptional circumstances” in the present case as stipulated by the Medical Termination of Pregnancy Act, 1971.

Additionally, the Bench vividly expressed that it went against the Supreme Court’s constitutional mandate to either “end the pregnancy or bring a child into a world of lifelong deformity.” Justice Pardiwala presented the dilemma—the petitioner sought relief from the current pregnancy, yet was clear in not wanting to stop the foetus’ heart. The expert view opposed her request for pre-term delivery due to potential mental and physical deformities in the child. CJI Chandrachud highlighted India’s “harsh reality” that children with disabilities were less likely to be adopted. The Justices explained to the petitioner that her plea had placed the court in a delicate predicament and as the hearing ended, they asked the counsel to approach the petitioner with the prospect of continuing the pregnancy for another eight weeks to ensure that the child would be birthed without any deformities.

On October 13, 2023, as the hearings resumed, ASG Bhati informed of the failure of conversations with the petitioner. While advocating for the unborn child, she laid forward the following arguments:

1. That the Medical Termination of Pregnancy Act, 1971 embraced a pro-choice perspective by empowering individuals to make their own reproductive decisions while also considering the rights of a viable foetus. Citing Sections 3, 3(2)(b), and 5 of the MTP Act, Bhati highlighted how the legislation carefully avoided terminating a viable foetus except in cases involving danger to the mother’s physical and mental well-being, risk to her life, or “foetal malformation” with a significant threat to survival. The ultimate intention of the lawmakers being safeguarding the life of the foetus beyond the 24-week milestone.
2. The AIIMS Medical Board’s opinion highlighted that the heart of the foetus to be not stopped. Doing so would lead to foeticide, as the email by Dr. K. Aparna Sharma explained. As per Bhati, the email and the report must have high regard in considering the petitioner’s choice
3. That a fighting chance to survive must be given to the unborn foetus. The mother-petitioner herself has contemplated the abortion several times since the judicial process began.

Contrastingly, Advocates Amit Mishra and Colin Gonsalves laid down the following points

1. The term “life” under Section 5 of the MTP Act must have a broad interpretation similar to the interpretation of the term under Article 21 of the Constitution. However, Justice Chandrachud explained that this cannot be done as this would mean that a woman be given the “overriding” power to terminate the pregnancy at even 35 and 36 weeks.
2. Advocate Amit Mishra reiterated the facts of the case, explaining that she had developed postpartum psychosis shortly after the delivery of her second child in September 2022. He emphasized that postpartum depression and psychosis are different, highlighting symptoms such as sleep disturbances, hallucinations, suicide attempts, and harm to her children. Given these circumstances, he questioned how she could raise a third child.
3. As per International Laws, unborn children currently remain without legal rights, being yet to attain personhood. This stands in stark contrast to the paramount importance placed upon protecting and upholding the rights of living women.
4. Gonsalves emphasised to the Court that every abortion procedure involves medically quieting the heartbeat. He pointed out that this is a directive from the government and does not necessitate approval from the Court

The Bench, after hearing both sides, stated that they cannot adhere to international standards, emphasised the progressive nature of the Indian laws on abortion, and concluded that they are “averse to issue a direction” to still the heartbeat of the foetus. AIIMS, therefore tasked with conducting the birth at full term, while the Union was to provide any necessary assistance should she (the mother) decide to entrust her child for adoption.

The complete order can be read here:

How does this decision take us “two steps backwards”?

In September 2021, a wave of change swept across India with the enactment of the Medical Termination of Pregnancy Act, 2021. This ground-breaking legislation extended the upper gestational limit for abortion from 20 to 24 weeks, marking a significant leap towards more progressive and inclusive abortion laws in India. The amendment was ignited by a chorus of voices from women seeking safe medical support for unwanted pregnancies beyond the existing limits, driving its heralded arrival as an essential step forward.

Following this, in September 2022, the Court allowed the termination of a 22-week pregnancy. The Court declared that any differential treatment based solely on marital status violates the constitution. It acknowledged the unaddressed plight of survivors of marital rape dealing with unwanted pregnancies. Additionally, the Court said that the choice to continue a pregnancy or not is deeply embedded in a woman’s power over her own body and her freedom to carve out her destiny. It is an acknowledgement that an unplanned pregnancy can profoundly impact a woman’s life, throwing off her education, career, and emotional equilibrium.

The complete order can be read here:

Unfortunately, this pro-rights movement faced a significant blow with the October 2023 judgement, shedding light on the extensive work still needed for India to embrace a truly progressive and rights-oriented approach to medical termination of pregnancies.

Via the October 2023 judgement, it becomes apparent that – the Court’s perception of mental illness as a basis for termination remained shrouded in ambiguity; that for the woman to fully exercise her reproductive autonomy, she must demonstrate the risks of her situation and her unequivocal necessity for an abortion.

Problematic notions the case brings forward

The system turns the expectant individual into a challenger against pregnancy, as was evident in the October 2023 ruling. The Court restricted a woman’s control over her reproductive choices by rigidly comparing her rights to the criteria outlined in Sections 3(2B) and 5 of the MTP Act. The combination of legislation and judicial understanding ultimately established a structure where a woman’s autonomy abruptly ended at 24 weeks, giving way instead to doctors’ and judges’ subjective assessments of circumstances. Challenging the fragmentation of women’s bodies is, therefore, essential, and it’s crucial to place the pregnant person at the centre of discussions about reproductive rights. Ensuring guaranteed rights must result in ensured access, where decision-making power lies more with women whose bodily autonomy is at stake than lawyers, judges, or doctors.

Consequently, the procedural history of the case indicates the loss of the woman’s voice and rights. The back-and-forth between lawyers, doctors, and judges reflected a systemic dismissal of the challenges faced by someone seeking a late-term abortion. Furthermore, it’s infuriating that those seeking abortion are frequently forced to justify why they should have access to it. This was glaringly evident when the Court dismissed this as not being a situation of sexual assault.

What followed the judgement?

Following this judgement, a shadow of doubt is reflected in contrasting decisions of the Supreme Court that sets the precedents for subordinate courts. With this ping-pong of progressive-regressive judgements, the subordinate courts face a challenge in providing women with the ultimate right to decide the faith of their pregnancy. A pattern of backtracking on the progressive judgement often leads to the unevenness of justice delivery, especially when it comes to setting a precedent for the pan-India subordinate courts. On the same set of facts, a court in Maharashtra could be taking on a broad-minded approach whereas a court in Kerala could be taking a regressive stance.

Kerala to Delhi, the courts move backwards

In a recent heart-wrenching case, the Kerala High Court decided to deny the plea of a 12-year-old girl seeking permission to end her pregnancy, which resulted from an incestuous relationship with her minor brother. Citing that the termination of the pregnancy is not “tenable” as 34 weeks had been completed and the foetus was fully developed. Heavy reliance was placed on the opinion of the medical board which inclined towards the completion of pregnancy.

The complete order can be read here:

January 2024, the Delhi High Court reversed its decision to allow the termination of a 29-week-long pregnancy due to the woman’s mental illness following her husband’s passing. The new order was influenced by requests from the Ministry of Health and Family Welfare and AIIMS, emphasizing that the foetus had a good chance of survival and urging the court to consider the rights of the unborn child. Once again, “aversion” was shown towards abortion due to the potential viability of the foetus.

The complete order can be read here:

Bombay HC shows the way

Contrastingly, the Bombay High Court on January 20, 2024, dismissed the narrow views of the medical board and took a stand in favour of termination despite an advanced gestation period and non-life-threatening issues with the foetus. The court strongly asserted that in cases of severe foetal abnormality, the length of pregnancy should not be a deciding factor. Citing a ruling from September 2022, the High Court emphasized women’s right to reproductive autonomy, bodily autonomy, and decisional freedom. It condemned any denial of a woman’s dignity and her reproductive rights by refusing her request for abortion. Furthermore, it highlighted that societal and economic factors must also be considered while making such crucial decisions. The court also observed that the MTP Act does not answer everything, although it was ahead of its time.

The judgement said, ”In the cold sterility of a legislation, we must discern where justice lies when it is to be applied to the human condition. This is not a case where a blanket invocation of this or that provision will provide an answer”, adding, “justice may have to be blindfolded; it can never be allowed to be blindsided.”

It also emphasised the need to acknowledge the socio-economic status of the woman, saying, “In cases such as these, we believe Courts must calibrate themselves to not only the facts as they stand but must also consider that what these cases present are, above all, profound questions of identity, agency, self-determination and the right to make an informed choice. We will not ignore the Petitioner’s social and economic condition. We cannot”.

“The right to decisional autonomy also means that women may choose the course of their lives. Besides physical consequences, unwanted pregnancies which women are forced to carry to term may have cascading effects for the rest of her life by interrupting her education, her career, or affecting her mental well-being,” the HC said.

The High Court, with resounding clarity, declared that “depriving women of autonomy not only over their bodies but also over their lives would be an affront to their dignity”.

The complete order can be read here:

Conclusion

In the murky depths of clandestine abortion practices, a stark and sobering truth emerges wherein back-alley abortions are a reality. Within India’s legal framework, strides toward progressive jurisprudence are often muddled by the infiltration of moral objections, weaving a tangled web where legality clashes with entrenched societal beliefs. The narrative surrounding rights becomes obscured by the arcane and patriarchal notion that a woman’s autonomy is subject to communal judgment, casting a foreboding shadow over the preservation of individual freedoms in the face of traditional norms. This infiltration extends its tendrils even into the hallowed halls of justice, posing a formidable challenge to the hard-won advancements in defiance of prevailing public morality, and perpetuating disparities that impede the progress of gender equality initiatives. As we confront this disheartening bias, it becomes increasingly imperative to illuminate the obscured pathways to justice, ensuring that the light of human rights and individual agency shines through the darkness of societal constraints.

(This analysis has been researched by CJP’s legal team including Karishma Jain)

[1] The absence of lactation in breast-feeding mothers

Related:

Bombay HC rules that married women may terminate pregnancies because of foetal health conditions

Bodily autonomy & safe abortion, a right under Article 21

The post Supreme Court on abortion rights, one step forward – two steps back appeared first on SabrangIndia.

The January 8 order came on a batch of petitions challenging the release. Along with the writ petition filed by Bilkis Yakub Rasool (Bilkis Bano) in November 2022, several other petitions were also previously filed. These were by senior women politicians’ activists and journalists.

Citing the public interest, safety of the society, the future consequences of the remission order, and a protection of women’s rights, these petitions held their ground. The Supreme Court, primarily addressing Bilkis Bano’s petition, chose not to rule specifically on maintainability calling it an “academic” point.

The background

The brutality of communal violence experienced in February 2002 in Gujarat –a widespread and shocking impact for thousands –seminally changed the life of Bilkis Bano. Carrying her three year old daughter, Saleha, as she was fleeing for her life from the small town of Randhikpur where she had been born, a mob –many of whom she recognised – fell upon her and several others from her family including her mother and sister—smashed her child’s head and raped her and others. She was left only because she was unconscious, believed to be dead. Of the total lives lost which were 14, seven were Bilkis’ family alone; three other women were also raped before being killed.

Bilkis was one of the sole survivors and courageously fought—for 22 long years to obtain substantive justice. When the local police closed down her complaint, replete with details and filed an ‘A’ summary report (closure report) and this was shockingly accepted by the local magistrate, she, assisted by a band of activists and lawyers, approached the National Human Rights Commission (NHRC). In 2002, it was former Chief Justice JS Verma, who had led an intrepid investigation into the Gujarat 20002 carnage recommending an investigation by the Central Bureau of Investigation. By 2004, when the Supreme Court finally ordered a transfer of the trial to Mumbai, another for chief justice, Justice AS Anand was chairperson, NHRC.

Finally in 2008, a special CBI Court Judge, Judge UD Salvi convicted 11 persons for the mass targeted crimes, and their conviction was upheld by the Bombay High Court in 2017. Finally in 2019, the Supreme Court of India not only upheld this conviction but directed payment of Rs 50 lakhs in compensation, a suitable home/land to be provided by the state of Gujarat as reparation. She was also directed to be provided employment; however when she requested that her husband be employed instead since she was unlettered this direction remains unfulfilled.

Drama hit this case again in 2022. As the country was being made to “celebrate” Amrit Mahotsav –75 years of Independence from Brtish rule –on August 14, 2022, 11 of these convicts were released in celebratory fanfare by the Gujarat government, still ruled by the supremacist Bharatiya Janata Party (BJP). Ministers in the state government and officials of the ruling party garland and welcome these mass murderers and rapists in their midst.Outrage all over India follows with thousands participating in signature campaigns demanding a withdrawal/cancellation of the remission. By September 2022, that is within a month three prominent women file writ petitions challenging the remission. By November 2022, Bilkis Bando herself, represented by Advocate Shobha Gupta also approaches the Supreme Court. The matter is heard at length, the Solicitor General Tushar Mehta predictably represents the Gujarat government and on January 8, 2024, the Supreme Court delivers this verdict.

