This brief assesses this decision of the Gujarat High Court, which ruled that individuals alleged to be “victims” of wrongful religious conversion could be charged with instigation or abetting, irrespective of any lawful (or not) religious conversion under the Gujarat Freedom of Religion Act, 2003. It also reviews the legal landscape for the law, the history of the interim order issued by the Division Bench in 2021, to the Supreme Court, and contemplates the indications of the recent decision for individual autonomy and minority rights in the Constitution.

The Gujarat Freedom of Religion Act was first enacted in 2003 and was reportedly intended to restrict conversions obtained through force, allurement, or fraud. To do this, the Act attempted to restrict conversion by defining the two relevant concepts. “Allurement” is defined broadly to include the providing of material benefit, gifts, or any other means of temptation, while “force” includes not just physical coercion, but social coercion or spiritual coercion. The Act also included certain procedural safeguards and a call for transparency, requiring advance consent from the district magistrate prior to any conversion taking place, and a notice to the district magistrate, after the religious conversion had occurred, regarding the conversion of individuals.

In 2021, the Act was significantly amended, considerably broadening its application. Of particular note was a provision that prohibited conversion engaged in “by marriage,” which meant that any interfaith marriage could potentially be an unlawful conversion and could see criminal consequences. The revised sections (sections 3, 4, 5, 6) elaborated the definitions of unlawful conversion and expanded the consequences, such as longer periods of imprisonment and increased fines, particularly for mass conversions or conversion of vulnerable targets which are minors and Scheduled Castes or Tribes we were physically disadvantaged. Penalizing schemes have also been extended to group converts and not just converts.

Section 3 prohibits conversions through the use of force, allurement, fraud, or marriage, creating a broad ban of both direct actions and indirect inducements involving religious conversion. The later sections 4, 4A, 4B, and 4C, then create specific punishments, voiding any marriage conducted or executed for the purpose of conversion, as well as additional punishments for mass conversion events.

Section 5 establishes punishments for violations, whereas Section 6 establishes a prohibition that prosecutions cannot be made without prior sanction from the district magistrate, ostensibly for frivolous or political motives. Section 6A subsequently reverses the burden of proof, requiring the accused to prove that there was no force or allurement linked to the conversion, effectively reversing one of the cornerstones for criminal law and default criminal procedures.

The impact of these provisions, and most notably for interfaith marriages the criminalizing of conversion by marriage and the reversing the burden of proof, come together to place serious consequences on an interfaith marriage by potentially invalidating the display of an otherwise legitimate marriage if conversion is alleged against either spouse. All of these areas cluster legal implications for individuals, regulating personal choice, religious choice, and marital choice under scrutiny of the State and criminal offenses, thereby restricting voluntary acts of an interfaith marriage and ratcheting-up legal risks.

In conclusion, the legal framework set out by the Gujarat Freedom of Religion Act (sections 3 to 6A) constitutes a restrictive legal environment regulating conversions of religion, particularly where the conversions relate to interfaith marriages, through the expansive definitions of conversion that are illegal, strict procedural controls, and broad criminal liability, with important consequences for both individual freedoms and the rights of religious minorities.

In response to the amendments being contested, the state court in Gujarat issued an interim stay on the most controversial provisions of the amendments for cases involving voluntary interfaith couples in August 2021. The court ruled that criminalizing marriages and cohabitation between consenting adults would infringe on the protected constitutional right to marry and choose a partner contained in Article 21. However, the court’s stay injunction on the operation of the amendment provisions was limited to consensual marriages, permitting enforcement of the amendments in circumstances where force, deceit, or allurement were alleged. A different but related process in the Supreme Court of India is considering the larger constitutionality of the intermediaries of religious domination and sexuality with related petitions filed from several states.

The current Gujarat High Court ruling does not negate or contradict the previous stay issued in 2021, but rather limits the scope and application of that ruling. The 2021 stay was issued by a division bench and expressly protected voluntary interfaith marriages from being the subject of criminal proceedings under the Gujarat Freedom of Religion Act, in instances where there has been no allegation of force, fraud, or allurement. The current ruling deals with a vastly different set of facts and law: in the current case, individuals have been converted (allegedly by inducement or coercion) to a different religion and are implicated in converting others to that religion through means of influencing, coercing, or allurement, often by way of material incentives or social pressure.