How did the remission orders come to be passed?

Having spent 14 year behind the bars, convict Radheshyam Shah, appeals for consideration of remission first with the State of Gujarat where it is ruled that the appropriate government would be the government of Maharashtra. At the time, the Maharashtra government is ruled by the Maharashtra Vikas Aghadi (MVA). Not approaching Maharashtra then, he challenges this finding of jurisdiction and approaches the Supreme Court on the question. During the hearings in April-May 2022, both he as convict and the Gujarat government as respondent conceal material facts from the Supreme Court – for instance the fact that the Judge who had tried the case and convicted these men, Judge UD Salvi had vehemently opposed the remission when duly consulted; the fact that the prosecuting agency, the CBI, too, when approached by on the issue as is due, also had strongly commented against remission. This concealment of facts led to the Supreme Court in May 2022 to deem the Gujarat government/administration as being the jurisdiction to deliver a response on remission. It is this sinister concealment by the Gujarat government before the Supreme Court has led to the present order of January 8, 2024 to state that “a fraud was committed on the Supreme Court” by the Gujarat government.^[1]

In a well -orchestrated move, around the same time, 10 other convicts also furnish remission pleas before the State of Gujarat, ostensibly, in compliance of Section 432 of the Code of Criminal Procedure (CrPC). And then, on August 15, 2022, during Independence Day celebrations, the Gujarat government duly delivers on this after accepting the remission applications for all 11 convicts who were sentenced to life imprisonment. The Gujarat government stated that they were granted early release in accordance with the 1992 policy, citing the ‘good conduct’ of the convicts while imprisoned. The convicts are all granted remission in reliance of the order dated August 10, 2022.

[[Later media investigations reveal –following the nationwide outrage that follows their release that these convicts –serving terms in Gujarat—had been granted obscene number of days of parole by the prison authorities rendering their incarceration a joke. Advocates Shobha Gupta and Vrinda Grover had argued that they had, in fact not served their sentence. ^[2]Also, that in the “Committee” appointed by the Gujarat government to consider the remission applications, three dominant members were office bearers of the ruling BJP! One of the convicts was even booked in 2020 for a gender violence case while on parole! ^[3]]]

Aptly aggrieved by this, Bilkis Yakub Rasool, being an unfortunate victim of the heinous crimes hereinabove narrated, filed the writ petition under Article 32 of the Constitution of India, seeking issuance of a writ, order or direction quashing the Orders dated August 10, 2022 passed by the State of Gujarat by which the convicts in Sessions Case No.634 of 2004, Mumbai were released prematurely.

The issues under discussion

The heart of the matter revolved around the sustainability of petitions, the power vested in the Gujarat government to provide remission, and the fundamental freedom of the convicts. The verdict ruled in favour of the petitioners on all these fronts.

The following points outline the issues in detail:

1. Whether the writ petition filed by the petitioner is maintainable?

Petitioner

• Grant of remission is an administrative function that involves the reduction or cancellation of a punishment. Administrative Orders, which pertain to decisions made by government agencies and officials, are subject to judicial review, allowing courts to assess their legality and fairness. Thus, the petition by Bilkis Bano should have concrete standing.

Respondents

• The remission order flows from a writ of mandamus by the Supreme Court. This writ cannot be challenged by filing a review petition and would require a curative petition.
• One of the learned counsel also highlighted that Bilkis Bano should have first approached the Gujarat High Court availing her right under Article 226 of the Constitution and approaching the Supreme Court should have been a last resort.

Judgement

• Discarding these objections, the Apex Court upheld the maintainability of the petition.
• The petition filed by the cannot be dismissed on the ground of availability of an alternative remedy under Article 226 of the Constitution or on the ground of its maintainability under Article 32 of the Constitution before the Supreme Court.
• One more compelling justification for supporting the viability of the petition was that Radheshyam Shah, one of the offenders, had filed an Article 32 plea with the Supreme Court asking the Gujarat government to review his remission. On May 13, 2022, the Supreme Court instructed the Gujarat government to evaluate remission under the 1992 Gujarat Policy. However, the Gujarat government was incompetent to address the petition given that it falls out of its jurisdiction. Crucial facts were also concealed from the Supreme Court at the time. The maintainability of Bano’s petition also clarifies this.

2. Whether the writ petition filed as a PIL challenging the order of a remission is maintainable?

Petitioner

• Pained by the order of remission, following petitioners

o   In Petition (Crl.) No.352 of 2022, Dr. Meeran Chadha Borwankar, a former woman police officer, an ex-Indian Foreign Service bureaucrat, and an academic seek to set aside the remission Orders.

o   Subhashini Ali, a former parliamentarian, Revati Laul, an independent journalist, and Roop Rekha Verma, former Vice-Chancellor of Lucknow University, collectively file Writ Petition (Crl.) No.319 of 2022 challenging the same Orders.

o   Mahua Moitra, Member of Parliament from Krishnanagar constituency, West Bengal, files Writ Petition (Crl.) No.326 of 2022.

o   Writ Petition (Crl.) No.403 of 2022 is filed by the National Federation of Indian Women (NFIW), a women-centric organization, seeking a mandamus to revoke remission granted to respondent Nos.3 to 13

o   Asma Shafique Shaikh, a lawyer and social activist, files Writ Petition (Crl.) No.422 of 2022 seeking to quash the Orders dated 10.08.2022.

• The claim largely relied on public interest, safety of the society, the future consequences of the remission order, and a protection of women’s rights.

Respondent

• It was also contended that the petitioners who have filed the public interest litigation are interlopers and busybodies and are not persons who are aggrieved.
• Remission is an affair between the state and the convict, hence, there should be no third-party influence and they retain no locus standi.
• Such interferences would unsettle the position of law and open floodgates of litigation involving “un-aggrieved party”

Judgement

• The judgement held that the merits of the remission orders were considered under the petition by Bano. It stated that the maintainability of PILs was an “academic” discussion which need not be answered in the present case.^[4]

3. Whether the Gujarat Government was competent to pass the order of remission?

Petitioner

• Definition of the expression ‘appropriate government’ finds meaning in sub-section 7 of section 432 of CrPC
• The state in which the offender has been sentenced is competent to consider an application of remission. This means that the place of the occurrence of the incident or the place of the imprisonment is irrelevant and similarly they have been excluded from the definition in Section.
• In the present case where there was a transfer of the trial form Gujarat to Maharashtra, the transfer becomes relevant in deciding the State competent to review remission.
• Additionally, the viewpoint of the presiding judge in the convicting court is pivotal when a convict seeks remission. In this case, both the convicting court and its presiding judge were in Maharashtra.
• Reference was made to the precedent set in the case of State of Madhya Pradesh v Ratan Singh (1976), wherein the Supreme Court established that the convicting state of Madhya Pradesh would be deemed the “appropriate government,” irrespective of the fact that the convict was serving the sentence in Punjab. Additionally, reliance was placed on the decision in Union of India v V. Sriharan (2016), where a Constitution Bench reaffirmed the definition of the “appropriate government.”

Respondent

• Vehemently argued that the place appropriate for the consideration of the remission is to be the place where the offence has occurred and which is also the place where the convicts are incarcerated.

Judgement

• State of Maharashtra to have the jurisdiction to consider the application of the remission vis-à-vis R No. 3 to 13 (the convicts) as they were sentenced by the Special Court, Mumbai.
• Given that the order of the remission (of R No. 4 to 13) were passed by the State of Gujarat which had no jurisdiction, the order thus passed has no leg to stand. There seems to be an error of jurisdiction.
• When an authority, which is the Government of State of Gujarat in the instant case, was lacking jurisdiction to consider the applications for remission. Just as an order passed by a Court without jurisdiction is a nullity, in the same vein, an order passed, or action taken by an authority lacking in jurisdiction is a nullity and is non est in the eye of law.
• Therefore, the Order of remission passed holds no ground simply on this reasoning
• Additionally, the court establishes that the May 2022 of the Supreme Court which grants the State of Gujarat to decide the request of remission is per incuriam which is to say that it is not based on law or fact and goes against V Sriharan (Union of India vs V. Sriharan @ Murugan & Ors. (Writ Petition (Crl.) No.185/2014).
• Radheshyam, the petitioner in the May 2022 case, intentionally left out crucial details when approaching the Supreme Court. Following the dismissal of his plea by the Gujarat High Court, he sought remission from the Maharashtra government. However, his application faced adverse recommendations from both the Central Bureau of Investigation and the Special Judge, Mumbai – who was also presiding over his case. The Superintendent of Police and District Magistrate of Dahod were also against his release.
• Radheshyam’s claim about a conflicting stance between the Gujarat High Court and Bombay High Court on his remission petition was disproved; as it turns out, this related to a different matter altogether – specifically involving transfer of convicts from Maharashtra to Gujarat.
• The judgment clarified that the remission proceedings initiated solely through Radheshyam did not extend to considering the remission of other convicts. With the nullification of the May 2022 Order, all subsequent actions were annulled, rendering the Gujarat government’s remission order, a direct consequence of the May 2022 order, null and void.

4. Whether the order of remission was in accordance with law?

Petitioner

• All orders dated August 10, 2022 are a stereotyped and cyclostyled orders.
• The Gujarat Government did not factor in key considerations under its 1992 Policy which was replaced by a stringent 2014 Remission Policy.
• Moreover, the consent of the presiding judge was neglected while accumulation the views on the remission of the convicts.

Respondent

• Firmly believing that the remission is within the jurisdiction of State of Gujarat, the learned counsels impose reliance on the 1992 policy stating that it should considered given that at the time of the conviction, the 1992 policy was enforceable and not the more stringent 2014 one.
• Additionally, the counsels argue that the section uses the word “may” while asking for the opinion of the “presiding officer of the court”. The opinion therefore is not a mandate but a mere suggestion.

Judgement

• The judgement underscores and usurpation of power and an instance of abuse of discretion on the part of Gujarat’s government.
• “The State of Gujarat has acted in tandem and was complicit.”   In Radheshyam’s petition, the Gujarat government had taken a different stance and argued that the Maharashtra government was the “appropriate government” to consider remission. However, it did not file a review petition to correct the May 2022 order of the Supreme Court.
• This judgement claims that “ensuing litigation would not have arisen at all” if the Gujarat government had informed the Supreme Court of this error.  Further, as no such review petition was filed, the Gujarat government usurped the power of the Maharashtra government. Subsequently, other convicts who were not involved in the petitions also filed remission applications relying on the May 2022 Order.
• This duplicity of the Gujarat government led to an arbitrary and mechanical delivery of remission order without a proper consideration of the material facts and lacking complete reliance on the law.
• Lastly, it was also established that the “appropriate government seeking the opinion of the Presiding Officer” is not a suggestive part of the section rather a mandatory action to have a bona fide remission.

5. What follows?

The central question following the quashing of the remission order that arose before the Division Bench came to be, “whether the personal liberty of the convicts under Article 21 should be protected i.e. should they be allowed to continue their freedom?”

Petitioner

• The convicts have enjoyed several parole and furloughs during their incarceration despite the gravity of the crime and the concern of public interest.
• The learned counsel states that the attainment of justice would only be accomplished when the convicts are returned to prison. If any remission were to follow, it must only be accepted when done in accordance to law.

Respondents

• The learned counsels for the convicts claim that having experienced freedom after a long imprisonment, the liberty of the convicts must be protected.
• The Court must exercise jurisdiction under Article 142 of the Constitution.

Judgement

• Article 21 of the Constitution establishes that no person should comprise their liberty except in accordance with law. In the present case the crutch of liberty availed has been granted in violation of law
• The Bench clarifies that the rule of law prevails, which is to say that “no one, howsoever high or low, is above the law.” In a case of failure of the State to perform, the Court must step in to realign with the rule of law.
• Judiciary being the guardian of the rule of law and centre pillar of a democratic state must at all costs emphasize on the supremacy of rule of law.
• The judgement underscores the importance of justice, the cardinal principle of respecting the law, the accountability of the faith instilled by the people, and the highest responsibility of the Court to rectify arbitrary orders.
• The reasoning arising from the above leads to the conclusion that the invocation Art 142 would lead to an ignorance of rule of law. The ‘depravation of liberty’ with regards to the convicts is thus justified given the abuse of law exercised in attainting the remission.

Verdict

1. The outcomes of other petitions were rendered redundant in regards to the present petition.
2. The order of May 2022 with regards to the appropriate government was declared null and non eston grounds of concealment of material facts and misrepresentation of facts. It was also declared per incuriam and not to be a binding precedent.
3. The impugned orders of remission dated August 10, 2022 were quashed
4. The convicts were ordered to report to the concerned jailed authority

Though victory has come Bilkis’ way again, in 2024, given that remission and the right to grant sentence is an available remedy in criminal law, there is little to prevent these convicts from now approaching the Maharashtra government. Where a more friendly government currently rules.

(The judgement primer has been researched by CJP’s legal intern’s team including Karishma Jain)

^[1] 432 od CRPC Section 432 of the CRPC: Power to suspend or remit sentences

^[2] https://www.ndtv.com/india-news/bilkis-bano-rapists-were-out-of-jail-for-1-000s-of-days-on-parole-before-release-3440854

^[3] https://timesofindia.indiatimes.com/india/in-the-bilkis-case-parole-and-furlough-are-on-trial/articleshow/95917873.cms?from=mdr

^[4] Citizens for Justice and Peace, in all its legal actions concerning survivors of 2002 Gujarat, Dhule, Maharashtra, Muzaffarnagar, Uttar Pradesh has always approached the court on behalf of and with survivors and not in isolation.

Related:

Bilkis Bano speaks: First person account, Godhra Relief Camp, March 2002

Today, I Can Breathe Again: Bilkis Bano on landmark Supreme Court judgement

Bilkis Bano Case: Supreme Court strikes down remission for gang rape and murder convicts, citing flagrant violation of rule of law

The post Justice once more for Bilkis Bano, but what now lies ahead? appeared first on SabrangIndia.

2023, the year saw a total of 47 bills being introduced, out of which 30 bills were passed by both the houses of Parliament. Since the Narendra Modi led government enjoys what has been termed as a “brute” majority in both the houses, most of the bills were passed without following due process, allowing for public participation or referring them for opposition views (and amendments) to select committees of Parliament. In essence, this means they were passed summarily without inculcating any of the changes. Many of these bills that have been thus inappropriately seen a passage through the union legislature have also promptly received assent of the President of India. They will therefore soon take the shape of laws.

So, last minute tabling of the law (curtailing public and media discussion), hasty passage without either critical discussions in the Houses of Parliament and thereafter the brazen bypassing of established parliamentary procedure became the established norm of this union government, a practice it has perfected since it first came to power in 2014. Parliament, meant to witness elected lawmakers –of all ideological hues– engage in debate over issues concerning the country, saw a dismal record of large numbers of opposition leaders being suspended from both Houses.

During the budget session, the opposition political parties had staged a protest against the disqualification of Congress leader Rahul Gandhi and demanded a JPC probe into Adani stocks. The Monsoon session saw the opposition parties’ outrage over the ethnic violence taking place in the state of Manipur. Throughout the monsoon session, the opposition parties demanded that the Prime Minister Narendra Modi at least make a statement on the targeted festering violence in Manipur since the May 3, 2023. Matters came to a head when a shocking video (first recorded in mid-May) of a ghastly gang rape and stripping of women became public on July 19. A total of 5 Members of Parliament (MP) were suspended from this session for various reasons.

The latest Winter Session marked a new low in India’s parliamentary democracy as a total of 146 MPs from the Opposition bloc were summarily suspended — 46 of the Rajya Sabha, and 100 of the Lok Sabha, as they clamoured for a statement by Union Home Minister Amit Shah on a breach of security that involved protesters gaining entry into the chamber of the Lok Sabha on December 13. Notably, 246 questions raised by them were deleted from the records. As opposition social media handles stated, the voices of 240 million Indians (who voted for these members) had been undemocratically silenced.

These protests and suspensions resulted in key bills being passed hurriedly, with little to no discussion. In many cases, the opposition even complained about the drafts of the bills being passed were not even available for scrutiny beforehand, underlying the riding rough shod over democracy by the majoritarian Bharatiya Janata Party (BJP) union government.

As we do each year, Citizens for Justice and Peace (CJP) takes a look back at the bills that were passed by the union government in 2023. The analysis is approached through the prism of basic human rights, fundamental rights and the Indian Constitution.

• Curtailing civil liberties, transforming India to a police state

Three bills were introduced in the Lok Sabha in 2023 that sought to repeal and replace the Indian Penal Code, 1860, Code of Criminal Procedure, 1973, and the Indian Evidence Act, 1872. In the Winter session of the Parliament, three bills, namely the Bharatiya Nyaya (Second) Sanhita, 2023 (“BNS”), Bharatiya Sakshya (Second) Bill, 2023 (“BSB”), and Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (“BNSS”) which were passed in the Lok Sabha on December 12, 2023, and the Rajya Sabha on December 20, 2023. On December 25, the three bills had received the assent of President Draupadi Murmu. These bills had been brought in with the stated objective of “reforming and de-colonising Indian criminal law”, having been presented as an exercise to indigenise the legal landscape of the country from one that was created during colonial rule. The details are as follows:

The Bhartiya Nyaya (Second) Sanhita Act, 2023- While the said act has majorly re-packaged the provisions available in the erstwhile Indian Penal Code, 1860, some significant changes have been brought in through the second version of the BNS bill.

The BNS Act contains several offences that overlap with special laws, which in many cases carry different penalties or provide for different procedures.  This may lead to multiple regulatory regimes, additional costs of compliance and possibility of levelling multiple charges.

Furthermore, the said Act has also retained the offence of sedition (Section 150) with a new nomenclature and a more expansive definition of what will constitute “Acts endangering sovereignty unity and integrity of India”. Former union minister, present Rajya Sabha member and senior counsel, Kapil Sibal has analysed these new criminal laws, stating that they may allow for the use of “draconian police powers for political ends”. Under newly inserted provisions, he has pointed out, “action against Supreme Court and high court judges, magistrates, public servants, CAG (Comptroller and Auditor General), and other government officials”, could be initiated by the ruling government to exert pressure.

Another important change in the second version of the BNS Act is that is has totally excluded Section 377 of the IPC, which dealt with rape of men and bestiality as offences. Since the said new act does not making the offence of rape as gender neutral, there are now no safeguards against rape available for any other gender. It is critical to highlight that the said new Act had retained the marital rape exception, providing blanket immunity to husbands accused of raping their wives.

It is critical to highlight here that even at the time of writing this piece, protests are being held across the length and breadth of India over some of the provisions introduced by this Act. Through this Act, which was supposedly citizen-centric, stricter penalties and enhanced fines have been brought in without any discussions with experts.

One such example is of the offence ‘causing death by rash and negligent driving of a vehicle, not amounting to culpable homicide’, which has an aggravated punishment of ten years if the driver fails to report it to a police officer or a Magistrate soon after the incident. Against this particular new hit and run law, truck drivers have held countrywide protests, even state bandhs, compelling the union government to concede to their demand that the said new provision will only be implemented after consultation. While the Act (penal provisions) still anchor out-dated and feudal philosophy of harsh punishment, it has also introduced a new community service punishment without any public participation or discussion.

The Bhartiya Nagarik Suraksha (Second) Sanhita Act, 2023- BNSS Act seeks to replace the Criminal Procedure Code, 1973. Passed by the Parliament in the month of December 2023, the act has expanded the possible duration of police custody beyond the initial 15 days to up to 90 days of the arrest, heightening the risk of police excess and custodial torture.

Notably, this extended detention period applies to severe offences punishable with death penalty, life imprisonment, or imprisonment for at least 10 years while for “any other offence” with lesser imprisonment terms, custody extension beyond 15 days up to 60 days is permitted.

In addition to this, the new BNSS also suffers from a glaring gap is the absence of stringent and comprehensive data privacy regulations in this era of technology.

The Bhartiya Sakshya (Second) Act, 2023- The Sakshya Act retains the structure of the Evidence Act with most provisions unchanged.

More importantly, the scheme of legal relevance and conceptual definitions of the categories like “fact” and “evidence” have been left unaltered but for incorporating electronic evidence. The few changes that have been introduced through this Act is regarding streamlining the rules on electronic evidence, and expanding the scope of secondary evidence. Furthermore, the Act had added a new schedule to the legislation which prescribes a detailed disclosure format of the certificate earlier governed by a mere affidavit and self-declaration as to the genuineness of the contents of electronic records. Since this is merely a repackaged version of the “colonial legislations”, the question that it raises is whether these changes could have been brought to the former IEA through basic amendments.

• Right to privacy and digital rights

A total of three bills were introduced in the Parliament in 2023, namely the Telecommunications Act 2023, the Digital Personal Data Protection Act 2023 (DPDP Act) and the Broadcasting Services (Regulation) Bill 2023, which will have an impact on the digital sector in India. These bills and legislations directly impinge on the digital rights of an individual as well as the constitutionally protected right of privacy. These three, out of which two have already become an Act, will give the union government vast power to regulate (read: restrict) the content online, imperil encrypted communication, employ the tool of internet shutdown and intercept communications with minimal accountability.

All these bills and legislations have been greeted with serious criticism by experts and stakeholders for containing vague provisions and attempts to cause irreparable damage to user rights and democratic freedoms.

Since the Broadcasting bill, which seeks to regulate OTT platforms, is yet to be passed by the Parliament and is available for public consultation (until January 2024), we will not be referring to that in this piece.

Another blow to the digital rights and right to privacy was through the Registration of Births and Deaths (Amendment) Bill, 2023 which gave sweeping powers (and control) of birth, death registration data to the union government. This highlights the need to examine the serious implications of the said amendment as it acts as a precursor to the right to vote and is being brought in before the 2024 general elections.

The Telecommunications Act 2023: The Telecom bill was passed by the Lok Sabha on December 20 and the Rajya Sabha on December 21. It is critical to highlight here that the said bill had been passed by the two houses in the absence of the opposition members, as they had been suspended, and without any critical debate. This Bill was given the assent by the President on December 25 that is within four days despite this glaring lapse in parliamentary procedure.

The said act, which seeks to govern our telecommunication services, empowers the government to pause, suspend, intercept and detain transmissions and messages “during public emergencies to prevent incitement for committing offenses.” This particular measure provides officials with significant authority to monitor and manage messages across the entire telecom network on the broad grounds of public safety. In furtherance to this, the act has not legal established the power of the union government to impose internet blackouts without any statutory safeguards.

Additionally, this act has created uncertainty regarding its applicability to online communication services like WhatsApp, Zoom, Signal, Skype, etc. Ironically, even as the act was brought in under the guise of reforming the colonial legislation of its predecessor Telegraph Act of 1885, the Telecom Act 2023 hangs on to a majority of the colonial provisions while also expanding the surveillance power of the union government. One can surely say that with this act, the union government missed a huge opportunity to reform the telecommunication sector and create a rights-centric law that protects user rights instead of infringing on it and tightening the noose around an individual.

The Digital Personal Data Protection Act 2023: The DPDP Bill was passed by the Parliament in early August and soon got the assent of the President, becoming a law governing this country by August 11, 2023.

The drafting of this bill was shrouded in secrecy and drew the ire from activists and experts. To put it mildly, the said act provides governments unlimited powers to use citizens’ data, contains vague provisions and repeatedly uses the phrase “as may be prescribed” and transgresses against the Right to Information Act, resulting in having the potential to redefine the contours of data governance in the contemporary digital landscape. Through this legislation, the government has broad powers to exempt itself, demand information from companies, and retain data for an unlimited period of time, raising the risks of mass surveillance. In furtherance to this, under Section 37 of the Act, the government can block access to websites or content on advice from the Data Protection Board in case of repeated offences by the entity or in the “interests of the general public.” Thus, instead of having provisions that safeguards an individual’s right to privacy, the said act has legitimised discretion of various administrative agencies to indulge in rampant abuse or the exercise of excessive power.

The Registration of Births and Deaths (Amendment) Bill, 2023: The said bill seeks to make changes to The Registration of Births and Deaths Act, 1969 and allows the union government to build a central level data base of all deaths and births. The said bill was passed by the Lok Sabha without any debate or referral to the Parliamentary Select Committee and was then passed by the Rajya Sabha in the month of August. Through the amendments made by this bill, the state Registrars have been mandated to share their database with the Registrar General of India. In furtherance to this, upon approval of the central government, this database can be made available to authorities dealing with preparation or maintenance of databases relating to the population register.

As can be deduced from the provisions highlighted above, direct impact of these amendments will be on an individual’s right to data privacy as sharing of databases with any national authority just with the consent of central government or state government in cases of central and state databases respectively takes away any control the person has on their birth data.

• Environmental Rights and Forest Rights

The year 2023 saw the seamless passing of Biological Diversity (Amendment) Bill, 2021, the Forest Conservation (Amendment) Bill, 2023 and The Mines and Minerals (Development and Regulation) Amendment Bill, 2023. These bills, passed under the guise of “benefitting the environment and helping the country achieve its climate goals”, have weakened the safeguards that were existing against the exploitation of our precious forest resources to the exploitation by private companies.