The High Court distinctly affirmed that such individuals were not “victims” but instead that they were offenders. The Court explained that even if they were initially converted by force or some allurement and were thus victims, if they engaged in further abetting others either indirectly or directly, then they would be committing a new and separate offence under the Act. The judgement explains that “had those persons, after getting converted, not engaged in any activity of further converting other persons, they could have been said to be victims of conversion. However, on account of their act of influencing and pressuring and alluring other persons to convert… a prima facie offence is made out against them.” In essence, the Court is laying down a clear principle that victimhood does not confer immunity if the individual chooses to act as a direct participant in further conversions.

This line of thinking undermines the conventional legal and moral separation between victims and offenders. Practically, it means any person who may have been coerced (through any means) or manipulated (regardless of the instrument of coercion) into converting can be potentially prosecuted, if they are (even in a minor way) later found to have converted others themselves—even due to social coercion. The risk of this reasoning is that it could potentially spread the net of criminality too wide-reaching, especially with respect to group conversions in closely connected or marginalized communities, where social ties or economic ties or familial ties may have led individuals to join in the group conversion.

From a constitutional standpoint, this raises profound challenges stemming from Article 25 (freedom of religion), and Article 21 (right to autonomy and to marry). The law’s broad definitions and the reversal of the burden of proof (Section 6A) put accused persons, who are often poor or socially vulnerable, at a disadvantage in defending themselves. It is also likely to deter proper practices of religious expression or voluntary religious association. The Supreme Court – as it reviews the constitutional validity of anti-conversion laws in general – will ultimately need to address whether this expansion of liability is proper and consistent with fundamental rights or, alternatively, provides space for arbitrary and discriminatory enforcement against minorities and interfaith couples.

From a constitutional perspective this raises many challenges stemming from Article 21 to Article 25. The law’s reversal of the burden of proof in Section 6A as well puts accused persons who are often socially and financially vulnerable at a great disadvantage in defending themselves which makes it more likely to deter proper practice of religious expressions.

In conclusion, the ruling of the Gujarat High Court in 2025 ventures into uncertain new ground with respect to India’s law regarding conversion by making even so-called “victims” prosecutable if they subsequently aid someone’s conversion. While distinguishing, and not overruling, the prior stay for voluntary interfaith couples, the Court’s decision expands the law’s reach and increases the stakes for individual rights, particularly among minorities and the entire category of vulnerable people. As the Supreme Court now considers and reviews these statutes, it is possible that the ultimate fate of religious freedom in India, as well as the fate of personal autonomy and procedural fairness, rests in the balance.

(The legal research team of CJP consists of lawyers and interns; this resource has been worked on by Urvi Kehri)

Sources: 

1. https://sabrangindia.in/sc-issues-notice-guj-govt-plea-against-hc-stay-anti-conversion-law/
2. https://sabrangindia.in/guj-hc-refuses-remove-stay-sec-5-anti-conversion-law/
3. https://sabrangindia.in/anti-conversion-law-will-not-apply-inter-faith-marriages-unless-there-force-fraud/
4. https://www.opindia.com/2025/10/gujarat-hc-rejects-argument-that-converted-muslims-cant-be-accused-of-forcing-others-to-convert/
5. https://indianexpress.com/article/cities/ahmedabad/victims-of-religious-conversion-can-be-booked-for-offence-if-they-induce-others-to-convert-gujarat-hc-10295684/
6. https://www.barandbench.com/news/forced-religious-conversions-converts-can-be-booked-if-they-lure-others-to-change-religion-says-gujarat-hc
7. https://lawtrend.in/gujarat-hc-victims-of-religious-conversion-can-also-face-prosecution-if-they-later-convert-others/
8. https://indianexpress.com/article/cities/ahmedabad/victims-of-religious-conversion-can-be-booked-for-offence-if-they-induce-others-to-convert-gujarat-hc-10295684/

Related:

“Anti-conversion laws being weaponised”: CJP seeks interim relief against misuse of anti-conversion laws

SC issues notice to 5 states in CJP’s renewed challenge to anti-conversion laws

CJP plea against anti-conversion laws: SC seeks to know status of cases challenging ‘anti conversion’ laws in HCs

CJP, other rights groups challenge Maharashtra Govt GR setting up a Committee to “monitor inter-faith marriages”

The post From Victim to Accused: High Court of Gujarat’s 2025 Ruling on Religious Conversion appeared first on SabrangIndia.

The Supreme Court was hearing Prataphgarhi’s petition challenging an FIR filed by the Gujarat police over his Instagram post featuring a video clip with the poem “Ae khoon ke pyase baat suno”. The poem in question, titled “Ae khoon ke pyase baat suno” (Listen, oh bloodthirsty ones), was featured in the background of a mass marriage video and was posted by Pratapgarhi on the social media platform X. Pratapgarhi created the post after attending the mass marriage in Jamnagar. Allowing Pratapgarhi’s appeal against the high court order, the Supreme Court, however, took a firm stance against the high court’s reasoning.