The changes made also undermined the judicial decisions of the Supreme Court which furthered the principles and ethics of Indian environmental laws, depicting a ‘dereliction of duty’ on behalf of the State who is required to protect and conserve the environment. All the three bills had been passed as the opposition was protesting the Manipur violence, and this no debate had taken place. All the three bills got assent of the President of India in August itself, again within days of their being tabled and passed.

The Biological Diversity (Amendment) Bill, 2021: Through the said act, several controversial changes have been made to the Biological Diversity Act (BDA) 2002. The said amendments have watered down the provisions of fair and equitable sharing of the benefits of the parent Act under the guise of promoting “ease of doing business”. These changes have facilitated the commercial use of traditional resources to promote AYUSH industries, and fast-tracked the patent application process. In addition to this, the amendments have also decriminalised biodiversity offences and replaced them with penalties.

The Forest (Conservation) Amendment Bill, 2023: In the face of the criticisms and protests, the Parliament had passed the said contentious bill in both the houses of the Parliament. The said bill amended the parent Forest Conservation Act of 1980 and exempted land within 100km of border that is needed for national security projects, small roadside amenities, and public roads leading to a habitation from the purview of the forest conservation laws.

While passing the bill, concerns raised by forest dwellers, Adivasis, ecologists, biologists, and naturalists regarding the terrible effects of environmental degradation and climate change were totally ignored by the union government. Another change that was brought in by the bill was that no prior clearance was going to be needed for the construction of any strategic linear project of national importance.

The Mines and Minerals (Development and Regulation) Amendment Bill, 2023: The Bill empowered the union government to exclusively auction mining lease and composite exploration licence for certain critical high value minerals such as gold, silver, platinum, copper. The Bill also dispensed with the cumbersome forest clearances required for mine reconnaissance and prospecting operations, rendering it easier for the private firms to participate in exploration of the country’s mineral resources. It is critical to point out that the said bill allows pitting, trenching, drilling, and sub-surface excavation as part of reconnaissance, which had been prohibited under the parent Act, namely the Mines and Minerals (Development and Regulation) Act, 1957.

• Rights of media and censorship

A noticeable decline in media freedom has been observed in India in the year 2023, along with the country’s denigrating democratic credentials. Through two new legislations, details of which have been provided below, a threat to further increasing government surveillance looms over the media, which will undermine freedom of information and impact press freedom. With a dramatic rise in digital surveillance measures and increasing arrests of media workers on spurious terrorism charges, as became the norm in the year of 2023, the fear of underhanded state retaliation for investigative or critical journalism will promote censorship.

The Press and Registration of Periodicals Bill, 2023: The said bill sought to repeal the Press and Registration of Books Act, 1867 and provide provisions for press, registration of periodicals and for matters connected therewith or incidental thereto. This bill was passed by the Rajya Sabha on August 3, while the opposition was protesting and demanding discussion on Manipur ethnic violence, and by the Lok Sabha on December 21, as the majority of the opposition party members remained suspended.

While the new bill was brought under the spirit of upholding media freedom and ease of doing business, it carried forward the draconian provisions of the previous act as well as widened the powers of the State to have more intrusive and arbitrary checks into the functioning of newspapers and magazines. In the definitions section of the Bill, the term “specified authority” empowered government agencies beyond the Press Registrar to conduct the functions of the registrar, which could even include police and other law enforcement agencies. In addition to this, this bill contained such clauses that allowed the Registrar to deny the right to bring out a periodical, and to cancel the certificate of registration of a periodical, to persons convicted of “terrorist act or unlawful activity”, or “for having done anything against the security of the State”.

The Cinematograph Amendment Bill 2023: The said bill sought to make significant changes to The Cinematograph Act, 1952, tackle the issue of piracy by making it an offence that may be punishable with a fine or imprisonment and empower the central government to order recertification of an already certified film following receipt of complaints.

This Bill was passed by both the houses in July even as questions were being raised against the proposed certification process resulting in excessive censorship, potentially hindering artistic freedom and creative expression. Filmmakers had voiced their opposition to the said amendments by stating the proposed amendments will make them powerless at the hands of the state and more vulnerable to threats, vandalism and intimidation of mob censors. In addition to this, the Bill’s provisions regarding content regulation also sparked debates about potential infringement of the constitutional right to freedom of speech and expression.

• Right to health:

A total of 42 legislations were amended by the Jan Vishwas Amendments passed by the Parliament. These amendments, with the intention of decriminalising offences under them, have the potential of being hijacked by powerful lobbies for their own interests as manufacturers can now escape imprisonment by paying a paltry fine for sub-standard drugs. It is crucial to highlight here that before the bill was introduced in Parliament, neither a draft bill nor the accompanying policy document was published for consultation.

An example of this is how offences of a serious nature have been diluted by this amendment.  Section 27(d) of the Drugs and Cosmetics Act, earlier punished several offences with imprisonment for a minimum of one year and maximum of two years and/or a fine of Rs. 20,000.  The range of offences included the manufacture of “Not of Standard Quality” (NSQ) drugs in India as well as criminalised breach of licence conditions by proprietors of pharmacies. While both of these offences are of a serious nature, in the new Jan Vishwas Act, they have been converted into compoundable offences. The new amendment provides that on paying a  fine of Rs. 20,000, first-time offenders can avoid the minimum prison term prescribed in the provision.

The Jan Vishwas (Amendment of Provisions) Bill, 2023: The said bill, passed by the Lok Sabha on June 27 and the Rajya Sabha on August 2, amid Opposition protests over Manipur violence had sparked a debate among health policy experts and activists due to its “lenient approach” to the crime of manufacturing “not of standard quality” (NSQ) drugs, having an adverse impact on public health.

The said bill had garnered criticism as experts and activists had pointed out to the unfair leniency that this bill was showing to “minor offences” and that less attention had been paid to the adverse impact that the legislation would have on the issue of regulation of pharmacies in India’s drug supply.

• Undermining verdicts of the Supreme Court:

This year saw the Parliament undermining and disregarding the verdicts of the Supreme Court that did not sit well with them by pushing through legislations. These bills, which had severe impact on the smooth and independent working of our Constitution, were then passed by the majority ruling government in the face of criticisms and protests. In one case, the bill brought in and passed by the union government raised questions on the independence and autonomy of the Election Commission of India ahead of general elections. On the other hand, the other legislation, namely the Government of National Capital Territory of Delhi (Amendment) Bill, 2023, undermined the federal structure established by the Indian Constitution.

The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023: On December 29, the president gave her assent to the CEC bill which seeks to regulate the appointment, conditions of service and term of office of the Chief Election Commissioner and other Election Commissioners, the procedure for transaction of business by the Election Commission and for matters connected therewith. The said bill, which will replace the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, was criticised for dropping the Chief Justice of India from its selection committee.

To provide a brief overview, in March of 2023 itself, a constitution bench of the Supreme Court had ruled that the election commissioners shall be selected by a committee comprising the prime minister, the leader of the opposition, and the chief justice, till the parliament frames a law prescribing the selection process.

However, within months of this judgment, the composition of the selection committee was modified by the union government by passing the said bill. This ensured that the selection committee is predominantly composed of members from the ruling government, potentially jeopardising the independence of the Election Commission of India.

The Government of National Capital Territory of Delhi (Amendment) Bill, 2023: On August 3, amid loud protests from opposition MPs who called it “unconstitutional”, the Government of National Capital Territory of Delhi (Amendment) Bill was passed in the Lok Sabha.

The said bill seeks to replace the Delhi Ordinance brought in by the Union government on May 19, 2023, overriding an order by the apex court which ruled that only Delhi’s elected government has authority over civil servants.

Through the Ordinance and the now passed Bill, the union government conferred powers over the transfer and posting of officers to the National Capital Civil Services Authority, breaking the triple chain of accountability established by the court that links the civil services, ministers, the legislature and citizens. One of the biggest criticisms of this bill is that it takes away the Delhi government’s power over services which in turn violates the Indian Constitution’s basic structure.

A read through the details of the legislations and bills mentioned above, along with the ignored criticisms, the suggestions that were not inculcated and fear of the misuse that was ignored, shows that the same will have a long lasting impact on the freedoms and rights guaranteed to an individual by India’s Constitution.

It is also pertinent to highlight the readers here that another legislations that another bill had been passed by the Parliament in 2023 during the special session of the Parliament in India’s new Sansad Bhavan.

The bill, known as the ‘The Nari Shakti Vandan Adhiniyam Bill’ or ‘The Women’s Reservation Bill 2023’, had also been passed by the Parliament in the month of September. The bill is the One Hundred and Twenty Eighth Amendment bill, 2023 to the Indian Constitution.

This bill seeks to reserve one-third of all the seats in the Lok Sabha for women, the state legislative assemblies and the legislative assembly of National Capital Territory of Delhi. The new bill will also apply to the seats that have been already reserved for the Scheduled Caste and Scheduled Tribe communities.

However, since the said bill can only be implemented after 2026, post conducting the delimitation exercise, it will not have any impact on our rights and freedom (or our lives) at present. Hence, the same did not make it to the list of legislations and bills above.

The question that this analysis should leave the reader with, in order to help one determine if the legislation is a good law or a bad law, is the kind of hope it gives one regarding the future of India and its citizens.

An overwhelming majority of the “laws” passed under the pretence of ending India’s colonial history paint an even more dismal picture of the country’s future.

In 2023, almost all the controversial laws that have been passed have a direct impact on the fundamental as well as the constitutional rights that have been guaranteed to the people of India by the Indian Constitution. These weaponised laws, far from ensuring an emancipated citizenry enjoying participatory rights in governance, in fact ensure dangerous tools in the hands of the state (government in power), tools that can be used to seriously erode and impact hard fought for social, economic, cultural and civil rights of all Indians. Instead of passage of laws that are in the people’s interest what we see in 2023 India is the re-emergence of a weaponised police state, albeit an authoritarian majoritarian one.

Detailing these serious drawbacks with regards to the individual’s rights and freedoms that these laws impact, we use the categories of ‘bad laws’ and ‘good laws.’

With the consolidation of such weaponised power in the hand of the state and its enforcement agencies, the future in 2024, for us, “We the People of India” looks constricted, even bleak. As Mohandas Karamchand Gandhi succinctly said,

“An unjust law is itself a species of violence,

Arrest for its breach, is even more so.”

And here we have a detailing of several such, adding to a black list that spans close to a decade.

Related:

Untouchability in 2023 garb: Dalits Speak Out

CJP’s NBDSA Complaints 2023: A look at the repeated violation of ethics and guidelines by Indian television channels

Hate slurs ensure a discriminated citizen: India’s Muslim voices speak up, 2023

Bail not Jail, India’s constitutional courts’ bumpy ride towards personal liberty

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While Article 44 of the Constitution envisages an intent in having a uniform civil code applicable throughout India, the Constitution itself when it gives/gave concurrent power both to the Parliament and to the States to deal with different aspects of personal laws (Entry 5 in the Concurrent List of the Seventh Schedule of the Constitution dealing with marriage and divorce, adoption, succession, and all matters subject to personal law immediately before the commencement of the Constitution)

A Uniform Civil Code (UCC) is intended to replace personal laws and bring out one common law applicable to people of all faiths. Women, fifty per cent of the Indian population would prefer to see a gender just code related to family laws. If a UCC is at all enforced, it would be, in theory at least, able to fix the minimum legal age for marriage, abolish bigamy and resolve issues around interfaith marriages.

Prime Minister Narendra Modi, recently batting for the creation of a Uniform Civil Code (UCC), has once again opened the floodgates for the debate among different cultural and religious groups concerned on how it will impact their personal laws. This articulation by the far, Hindutva right is mired in fallacious notions of parity in ‘uniformity’ and little concerned with abolition of privilege, be it male or majoritarian.

A gender just code, if that were the aim, not “uniformity” would enable some streamlining of present laws related to marriage, divorce, adoption, inheritance, succession, and guardianship. A minimum legal age for marriage may be possible, bigamy abolished at least in law.

Adivasis across central India (Jharkand, UP and Chhattisgarh) and those from the states in India’s north-east where Schedule VI of the Constitution applies see this as an attempt to deleteriously impact their distinct cultural rights that also impact birth, marriage, custim and inheritance.

What has been less debated however is how Hindu laws still prevalent in India (inspite and despite the codification in the 1950s) will be impacted, if at all the exercise is to be non-partisan, inclusive, democratic, gender just and fair.

This article will look at this focus.

The unique legal entity, Hindu Undivided Family (HUF)

A HUF is a (legally permissible) legal entity bearing the same name as the traditional family which consists of all persons lineally descended from a common male ancestor. It consists of the karta, who is typically the eldest person or head of the family, while other family members are coparceners.  Even Jain, Buddhist, and Sikh families can have HUFs.

Income Tax Benefits and the HUF

A HUF account is very similar to an individual account. “The HUF as a tax unit is not of recent origin. This was already there in the Income Tax Act, 1922, the predecessor of the present Income Tax Act of 1961, under which also it has been continued,” said Tax and investment expert Balwant Jain.

Being a separate tax unit, it enjoys a separate tax exemption limit in addition to the various tax breaks under Sections like 80 C, 80 D, 80 DDB, 112A, etc, Jain added.

The income tax slab for HUF is the same as that for an individual, with an exemption limit of ₹2.5 lakh, in the case of the old tax regime. The HUF also qualifies for all the tax benefits under relevant sections of the Income Tax Act and enjoys exemptions with respect to capital gains. However, in the case of the new income tax regime, the exemption limit for HUF is ₹3 lakh.

Impact on HUF after implementation of UCC

If the UCC is ultimately implemented, the legal concept (and privilege enjoyed by) of HUF will have to go. According to Balwant Jain, an expert on tax, doing away with the HUF privilege may need an amendment in the Income Tax Act if no specific provisions in the UCC on the similar line as contained in the “Kerala Joint Hindu Family System (Abolition) Act, 1975″ are included. So if this union government, by no means not non-partisan effects a new “UCC” without requisite amendments to the HUF, the financial privilege enjoyed by the majority remains!  Jain also claims that once the law comes into effect, no Hindu will be entitled to claim any interest in ancestral property due to his birth in the family.

As per Balwant Jain, not only the provisions about the rights of persons taking birth after coming into force of UCC but also provisions about the existing joint family will have to be made either under the UCC or under the Income Tax Laws. Hence, if implemented, UCC is likely to affect crores of Hindu families.

So key is the question of whether the government will do away with the concept of the Hindu Undivided Family or not.

How Personal Laws Control property inheritance in India?

The Uniform Civil Code, if truly “uniform”, intends to dissolve the personal laws practised by different religions in India and replace them with common laws.

Some of the personal laws practised in India are as follows-

Hindu Personal Law: The Hindu personal laws are based on ancient customs and scriptures. While the Hindu Marriage Act 1955 governs the aspects related to marriage, the Hindu Succession Act controls the matters related to property inheritance.

Under the Hindu Succession Act of 1956, Hindu women have been given equal inheritance rights on their parents’ property. Hindu Women have equal inheritance rights on their parent’s property. The property rights of Buddhists, Sikh and Jain communities are also governed by this law.

Coparcenary

Coparcenary refers to a concept in Hindu joint family law where certain family members, typically sons, have equal rights in the ancestral property. Abolishing coparcenary would mean changing or eliminating this legal provision, which could have various impacts on Hindus, particularly those who are part of joint families or own ancestral property.

Some potential impacts that could arise from abolishing the concept/entity of Coparcenary:

Inheritance and Property Rights: Coparcenary rights provide equal inheritance rights to all male descendants of a family. Abolishing coparcenary might lead to changes in how ancestral property is inherited. This could impact the distribution of assets within families and might have social and financial implications.

Gender Equality: Historically, coparcenary rights have been limited to male descendants. Abolishing coparcenary could potentially lead to a more gender-friendly (neutral) approach to property rights and inheritance, ensuring equal rights for daughters and other female family members.

Family Dynamics: Joint family structures and property ownership patterns could undergo changes. Without coparcenary, there might be shifts in decision-making processes within families and potential fragmentation of property ownership.

Legal and Financial Planning: Individuals and families might need to reconsider their estate planning and financial strategies in the absence of coparcenary rights. This could involve creating new legal documents, wills, and trusts to manage property distribution.

Litigation and Disputes: Changes in property rights can sometimes lead to legal disputes and conflicts within families. Disagreements over property distribution might increase if coparcenary is abolished.

Social and Cultural Impact: Coparcenary is deeply rooted in Hindu family traditions and customs. Abolishing it could lead to discussions and debates about the preservation of cultural heritage versus the need for modern legal reforms.

Economic Implications: The impact on the economy could be indirect but significant. Changes in property ownership and inheritance could influence investment patterns, property markets, and wealth distribution.

It’s important to recognize that any changes to legal provisions like coparcenary would likely involve careful consideration by lawmakers, legal experts, and stakeholders, taking into account social, cultural, and economic factors. The specific impacts would depend on the details of the legal changes, the societal context, and the manner in which they are implemented.

A gender just UCC

In the wake of the Law Commission of India’s call for views on the Uniform Civil Code (UCC) from the public at large, advocacy in favour of the UCC has centred on three distinct premises:

1. a) A critique/bashing of Muslim family law, and by extension, the Muslim community as regressive, conservative, orthodox, patriarchal and resistant to change;
2. b) A projection of Hindu family law as progressive, inclusive, and gender-just, which must be emulated and extended to all communities in India; and
3. c) The UCC as an imperative for national integration and women’s equal rights in family law.

The Law Commission, in its Consultation Paper of 2018, had debunked all three premises.

In fact, the 2018 Law Commission Reeport, highlighted some positive aspects of Muslim law such as the concept of Mehr and a one-third limit for willing away property, which ensures that some property is available to the legal heirs, including daughters and other women, by succession.

The 18^th Law Commission also elaborately discussed the discriminatory aspects that continue to irk Hindu family law, and even called for the abolition of Hindu Undivided Family and the Hindu coparcenary with its right by birth in ancestral property.

The Law Commission categorically stated that secularism cannot be contradictory to pluralism and that national integration cannot be advanced through the UCC when “cultural difference informs people’s identity, and its preservation guarantees the territorial integrity of the nation.”

It prioritised gender equality within each religious community, rather than between communities, as discrimination, not difference, lies at the roots of inequality.

Given the constitutional protection and autonomy given to tribal communities in Sixth Schedule states, it also found it necessary to preserve their distinct family law systems and introduce gender-just reforms from within rather than from above.

Keeping key principles such as equality, non-discrimination, personal autonomy and agency, inclusivity, fairness and secularism at the centrality of a potential UCC, here are some aspects that a gender-just UCC could ensure.

Gender inclusivity and diversity in marriage

All family laws speak in gender binaries – man, woman, husband, wife, bridegroom, bride and so on.

Those who identify themselves beyond these binaries, within the spectrum of trans and queer identities, are excluded from the pale of current family laws. They are deprived of a legal recognition of marriage and protection of their matrimonial rights, should they choose to be governed by such laws.

In a landmark judgment in 2019, the Madurai bench of the Madras high court directed the marriage registrar to register a marriage between a cis man and a transwoman, concluding that the term ‘bride’ in the Hindu Marriage Act connotes not only cis women but also trans women. Judgments such as in the Naz Foundation and Navtej Singh Johar cases have foregrounded the importance of self-determination of gender identity.

The bundle of petitions asking for same sex marriages to be recognised in family laws of India have had their final hearings in the Supreme Court and are awaiting judgment.

In May this year, the Supreme Court of Nepal directed the government to register same sex marriages. India could take inspiration from its neighbour.

Broader definition of family

According to family laws in India, a ‘family’ consists of a couple and their minor or dependent children, towards whom they have responsibilities. In cases of a married woman, her husband’s parents are recognised as her family.

However, a heteronormative, monogamous family is a colonial concept that is highly incongruent with the varied forms of family and kinship that have traditionally and are currently in existence in India. These include maitri karaar in Gujarat, nata in Rajasthan, sambandham in Kerala, kareva or chaddar andazi in Haryana, dhuku in Jharkhand, Hijra gharanas, live-in relationships, chosen families and polyamory.

Thus ‘family’ needs to be broadened in tandem with ground realities.

Age of marriage

The statutory age of marriage maybe set at 18 (on par with the age criteria for voting, and the recognised age of majority). The moot point is the consequence of violation of the age criteria. Given that a few years ago, it was reported that 84% of 12 million married children under 10 are Hindus, if all underaged marriages are declared void or legally invalid, such a move will have adverse consequences for all children and their rights within such marriages, particularly from the Hindu community.

Conversely, the concept of ‘option of puberty’ – originating from Muslim law and now incorporated in other laws – provides agency to the underaged party to the marriage to refuse to accept the marriage upon becoming a major.

Agency in marriage and live-in relationships

Inter-religious, inter-caste, inter-class and same sex relationships are –among some– frowned upon and disapproved by the natal family; in many instances, there is collusion between the family, community leaders and vigilante groups, leading to “honour” crimes.

The law must recognise the agency and decisional autonomy of parties to marriage who have attained majority, without the need for any parental permission. The judiciary, through judgments in the cases of Arumugam Servai, Lata Singh, Shafin Jahan and Shakti Vahini, has reiterated the same.

Live-in relationships have been recognised by the Protection of Women from Domestic Violence Act (PWDVA), 2005. Partners deciding to live together without the stamp of the law is a democratic exercise that state ought not to intervene with, using the ruse of Shraddha Walkar and Nikki Yadav cases.

Status of children

There ought to be no differences in rights attributed to children born within a marriage or prolonged live-in relationships (considered legitimate), children born through transient relationships (considered illegitimate), adopted and surrogate children.

Children born in inter-caste, inter-religious or inter-class marriages should suffer no discrimination, in law or in reality.

As suggested by the Law Commission in 2018, all children must be considered legitimate and entitled to inherit property from their parents.

Guardianship and adoption

Where both parents are alive, they must both be given equal status as natural guardians, unlike the Hindu Minority and Guardianship Act, 1956, that recognises the father as the natural guardian, and after him, the mother. All parties must have an equal right to adoption. The right of single persons and persons in same sex relationships to adopt a child must be recognised, in tandem with the submission of the Delhi Commission for Protection of Child Rights to the Supreme Court.  This is because parenting depends on the capacity to and quality of care, not the gender or sexual orientation of the caregiver.

Responsibilities towards parents

All children – biological, adopted and surrogate – irrespective of their gender – must have equal responsibilities towards ensuring the physical, financial and emotional well-being of parents, recognised in law.

Grounds of divorce

Fault grounds of divorce such as cruelty, desertion and adultery, as well as a divorce by mutual consent ought to be equally available to all parties to the marriage.

In May 2023, the Supreme Court stated that it had the discretion to terminate a marriage that had broken down irretrievably, under Article 142(1) of the Indian constitution to do ‘complete justice’ to the parties. However, such a ground must be invoked with caution, after the issue of matrimonial property is settled and the wife’s economic interests secured.

Maintenance and alimony

Even though women must be encouraged to remain financially independent during the subsistence of marriage and upon its divorce, maintenance and alimony must be provided to the financially vulnerable party to the marriage or its dissolution.

Women’s unpaid housework and care work should be attributed a financial value and must be incorporated into the ascertainment of quantum of maintenance and alimony.

Abolition of restitution of conjugal rights (RCR)

The RCR is a matrimonial remedy that compels parties to marriage to live together, in recognition of the aggrieved party’s conjugal rights. This remedy, of colonial origin, was incorporated into Hindu Marriage Act and found its way into family laws governing varied communities, though it was abolished in England in 1970. Though superficially, it applies equally to the parties to marriage, it has disproportionate and adverse consequences for women who may be at the receiving end of violence, raped and unwanted pregnancies.

As stated by Andhra Pradesh high court in T.Sareetha, the woman is stripped of bodily control and autonomy through a court order of RCR. A petition challenging the constitutional validity of this remedy remains pending before the Supreme Court, but the government, in its wisdom, ought to exclude this provision in any proposed UCC, as it is inconsistent with the constitutionally guaranteed fundamental right to life with dignity.

Recognition of concept of matrimonial property

Upon the divorce or death of a party to marriage, an equitable distribution of assets acquired by parties during the subsistence of the marriage, is of prime importance. Such property maybe in the name of the earning party to the marriage, but the theory of social reproduction tells us that the contribution of non-earning party to the home facilitates such an acquisition.

No family law squarely addresses this issue, except in Goa, where too, the rights on paper are at variance with lived experiences of women. If the government is committed to gender equality within the family, it must make provisions for a matrimonial property regime.

Transfer of property by a will

In many northern and western societies, daughters are routinely compelled to sign away their ancestral property rights in favour of their brothers, through relinquishment deeds (referred to as ‘haq tyaag’ in Punjab, Haryana and Rajasthan). Such patriarchal social norms neutralise and defeat legal provisions of equal property rights to daughters.

Taking a leaf from Muslim law, which prescribes that not more than one-third of the property can be willed away, the Law Commission, in 2018, recommended that all family laws prescribe a portion that must be kept aside for dependants of the deceased person, and that the entire property cannot be willed away. The Commission also noted that persons with disabilities, especially women, are denied right to inheritance directly (excluded from wills) or indirectly (not given their share of property), which must be countered by law.

Distribution of property when there is no will

The scheme of intestate succession (when a person owns property and dies without making a valid will) is vastly different under each family law. As suggested by the LCI in 2018, based on the rule of proximity (nearness) in relation to the deceased, the scheme could be classified as follows:

Class 1 – spouse, children, children of pre-deceased children and parents of the deceased.