“Literate and arts make life more meaningful; freedom of expression is necessary for a dignified life. Free expression of thoughts and views by individuals or groups of individuals is an integral part of a healthy civilized society. Without freedom of expression of thoughts and views, it is impossible to lead a dignified life guaranteed under Article 21 of the Constitution. In a healthy democracy, the views of thoughts expressed by an individual or group of individuals must be countered by expressing another point of view.

“Even if a large number of persons dislike the views expressed by another, the right of person to express the views must be respected and protected. Literature including poetry, dramas, films, satire, and art make the life of human beings more meaningful.”

The court also reportedly criticised the Gujarat high court for not quashing the FIR against Pratapgarhi. On January 17, 2025, the Gujarat high court had refused to quash the FIR saying that the poem had references to “the throne” and that responses to the post suggested a potential disturbance in social harmony, the report said.

The court said, that the MP should have known the repercussions of such a post and should have refrained from promoting public disharmony. It observed that further investigation was necessary Pratapgarhi then challenged the high court’s decision before the Supreme Court, which provided interim relief to him on January 25.

“The Courts are duty bound to uphold and enforce the fundamental rights guaranteed under the Constitution of India. Sometimes we the judges may not like the spoken or written words, but still, it is our duty to uphold the fundamental rights under Article 19(1). We judges are also under an obligation to uphold the Constitution and the respective ideals. It is the duty of the court to step in and to protect the fundamental rights. Particularly, the Constitutional courts must be at the forefront to zealously protect the fundamental rights of the citizens. It is the bounden duty of the court to ensure that the Constitution and ideals of the Constitution are not trampled upon.

The endeavour of the Court should be to always protect and promote the fundamental rights including the freedom of speech and expression which is the most important right citizens can have in all liberal constitutional democracy,” the court said.

About the police officers’ haste in filing an FIR, the court said, “The police officer must abide by the Constitution and respect the ideals. The philosophy of the constitutional ideals can be found in the Constitution itself. In the preamble, it is laid down that the people of India solemnly decided to constitute India into a sovereign, socialist, secular, democratic republic and to secure for all its citizens liberty of thought and expression. Therefore, liberty of thought and expression is one of the ideals of our constitution. The police officers being citizens are bound to abide by the constitution and they are bound to uphold the right.”

The FIR against the Congress MP was filed under Sections 196, 197, 299, 302, and 57 of the Bharatiya Nyaya Sanhita, 2023. Section 196 pertains to promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to the maintenance of harmony.

For the offence under Section 196 of the BNS, the court said, “The effect of spoken or written words cannot be judged on the basis of standards of the people who always have the sense of insecurity or those who always perceive criticism as a threat to their power or position.

Gujarat high court had refused to quash FIR

Justice Sandeep Mehta of the Gujarat HC had refused to quash the FIR. The Supreme Court on Friday quashed the first information report (FIR) against Congress Rajya Sabha parliamentarian Imran Pratapgarhi, underlining the significance of free speech and reproaching the Gujarat police authorities for seeking to criminally prosecute a person for ostensibly delivering a message of peace through a poem that Pratapgarhi posted on social media. “No offence was attracted at all,” held a bench of justices Abhay S Oka and Ujjal Bhuyan, while reading out the operative part of the judgment.

The bench emphasised that the free expression of thoughts and views by individuals or groups is an integral part of a healthy, civilized society.

“Without freedom of expression of thoughts and views, it is impossible to lead a dignified life guaranteed under Article 21 of the Constitution. In a healthy democracy, the views of thoughts expressed by an individual or group must be countered by expressing another point of view,” the court observed.

This case against Pratapgarhi stems from the FIR filed in a Jamnagar police station on January 3, invoking various provisions under the Bharatiya Nyay Sanhita (BNS) relating to promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, and doing acts prejudicial to harmony.

In its judgment, the Supreme Court reinforced that “even if a large number of persons dislike the views expressed by another, the right of the person to express the views must be respected and protected. Literature, including poetry, dramas, films, satire, and art, makes human life more meaningful.”

“The courts are duty-bound to uphold and enforce the fundamental rights guaranteed under the Constitution of India. Sometimes we, the judges, may not like spoken or written words, but still, it is our duty to uphold the fundamental rights under Article 19(1). We judges are also under an obligation to uphold the Constitution and its respective ideals,” the bench noted.

The judgment further stressed that it is the duty of the courts, particularly constitutional courts, to zealously protect fundamental rights.