Class 2 – siblings, children of siblings (if the sibling is not alive) and grandparents.

Class 3 – other relatives.

All surviving Class 1 heirs would take the property entirely among them with one share each; the property would devolve on Class 2 heirs only if no Class 1 heir exists. And on Class 3 if no Class 2 heirs are alive.  This scheme should be gender neutral, and treat biological, adopted and surrogate children on par, and make no distinction between legitimate and illegitimate children.

The above list is not exhaustive, but indicative.

If we are to believe that the government has finally woken up from its slumber (just in time for the 2024 general elections), and is now determined to enact a UCC, we are in a position to decide on supporting it only when we know its contents.

While it is not easy to believe in the bona fides of a government that ignored the Law Commission’s call for gender-just reforms in family laws for five long years (2018-2023), a wish list of what a gender-just UCC could consist of has the potential to concretise and ground the discussions on UCC.

We have the responsibility to analyse the Uttarakhand UCC Bill that has just been announced (on June 30, 2023), and determine what course corrections are required for a national one, if at all.

Hindu Code Bill

Secularism, in the Nehruvian context, does not mean the separation of religion from the state but rather benevolent neutrality towards all religions, which are treated equably. However, this universalist position exists alongside effort to reduce the ascendancy of religion in society. The1950 Constitution strongly influenced by Nehru, did not recognise religious communities but only individuals, to whom it guaranteed in Article 25 ‘freedom of conscience and the right freely to profess, practice and propagate religion’. This ideal concept of religion as a private matter implied a reduction in its sphere of influence through the impact of state in its capacity as the agent of ‘modernisation’. Nehru’s principal achievement in this voluntarist perspective was undoubtedly the Hindu Code Bill.

The Hindu Code Bill was intended to provide a Civil Code in place of the body of Hindu personal law, which had been amended to only a limited extent by the British authorities. The bill was presented to the Constituent Assembly on April 9, 1948 but it caused a great deal of controversy and was subsequently broken down to three more specialised bills which came before the Lok Sabha in its 1952-7 term. The Hindu Marriage Bill outlawed polygamy and contained provisions dealing with inter caste marriages and divorce procedures; the Hindu Adoption and Maintenance Bill had as its main thrust the adoption of girls, which till then had been little practised (or accepted); the Hindu Succession Bill placed daughters on the same footing as widows and sons where the inheritance of family property was concerned.

These bills aroused strong opposition from the Hindu nationalists. In Parliament N.C. Chatterjee, the Hindu Mahasabha leader, and S.P. Mookerjee protested vehemently against what they took to be a threat to file stability and integrity of traditional forms of marriage and the family in Hindu society. However, one of the most vehement critics of the government’s proposals was Swami Karpatriji, a sanyasi who belonged to the Dandis, one of the orders founded by Shankara. He had won respect for his knowledge of Sanskrit texts, his asceticism (he had spent long periods in solitude in the Himalayas) and for his skill as an orator. It was a measure of his authority that he had been involved in the selection of the four major Shankarachryas. In 1940 he had founded the Dharma Sangh (Association of Dharma), a cultural association for the defence of traditional Hinduism. In 1941 he founded a daily paper Sanmarg. After 1948 he turned towards politics and established the Ram Rajya Parishad (Council of the Kingdom of Ram) to serve as a political party. This body organised numerous demonstrations against the Hindu Code Bill; 15,000 people, including personalities such as the Princess of Dewas Senior (a former princely state in Central India), attended a week- long conference in Delhi at the beginning of 1949.

Hindu nationalists, for their part, were particularly exasperated that the civil law reform concerned only Hindus, whereas the Constitution enjoined (in article 44 of the Directive Principles) the State to give India a uniform Civil Code: hence Mookerjee’s declaration that the “government did not dare to touch the Muslim community.” Nehru’s secularism suffered here from a certain ambiguity or at least a lacuna, doubtless due to his concern to reassure the Muslims who had chosen to remain in India. He was prepared to condone the right of civil courts to apply Muslim personal law in cases affecting Muslims.

In his view, the majority community had duties towards the minorities. As S. Gopal points out: “He urged incessantly the importance of generous treatment of the minorities so that they would feel that they were Indians, and be completely at home.’ Such an attitude could be denounced as an anti-Hindu bias while the RSS later described it as ‘pseudo-secularism’. In the early 1950s, however, the campaigns undertaken in this direction succeeded in having the Hindu Code Bill amended and the parliamentary vote delayed but failed to mobilise widespread support or even win that of the traditionalists in Congress. Rajendra Prasad, who was elected President of the Republic in 1950, was distressed by a project whose ‘new concepts and new ideas…. are not only foreign to Hindu Law but may cause disruption in every family’. He argued that the proposal for reform should first be included in the party’s election manifesto and placed before the voters before any discussion in Parliament.

Nehru had to make many concessions to the bill’s critics, including Rajendra Prasad. Although the bills which were adopted by the new Parliament in the mid-1950s were thus less far-reaching in scope than Nehru had originally intended, they were a solid testimony to his ability to impose his views on others and to defy the Hindu traditionalists.

Reforms in enactments of Hindu Law

1. Hindu Marriage Act, 1955

The aforementioned enactment itself is proof of evolution in the orthodoxy of Indian society. Marriage is considered a ‘Sanskara’ by Hindus and it cannot dissolve. The dissolution of marriage was considered an initiative against the custom.

But, section 13 in the act brought everlasting reforms and combated a persisting inequality. In 2010, the legislature attempted to bring several other changes by including sections 13C(1), 13D, and 13E in the act to make it more gender neutral and circumvent the way of patriarchy.

The bill was passed in the upper house but lapsed in the Lok Sabha. Moreover, divorce with mutual consent enshrined in section 13B of the act is an epitome of the evolution in the law.

2. The Hindu Adoption and Maintenance Act, 1956

The Personal Laws (Amendment) Act of 2010 eradicated gender bias and made a neutral provision by substituting section 8 and amending section 9 of the existing act. Subsequently, the amendment of 2010 made the concept of giving a child in adoption equivalent for both males and females.

3. The Hindu Succession Act, 1956

Hindu Succession Act of 1956 contains provisions for inheritance and succession in the coparcenary property and the self-acquired property.

Section 23 of the act contained a special provision regarding the dwelling house. The said provision disentitled a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. And, she did not possess a share in the coparcenary property. The section was repealed by the Hindu Succession (Amendment) Act, 2005.

The aftermath of the amendment was still a bone of contention as various courts interpreted the amendment’s applicability in diverted directions. Few courts considered that the act does not have a retrospective nature and hence it will only be applicable to daughters born after 2005 or whose fathers are dying by leaving a property after 2005. In Prakash vs. Phulwati  (2 SCC 38 2016), the apex court declared that the amendment of 2005 is not retrospective in nature. And, the same interpretation was reiterated in Danamma vs Amar in 2018  (3 SCC 343 2018).

Nonetheless, the apex court considered a matter of the same issue in Arunanchala Gounder (Dead) vs. Ponnuswamy and declared that the amendment of 2005 has retrospective effect. And, the Court also re-interpreted the intent of the legislature by stating that self-acquired property of males subject to Hindu religion dying intestate would devolve by inheritance instead of succession.

Moreover, reforms in daughter’s equal coparcenary right as a male heir in joint Hindu family property were brought in the case of Vineeta Sharma vs. Rakesh Sharma (4), at least judicially.

(The article has been researched by Rishi Singh an intern with the organisation)

[1] https://thewire.in/law/what-a-gender-just-uniform-civil-code-could-look-like

https://www.livemint.com/money/personal-finance/income-tax-how-uniform-civil-code-ucc-in-india-will-impact-huf-hindu-undivided-families-tax-outgo-11688106451209.html

https://www.magicbricks.com/blog/uniform-civil-code/132416.html

https://www.outlookindia.com/website/story/nehru-and-the-hindu-code-bill/221000

https://adjuvalegal.com/indian-laws/equality-reforms-in-hindu-personal-law/

The post Will a “Uniform Civil Code” abolish the Hindu Undivided Family (HUF) and coparcenary rights over ancestral property for Hindu males? appeared first on SabrangIndia.

A division bench comprising Justices S Ravindra Bhat and Aravind Kumar has recently issued significant orders regarding the Arnesh Kumar case guidelines. The High Courts are now directed to frame these guidelines in the form of notifications, to be adhered to by Sessions Courts and other criminal courts.

Furthermore, the Directors General of Police in all States have been given clear instructions to ensure strict compliance with these guidelines. The concerned authorities must issue the necessary directives, guidelines, and departmental circulars within a span of eight weeks, as stipulated by the Court.

Additionally, the bench has mandated that an affidavit of compliance be filed before the Supreme Court within ten weeks, indicating that the authorities have adhered to the provided directions.

These directions were issued while granting bail to a man accused in a matrimonial dispute, facing charges of dowry harassment, cruelty, and criminal intimidation. The bench observed that the High Court had simply rejected the accused’s anticipatory bail plea without proper consideration and instead ordered him to surrender before the trial court and seek regular bail.

Following the accused’s appeal before the Supreme Court, the apex court reaffirmed the principle that bail should typically be granted, upholding an individual’s right to personal liberty under Article 21 of the Constitution.

The bench acknowledged that in grave cases, the Court may exercise its discretion in granting or denying bail based on factors such as the seriousness of the alleged offense, the accused’s potential to influence the investigation, the likelihood of absconding, and other relevant considerations.

However, in the present matter, the Court found that the accused had been cooperative during the investigation, and there were no exceptional features or circumstances that would disqualify the accused from obtaining pre-arrest bail.

The Supreme Court further expressed the view that since the charge sheet had been filed, the High Court should have automatically granted bail in this case.

The Supreme Court found that despite the appellant’s plea, the High Court did not consider the matter thoughtfully and, rather mechanically, rejected the bail application. To compound the matter, the High Court ordered the appellant to surrender and seek regular bail before the Trial Court, which added insult to injury. The apex court deemed this approach by the High Court to be a grave error, as it displayed a lack of seriousness in handling the case. Consequently, the bench took the decision to overturn the High Court’s order and granted the bail plea, acknowledging the need for a fair and just treatment of the matter.

Arnesh Kumar vs. State of Bihar AIR 2014 SC 2756

Introduction

Section 498-A was introduced into the Indian Penal Code in 1989 through the Criminal Law (Second Amendment) Act with the primary intention of safeguarding wives from dowry-related abuse and holding perpetrators accountable.

However, the Court has observed a significant increase in marital conflicts in recent years. Section 498-A’s non-bailable and cognizable nature has led to its misuse by disgruntled women. According to the “Crime in India 2012 statistics” issued by the National Crime Records Bureau, Ministry of Home Affairs, a staggering 1,97,762 individuals were arrested in India in 2012 under Section 498-A of the IPC. The report further revealed that 3,72,706 cases were pending trial, with an estimated 3,17,000 of them anticipated to result in acquittals.

Analysing the data from the aforementioned report, it becomes evident that a majority of those arrested would eventually be released following the trial. However, this protracted legal process and the initial arrest inflict permanent damage to the reputation of the accused and their family, leaving irreparable scars.

The landmark case of Arnesh Kumar v. State of Bihar (2014) holds paramount significance in criminal law as it established guidelines for making arrests. In this case, a wife had accused her husband of dowry demands, leading to legal proceedings.

Facts of the case

1. Arnesh Kumar, the petitioner, is married to Sweta Kiran, respondent number 2, and their wedding ceremony took place on July 1, 2007.
2. The wife alleges that her mother-in-law and father-in-law demanded a dowry of Rs. 8 lakhs, a Maruti car, an air-conditioner, a television set, and other items. When she raised this issue with the appellant, he sided with his mother and even threatened to marry another woman.
3. Furthermore, it is claimed that she was forced to leave the matrimonial house as the dowry demand remained unfulfilled.
4. Disputing these accusations, the appellant sought anticipatory bail, but both the learned Sessions Judge and the High Court rejected his application.
5. Having exhausted all avenues for anticipatory bail, he approached the Supreme Court with this Special Leave petition in a bid to seek relief.

Issues raised

The case brought forth several pivotal issues for consideration:

1. Eligibility for Anticipatory Bail: The primary question was whether the appellant is entitled to obtain anticipatory bail in light of the charges against him.
2. Obligation of Police Officers in Arrest: The court addressed whether it is obligatory for a police officer to arrest a person based on a complaint if the individual is suspected of committing a cognizable offense. Additionally, the court explored the standards that the investigating agency should adhere to while effecting such arrests.
3. Misuse of Section 498-A: Another significant matter addressed was the recourse available in cases where a woman abuses Section 498-A of the Indian Penal Code, 1860, which pertains to cruelty against women, particularly in relation to dowry demands.

Provisions of criminal law involved

The matter addresses the following provisions:

1. Section 498-A of the Indian Penal Code, 1860: Pertaining to cruelty against women, specifically in connection with dowry demands.
2. Section 4 of the Dowry Prohibition Act, 1961: Relating to the prohibition of dowry and the penalties for giving or taking dowry.
3. Sections 41, 41A, 57, 167, 438 of the Code of Criminal Procedure, 1973: Addressing various aspects of arrest, investigation, and bail procedures.
4. Article 22(2) of the Constitution of India, 1950: Encompassing the rights of an arrested person, particularly the right to consult and be defended by a legal practitioner during interrogation.

Judgement

On July 2, 2014, a pivotal decision was rendered by a two-judge panel of the Supreme Court in the case of Arnesh Kumar vs. State of Bihar & Anr. The bench, reaching a majority consensus, granted bail to the appellant with specific conditions.

In response to Arnesh Kumar’s Special Leave Petition contesting his detention and the arrest of his family under section 498-A of the Indian Penal Code, 1860, the Supreme Court issued essential guidelines. The bench took note of the fact that the non-bailable and cognizable nature of section 498-A had turned it into a potent tool for disgruntled wives, leading to the unwarranted detention of innocent individuals without substantial evidence. The Court observed that some women were misusing the anti-dowry legislation (section 498-A) to subject their husbands and in-laws to harassment.

In light of this, the Apex Court prohibited the police from making arrests solely based on a complaint. Instead, the Court directed the police to adhere to section 41 of the Code of Criminal Procedure, 1973, which outlines nine key points that must be considered to determine the necessity of an arrest. Furthermore, the Court emphasized that a magistrate should decide whether an arrested person needs to be held in further detention, providing an added layer of scrutiny to the arrest process.

After discussing the provisions aimed at safeguarding against arbitrary arrests, the court proceeded to establish comprehensive guidelines to be followed during arrests. The court directed as follows:

1. State Governments should instruct their police officers not to resort to automatic arrests when a case under Section 498-A of the IPC is registered. Instead, they must diligently assess the necessity for an arrest based on the parameters laid down under Section 41 of the Cr.PC.
2. Police officers should be provided with a checklist containing specified sub-clauses under Section 41(1)(b)(ii). When arresting an accused, the police officer must fill out the checklist and provide the reasons and evidence that justify the arrest while producing the accused before the Magistrate for further detention.
3. The Magistrate, before authorizing the detention of the accused, should thoroughly examine the report furnished by the police officer as mentioned above. Only after recording satisfaction should the Magistrate grant authorization for detention.
4. The decision not to arrest an accused should be communicated to the Magistrate within two weeks from the date of case registration, with a copy provided to the Magistrate. The Superintendent of Police of the district may extend this period for valid reasons, to be documented in writing.
5. Notice of appearance under Section 41A of Cr.PC should be served on the accused within two weeks from the date of case registration. This period may be extended by the Superintendent of Police of the District, with the reasons recorded in writing.
6. Failure to comply with the above directions will not only render the concerned police officers liable for departmental action but may also subject them to punishment for contempt of court, which will be instituted before the High Court with territorial jurisdiction.
7. Any judicial Magistrate who authorizes detention without recording reasons as specified above will be subject to departmental action initiated by the appropriate High Court.
8. The aforementioned directions are not limited to cases under Section 498-A of the IPC or Section 4 of the Dowry Prohibition Act but are applicable to cases where the offense is punishable with imprisonment for a term that may be less than seven years or extend up to seven years, with or without a fine.

The entire judgement may be read here.

In Re v. Chandan Kumar, Contempt Application (Criminal) No. – 5 of 2022, decided on August 18, 2022

In this case , Chandan Kumar, who is the Incharge of Police Station in Kanth, District Shahjahanpur, was served a notice under Section 41-A Cr.P.C. but falsely claimed that the accused declined to accept it. He tried to give a communal angle to the situation, mentioning potential communal riots as the accused belonged to a Muslim community. However, the court found no evidence of such apprehension as the FIR was not even lodged at the police station without higher authorities’ intervention.

Chandan Kumar’s actions were an attempt to bypass the Supreme Court’s guidelines laid down in the Arnesh Kumar case. The bench, consisting of Justice Suneet Kumar and Justice Syed Waiz Mian, refused to be lenient in sentencing, as it would not serve the public interest and administration of justice. To uphold public respect and confidence in the judicial process, the court ordered Chandan Kumar to undergo simple imprisonment for 14 days and imposed a fine of Rs. 1000 for committing contempt.

The entire judgement may be read here.

Mahendra Pratap Singh v. State Of U.P. Thru. Secy. Home U.P. Civil Secrett. Lko. And Others , criminal miscellaneous writ petition no 1006 of 2023

The Allahabad High Court directed the Uttar Pradesh Police to comply with Section 41A, CrPC, and follow the Supreme Court’s guidelines in the Arnesh Kumar case. The plea sought to quash the FIR, but the court denied the relief and instructed the police to adhere to the mentioned mandates. The FIR was lodged against individuals accused of burning copies of Ramcharitmanas in support of a political leader. The petitioner’s counsel emphasized that the offences mentioned carry up to 7 years of imprisonment, making arrest an exception according to the Supreme Court’s ruling. Instead, the accused should be served a notice for appearance under Section 41A, CrPC.

The entire judgement may be read here.

 Gopika Jayan & Anr vs Faisal MA contempt case no 427 of 2022

The Kerala high court has sought an explanation from a judicial officer for remanding two accused person in a case where arrests were made in violation of Arnesh Kumar guidelines, directed to adhere to the guidelines in future.

The entire judgement may be read here.

Kuldeep vs state of Karnataka writ petition no 24832 of 2022

In this case the Karnataka high court awarded 3 lakh rupees as compensation to a young advocate who was found to be illegally arrested and assaulted by the police. It was opined by the court that because police has been vested with the power to arrest they can not arbitrarily use that power and arrest anyone.

The entire judgement may be read here.

Conclusion

The Supreme Court has made it unequivocally clear that arrests cannot be made in a routine manner. Such arrests violate the fundamental rights of citizens and go against the very essence of our constitution. In addition to various Supreme Court judgments, the Code of Criminal Procedure (Amendment) Act, 2008, has introduced adequate safeguards to ensure lawful and cautious exercise of the power to arrest (e.g., Insertion of Section 41A). However, the lacking aspect lies in the stringent implementation. It is crucial to educate the police about the boundaries within which they can exercise their power to arrest, and any arbitrary use of this power should be met with severe consequences.

[i] https://legalvidhiya.com/arnesh-kumar-vs-state-of-bihar-air-2014-sc-2756/#:~:text=Arnesh%20Kumar%20V.%20State%20of

https://www.studyiq.com/articles/punishment-for-voilating-arnesh-kumar-guidelines-of-arrest/

https://lawbeat.in/amp/news-updates/allahabad-hc-orders-police-follow-mandate-section-41a-crpc-arnesh-kumar-guidelines-ramcharitmanas-burning-case

https://m.timesofindia.com/india/sc-arrest-shouldnt-be-done-as-routine/amp_articleshow/85472657.cms

The post Arrests: a prudent exception in cases with lesser sentence appeared first on SabrangIndia.

The South Asian lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQIA+) population has looked to the Himalayan nation as a beacon of hope for their rights. In 2007, Nepal became the first nation in South Asia to formally recognize the third gender. Since then, the rights of gender and sexual minorities have gradually been realised and improved.

In a historic step, Nepal has become the first nation in South Asia to legalise same-sex unions, joining the tiny but increasing group of countries in the Asia-Pacific that have acknowledged this basic human right. The Supreme Court of Nepal issued a historic interim judgement on Friday ordering the Nepali government to formally recognise same-sex marriage, marking a significant step towards inclusivity and equality. This order by Justice Til Prasad Shrestha emphasises the necessity of significant changes to the current National Civil (Code) Act of 2017 (2074) provisions. According to the Family Law, marriage is defined as a relationship between “a man and a woman accepting each other as the husband and wife”. Adhip Pokharel, a Nepali national, and Tobias Volz, a German national, petitioned for this historic change. When Volz applied for a non-tourist visa to live in Nepal as Adhip Pokharel’s spouse in 2022, the couple—who had wed in Germany back in 2018—met with substantial challenges. The application was turned down by the authorities, who cited Nepal’s lack of legislative protections for same-sex unions as their justification. The pair was determined to stop this discriminatory practise, so they brought their case to the Supreme Court, which ultimately resulted in the issuing of an order granting the German citizen a non-tourist visa.

The legal journey to Same-sex marriages in Nepal

The lengthy and complex process that Nepal’s courts went through to recognise and legalise same-sex marriage is examined in this essay, along with the possible implications for an upcoming Indian Supreme Court decision.

On June 28 2023, the Supreme Court of Nepal made a historic decision that opened the door for marriage equality in the nation, making Nepal the first South Asian to legalize same-sex marriages and the fourth in the Asia-Pacific to do so. Justice Til Prasad Shrestha ordered the government to immediately begin registering same-sex marriages while working on legislation to modify the current law, despite the civil code currently defining marriage as being between a man and a woman

The Supreme Court of Nepal’s interim judgement calls for the creation of a “transitional mechanism” for the registering of weddings for the nation’s gender and sexual minorities. In addition, the directive instructs the PMCMN and the office of the Prime Minister to establish a “separate register of marriages” specifically for heterosexual and homosexual couples.

The interim order is based on Article 18(1) (right to equality) of Nepal’s 2015 Constitution and Section 69(1) (freedom of marriage) of The National Civil (Code) Act of 2017 which promote the recognition of marriage rights for people based on their gender identification and sexual orientation. It requests that the regulations pertaining to marriage and the registration of

Although there have been occasions when implementation has lagged, Nepal’s Supreme Court has won praise for its decisions in favour of LGBTQIA+ rights.

LGBTQIA+ individuals in Nepal have historically experienced significant discrimination and stigma. From their families, neighbourhoods, and places of employment, they frequently experienced hatred, rejection, and isolation. LGBTQIA+ people experienced verbal, physical, and emotional abuse, which had a serious negative impact on their mental and emotional health.

An important LGBTQIA+ rights group called the Blue Diamond Society (BDS) was established in Nepal in 2001. It was essential in spreading knowledge about LGBTQIA+ issues, offering support services, promoting legislative changes, and questioning social conventions. To provide a safe environment for LGBTQIA+ people, BDS ran community centres, outreach programmes, and pride marches.

Protests and demonstrations were organised by LGBTQIA+ activists in Nepal to demand their rights and oppose the country’s discriminatory laws and social mores. Although these activists encountered a lot of opposition and backlash, their work was crucial in spreading knowledge and rallying support for LGBTQIA+ rights.

The LGBTQIA+ population in Nepal was disproportionately impacted by the HIV/AIDS epidemic. Many LGBTQIA+ individuals were hesitant to seek healthcare treatments and support because of social stigma and discrimination. In order to address the confluence of LGBTQIA+ rights and public health, organisations like the Blue Diamond Society campaigned to give HIV/AIDS preventive information, testing, and support to LGBTQIA+ people.

Sunil Babu Pant Case- Catalyst for Change

A crucial court case, for LGBTQIA+ rights in Nepal was Sunil Babu Pant v. Government of Nepal[1]. The case was brought in 2007 by LGBTQIA+ activist and Blue Diamond Society founder Sunil Babu Pant, who questioned the validity of Nepal’s laws that make same-sex partnerships illegal.

The legal code of Nepal at the time, Section 377, used to criminalise “unnatural sexual intercourse” and target coerced same-sex partnerships. According to Sunil Babu Pant, this clause went against the Interim Constitution of Nepal’s guarantees of equality, non-discrimination, and privacy.

The Sunil Babu Pant v. Government of Nepal case was a significant advance for LGBTQIA+ rights. The LGBTQIA+ community was represented by the petitioners, who argued against Nepal’s discrimination against them and failure to recognise their preferred genders. The issuance of birth certificates, citizenship certificates, passports, voter identity cards that recognised their preferred genders, and the decriminalisation of consenting same-sex sexual activity were among the legal recognition and protections they sought.

The court ruled that under the different articles of the Constitution and the international agreements that Nepal has ratified, LGBTQIA+ people are entitled to equal protection and rights.  According to the court, a person’s gender identity and sexual orientation are protected by their right to privacy and cannot be accessed without their consent. LGBTQIA+ people’s privacy was violated by treating their sexual behaviour as unnatural.  A committee was established by the court with the mission of researching and defending the rights of minority groups, including the LGBTQIA+ community. The committee was tasked with advising the state on the adoption of suitable legal legislation to safeguard LGBTQIA+ rights.  The court ordered the state to implement appropriate legal provisions to protect the rights in accordance with the committee’s recommendations. This verdict suggested the need for extensive legal changes to eliminate discrimination and give LGBTQIA+ people legal protection.