“It is the bounden duty of the court to ensure that the Constitution and ideals of the Constitution are not trampled upon. Constitutional courts must be at the forefront to protect the fundamental rights of individuals, including free speech, which is one of the most cherished fundamental rights for a healthy and vibrant democracy”, it read.

The court observed that the “endeavour of the judiciary should always be to protect and promote fundamental rights, including the freedom of speech and expression, which is the most important right citizens can have in any liberal constitutional democracy.”

The ruling also delivered a stern message to law enforcement, asserting that “police officers must abide by the Constitution and respect its ideals. The philosophy of constitutional ideals can be found in the Constitution itself.”

The entire judgement may be read here:

Related:

Censorship vs. free speech: The Allahbadia controversy

Targeting Press Freedom: The unexplained censorship of Vikatan and the erosion of free speech

‘Free speech under threat’: again, Jamia student moves court against ‘highhanded’ suspension

The post ‘Courts, Police Have Duty to Protect Freedom of Speech’: SC on FIR against Congress MP Over Poem appeared first on SabrangIndia.

This is after an Indian Express Report highlighting the violation of rights. It was the Gujarat High Court Advocates Association president advocate Brijesh Trivedi mentioned the report before the court of Chief Justice Sunita Agarwal and Justice Pranav Trivedi and requested the court to take suo motu cognisance, which the court refused. While relying on the report, Trivedi said, “Now the authorities of (Vadodara) municipal corporation is saying that this can only be decided by court, we (VMC) will not interfere.”

The Indian Express report had showcased how 33 residents of a housing complex comprising 462 units had sent a written complaint to the Vadodara district collector and other authorities, objecting to a ‘Muslim’ moving in, citing possible “threat and nuisance” due to her presence. Calling it a “representation in public interest”, 33 signatories in the ‘complaint’ submitted to the district collector, mayor, Vadodara municipal commissioner and police commissioner have demanded that the dwelling unit allotted to the beneficiary be “invalidated” and the beneficiary be “shifted to another housing scheme”. This is unfortunately symptomatic of the ghettoised nature of our cities and neighbourhoods.

Speaking to the newspaper, The Indian Express,  the 44 year old mother has stated that the protests first began in 2020 when the residents wrote to the Chief Minister’s Office (CMO), seeking her house allotment to be invalidated. She is employed with an arm of the Ministry of Entrepreneurship and Skill Development was allotted a dwelling unit in the Vadodara Municipal Corporation’s (VMC) low-income group housing complex at Harni under the Mukhyamantri Awas Yojana in 2017.

When she heard the news she rejoiced at the prospect of moving with her then-minor son into an inclusive neighbourhood. However, even before she could move in, 33 residents of the housing complex comprising 462 units sent a written complaint to the District Collector and other authorities, objecting to a ‘Muslim’ moving in, citing possible “threat and nuisance” due to her presence. She is the only Muslim allottee in the complex, according to officials.

The newspaper also reported that the Vadodara Municipal Commissioner Dilip Rana was unavailable for a comment to The Indian Express. Deputy Municipal Commissioner Arpit Sagar and Executive Engineer for Affordable Housing Nileshkumar Parmar refused to comment on the issue.  Thereafter it is reported that Harni police station had then recorded statements of all the parties concerned and closed the complaint. The recent protest against the same issue took place some days back, June 10.

Speaking to the Indian Express, the woman said, “I have grown up in a mixed neighbourhood in Vadodara and my family never believed in the concept of ghettos… I always wanted my son to grow up in an inclusive neighbourhood but my dreams have been shattered as it has been almost six years and there is no solution to the opposition I am facing. My son is now in Class 12 and old enough to understand what is going on. The discrimination will affect him mentally….”

Tragically, residents of the colony cite “imminent law-and-order crisis” if Muslim families are allowed to move in. One of the signatories said: “It is the fault of the VMC that they have not cross-checked the credentials of the allottee…It is the general consensus that all of us have booked homes in this colony because it is a Hindu neighbourhood and we would not like persons from other religious and cultural backgrounds to live in our colony. It is for the comfort of both parties…”

Incidentally, the woman currently lives with her parents and son in another area of Vadodara. “I do not wish to sell off my hard-earned property just because of this opposition. I will wait… I have repeatedly tried to seek time with the managing committee of the colony but they do not respond. Just two days before they went public with their latest opposition, they called me asking for the maintenance dues. I said I am willing to pay the same if they provide me with the share certificate as a resident that they have not handed over to me. The VMC had already collected Rs 50,000 as a one-time maintenance charge from all residents, which I have already paid. I am not sure if I can take legal recourse at the moment because the government has not denied me the right to live in the housing colony.”