The Sunil Babu Pant case established crucial precedents for LGBTQIA+ rights in Nepal by reaffirming their legal equality, right to privacy, and dignity. Additionally, it emphasised the state’s responsibility to end prejudice and led to the formation of a committee to direct legislative improvements. These conclusions were important advancements in Nepal’s legal protection and acknowledgment of LGBTQIA+ rights. This verdict suggested the need for extensive legal changes to eliminate discrimination and give LGBTQIA+ people legal protection.

Early in 2015, a report from a government-appointed commission was released, effectively endorsing the legalisation of same-sex unions. However, neither had the same impact as the Supreme Court’s ruling establishing a third gender category. The third option was added to voter records by the Election Commission in 2010, and immigration papers quickly followed suit. Nepal was the first nation in the world to include a third gender in its federal census in 2011. The government also began issuing passports in 2015 that recognised three genders. In the same year, Nepal’s constitution was amended to specifically protect LGBT persons, making it the tenth nation in the world to do so.

Nepal’s progressive Constitution

On September 16, 2015, Nepal’s Constituent Assembly approved a ground-breaking new constitution following a protracted process of review and discussion. Having lost its monarchy in 2008, this was Nepal’s first constitution as a federal republic. Notably, the new constitution of Nepal is the first in Asia to specifically recognise the human rights of LGBTQ individuals.

Numerous sections of the constitution guarantee safeguards and rights for LGBT people. Article 12 gives people the freedom to indicate either their preferred gender identity—male, female, or other—on their citizenship documentation. The state and the judiciary are expressly forbidden from discriminating against gender and sexual minorities when enforcing the law under Article 18. Additionally, it enables the government to create specific legal provisions that develop, protect, and defend the rights of sexual and gender minorities as well as other oppressed and marginalised groups.

In order to encourage inclusiveness and representation, Article 42 also acknowledges gender and sexual minorities as a group with the right to participate in governmental processes and public services.

The Supreme Court of Nepal’s ground-breaking decision from December 2007 helped pave the way for this momentous development in Nepal’s constitution. The court’s ruling prepared the way for the inclusion of gender and sexual minorities’ rights in the nation’s constitution by laying the foundation for their recognition and protection.

Nepal’s constitution demonstrates a progressive position by specifically recognising the human rights of LGBT people and marks a significant turning point in the country’s advancement of equality and non-discrimination.

The court in the Sunil Babu Pant judgement also observed that the right to marriage is an “inherent right” of an adult based on free consent and will. However, it appears that the government’s legislative ineptitude in carrying out these court orders continues. In fact, there are some instances where the government has shown a reluctance to recognise the equal rights of the gender and sexual minorities, such as when it maintains a strictly gender-binary definition of marriage under Sections 67 (marriage deemed to be concluded) and 68 (marriage to be inviolable social bound).

The Supreme Court of Nepal has recently made decisions based on the principle of Stare decisis, citing other decisions it has made regarding LGBTQIA+ rights. The court strengthened the legal recognition of same-sex marriages and established a progressive trajectory in defending the rights of sexual minorities by being consistent and expanding on prior precedents.

Impact on Neighbouring countries and Global precedents

The Penal Code (Amendment) Bill, 2023, which aims to repeal legislation criminalising intimate conduct between consenting adults, was recently dismissed by the Supreme Court of Sri Lanka. The court found that the proposed legislation would guarantee everyone equal protection under the law regardless of sexual orientation, strengthen fundamental rights, and enable people to live with dignity. Recognising the right to privacy and liberty, the court emphasised that it is not the function of the government to regulate adult-to-adult private consenting sexual interactions.

This advancement in Sri Lanka is consistent with the historic decision rendered on March 22 by the Supreme Court of Nepal. The Supreme Court of Nepal recognised the equality of marriage and ordered the Ministry of Law and Justice to draught an equal marriage law or change current legislation to reflect this. Since the court’s ruling in Sunil Babu Pant v. Government of Nepal in 2007, which recognised the third gender legally and upheld the right to marriage as an inherent right based on free consent and will, non-heterosexual weddings have been accepted in Nepal.

The region’s neighbouring nations are significantly impacted by Nepal’s progressive position on LGBTQIA+ rights. The Supreme Court of India, a neighbouring country, decriminalised homosexuality in 2018 and is currently taking requests for non-heterosexual couples to be treated equally in marriage. The ruling in Nepal establishes a precedent and motivates comparable debates and legal issues in India.

The legalisation of gay marriage in Nepal also demonstrates the nation’s leadership in furthering the rights of South Asian gender and sexual minorities. The steadfast dedication of Nepal’s Supreme Court to equality and the affirmation of fundamental rights serves as a model for other nations in the region.

Conclusion

The legal environment is changing, and it is more crucial than ever to recognise LGBTQIA+ people’s rights. The courts’ emphasis on respect, confidentiality, and equal legal protection is consistent with universally accepted human rights tenets. A rising understanding that consenting private conduct between adults should not be criminalised can be seen in Nepal’s ruling and Sri Lanka’s dismissal of challenges to the repeal of discriminatory laws.

In conclusion, tremendous progress has been made in recognising and defending the rights of gender and sexual minorities in South Asia as seen by Nepal’s ground-breaking decision on marriage equality and Sri Lanka’s rejection of objections to the repeal of discriminatory laws. These developments may influence legal debates and reforms in neighbouring nations, promoting a more welcoming and egalitarian society for all.

LGBTQIA+ activists and advocacy groups in India find inspiration and a role model in Nepal’s legalisation of same-sex unions. The courts would be encouraged to fight for the same rights and official acceptance of same-sex unions in India. Legal advances in one nation can have an impact on judicial rulings and legal debates in neighbouring nations. Nepal’s legalisation of same-sex unions may add to the increasing number of worldwide legal precedents and justifications for marital equality. These precedents could be mentioned in Indian courts while a petition for same-sex unions is under consideration. When same-sex marriage laws are successfully implemented in Nepal, politicians in India may consider making similar changes. The Indian government may come under pressure as a result to deal with LGBTQIA+ rights problems more aggressively and take steps to legalise same-sex weddings or increase the legal status of same-sex partnerships.

(This article has been researched by Hasi Jain, an intern with the organisation.)

same-sex unions[1] Sunil Babu Pant v. Nepal Government, Writ No. 914 of the year 2064 BS (2007 AD)

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On July 19, 2023, the Bombay High Court heard a plea by a lesbian couple seeking protection from their opposing family members, who had filed a “missing persons” complaint to hinder and object to the relationship [1].

By approaching the Maharashtra Police with the complaint, the family was informed about the women’s whereabouts. The couple approached the High Court seeking remedy. The couple had been changing their residence constantly due to threats from family members; they had hence been assured by the state government during a previous hearing that protection would be provided through a constable in plain clothes. However, no such measure was taken. As the Court was informed on July 19 by the petitioners’ advocate Vijay Hiremath, the police had informed the women that they hadn’t received any such order from the High Court, and hence denied the women their guaranteed protection.

While hearing the case, the Court acknowledged the need for such cases to be handled with empathy and sensitivity. The Court also recognized that it is not merely for this singular case, and that sensitization of the police force is needed across the board in the state of Maharashtra.

The bench (comprising Justice Revati Mohite Dere and Justice Gauri Godse will next hear the matter again on July 28.

Analysis

The Bombay High Court’s order certainly comes at a time when sensitization to people’s struggles – especially when said people are a part of minority communities – is much needed.

Madras High Court Judgement (2021)

However, this is not the first time such an order was made by a High Court; on June 7, 2021, the Madras High Court delivered a landmark judgement [2] by issuing guidelines and directions to the police force, judiciary, the central ministry and other law enforcement/legal aid workers regarding the sensitization of employees towards the LGBTQIA+ community.

Justice Venkatesh’s remarkable 104-page judgement sought to not just address social stigmatization and bias against members of the LGBTQIA+ community, but also provided concrete guidelines to enable change to be brought about. These guidelines were directed towards the police and the government, and sought to establish sensitization programmes within the police and prison authorities, district and state legal authorities, the judiciary, physical and mental health professionals, and government ministries [3].

The Madras High Court realized that such revolutionary changes can take time for a thorough implementation to take place; hence, in order to monitor the developments and ensure the guidelines and properly acted upon, the court kept the petition pending. Indeed, this was a wise move, for it allowed Justice Venkatesh to continue to forge the path of inclusivity and equality for which he had laid the foundation through his initial judgement. A couple months after the June judgement, the Court passed a new order to protect members of the LGBTQIA+ community against harassment and insensitive news reporting on social media [4].

These repeated efforts by the Judiciary to change societal views of the LGBTQIA+ community were proved fruitful with the Tamil Nadu government’s attempt to inculcate the spirit of Justice Venkatesh’s judgement by amending TN Subordinate Police Officers’ Conduct Rules, 1964 [5]. The Rules now include the new Rule 24-c, which explicitly prohibits police officers from harassing LGBTQIA+ persons.

Bombay High Court Order (2023)

The Madras High Court’s judgement was a milestone event, and one step further in the direction towards building and nurturing a society where people are free from prejudice and hatred to love whomever they wish to. The Bombay High Court’s order reflects an acknowledgement of the same, with the Court asking Advocate Vijay Hiremath to use the rules set out by the Madras High Court to suggest amendments for the Maharashtra Police’s manner of handling LGBTQIA+ sensitive cases.

“You see what rules are given by Madras High Court and see rules for Maharashtra Police. Then you see what needs to be done and then make submissions. The implementation can happen effectively if you incorporate the guidelines across the State. We want to look at the broader picture,” said the two-judge Bench hearing the case [1].

And looking at the broader picture is a must indeed – impactful change cannot be contained at the individual level. The foundations of the Bombay High Court’s call for an across-the-board sensitization of the Maharashtra police force towards LGBTQIA+ persons and their lives are strong; being cemented in the clearly influential Madras High Court ruling, there is hope for the manner in which Justices Dere and Godse have approached the issue at hand. After all, even the Constitution of our nation was formulated based on the experiences and realities of constitutions from across the world – clearly, utilizing a well-established and functional framework is beneficial to not just the implementers of the framework, but also those affected by said framework.

Taking action on the lesbian couple’s plea, however, does more than just signify the judiciary’s willingness to accommodate people from all walks of life into the nation – it also implies an acknowledgement of the need to provide the LGBTQIA+ community with appropriate protections to safeguard their rights. Article 14 of the Indian Constitution guarantees equal protection of the laws to all, and taking protective measures to uphold LGBTQIA+ rights is a necessary step to ensure access to the right to all people in the nation. Moreover, the scope of Article 21 of the Constitution (which guarantees the right to life and liberty) has been expanded by the Courts to include the right to human dignity and the right to freedom of marriage [6], in addition to the right to privacy (as held by the Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors [7] verdict). The Bombay High Court’s order reflects the cruciality of upholding these rights for LGBTQIA+ persons.

Moving Forward

Gender sensitization and LGBTQIA+ rights are slowly, yet steadily, gaining attention and action from the public and the state. With even the Supreme Court of India initiating steps to increase inclusivity of the community’s members not just within the police force and the judiciary (by releasing an LGBTQIA+ Sensitization Module) [8] but also within its own premises [9], a change for the better has already been set in motion. The recent Bombay High Court’s order is a breath of fresh air from the despairing news bombarded at the public on the daily, for along with it comes the proof that Indian society is on its way to become inclusive in action, and not merely in name as it stands today.

(This article has been researched by Nidhi Kaushik, an intern with the organisation.)

Reference List

[1] https://www.barandbench.com/news/litigation/maharashtra-police-force-should-be-sensitized-to-protect-couples-in-conflict-with-families-bombay-high-court

[2] S. Sushma, D/o. Mr. V. Senthil Kumar and Another Versus Commissioner of Police, Chennai and Others [2021] 5 MLJ 9

[3] https://sabrangindia.in/article/madras-hc-issues-guidelines-sensitisation-stakeholders-lgbtqia-matters/

[4] https://sabrangindia.in/article/madras-hc-bats-lgbtqia-again-issues-more-directions-police-media/

[5] https://sabrangindia.in/article/madras-hc-commends-tn-govt-new-police-rules-glossary-referring-lgbtqia-persons/

[6]https://economictimes.indiatimes.com/news/india/freedom-of-choice-in-marriage-essence-of-personal-liberty-hc/articleshow/95076428.cms

[7] Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors, (2017) 10 SCC 1

[8] https://feminisminindia.com/2022/12/02/a-guide-towards-inclusion-supreme-court-releases-an-lgbtqia-sensitization-module-for-the-judiciary/

[9] https://www.thehindu.com/news/national/supreme-court-initiates-steps-for-inclusive-infrastructure-and-sexuality-sensitisation-for-lgbtqia-community-at-its-court/article66730359.ece

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