Indian Express also reported how, another resident of the colony, however, expressed solidarity with the beneficiary. “It is unfair because she is a beneficiary of a government scheme and has been allotted the flat as per the legal provisions… The concerns of the residents could be valid but we are judging people without even interacting with them.”

OBottom of Form0fficials of the VMC’s housing department told the newspaper that since government schemes did not segregate applicants and beneficiaries on the basis of religion, the housing draw was conducted as per the norms. “It is a matter that must be resolved by both parties or by approaching competent courts,” said an official.

The post Vadodara: While refusing to take cognisance of a PIL on report on protests against a Muslim woman allocated a flat under the CM housing scheme, CJI Agarwal stated that the petitioner has a right to petition the court appeared first on SabrangIndia.

As per a report of LiveLaw, the petitioner had filed a plea in the High Court urging a ban on the use of loudspeakers during various times of the day for the Islamic call to prayer.

Arguments during the hearing:

While hearing the matter, CJ Sunita Aggarwal questioned the petitioner whether other religious practices, such playing music during puja or bhajan in temples, did not cause similar public disturbance and disruption owing to noise pollution. The CJ underlined that noise pollution is a scientific matter and asked the petitioner’s counsel to present proof of the purported noise pollution brought on by Azaan, including specifics on decibel levels, as per the LiveLaw report. Meanwhile, the CJ also pointed out that the Islamic prayer of Azaan is only announced for a period of five minutes.

“For how many minutes the azaan goes on? Not less than 5 minutes, where is the question of noise pollution? Show us the decibels. Technically how many decibels of noise [is caused by] azaan?” CJ Aggarwal stated, as per the report of LiveLaw.

In response to the question put forth by the bench, the counsel for the petitioner asserted that the announcement of Azaan exceeded the decibel limit.

To the aforementioned claim, CJ Sunita Aggarwal critically retorted by bringing up the noise pollution created by the usage of a DJ and stated, “Your DJ creates a lot of pollution. We are not entertaining this kind of PIL.”

She further remarked that the practice of Azaan has been going on for years and noted “It is a faith and practice going on years together and it is a moment of only 5-10 minutes. Azaan goes on for less than 10 minutes.”

As per the report of LiveLaw, the petitioner’s counsel then attempted to strengthen their case by arguing that Azaan took place multiple times, including early morning and during the day. The same argument was shot down by CJ Sunita Aggarwal who opined that even in temples “the morning aarti with those drums and music starts early in the morning”.

Further pressing on the bells and drums used in temples, CJ asked the petitioner “That doesn’t cause noise to anyone? Can you say that the noise of the ghanta and ghadiyal remains in the temple premises only? It doesn’t percolate out of the premises?”

The CJ then added, “Mr. Counsel, in 10 minutes a person is making Azaan. How much pollution is caused in that 10 minutes please tell us. Noise pollution is a scientific issue. Since you say noise pollution, if it is scientifically placed before the court, how many decibels is raised?” If there is a scientific method of assessment of pollution of noise, can you argue as per that scientific assessment, this 10 minutes of Azaan is causing noise pollution?”

The Court was dismayed and disappointed to learn that the writ petition, which alleged that Azaan was to blame for the noise pollution, had neglected to include a scientific evaluation of the extent of the noise pollution generated by the prayer offerings while urging for ban on the use of loudspeakers decrying noise pollution.

The bench stated, “If you can argue this, we will permit you. But you are not arguing this. You have not made out any base in the writ petition. Where is the pleading with regard to the decibels? Where is the pleading with regard to the scientific method of assessment of noise pollution in the area?”

The order of the Court

The High Court bench dictated its order and held that it did not find any ground in the petition filed against Azaan as the court failed to understand how the recitation of Azaan through loudspeaker could reach the decibel level required to create noise pollution. The Chief Justice stated, “We fail to understand as to how the human voice making Azaan through loudspeaker in the morning could achieve the decibel [level] to the extent of creating noise pollution causing health hazards to the public at large. The measurements/assessment of noise pollution with the raising of decibel of sound is a scientific method wherein the sound created by a particular instrument etc can be measured to see that the sound caused by it is reaching beyond decibel permissible limit. No such foundation has been laid in the petition to demonstrate that noise created by Azaan for minutes at a stretch at different hours of the day would raise the level of the sound to cause noise pollution. We therefore do not find any ground.”

Based on the information in the record, the Chief Justice observed that the remaining pleas were not supported by any evidence. Notably, the counsel interrupted the CJ as she was dictating the judgment, citing an Allahabad High Court ruling to support the petitioner’s claim that police approval was required. However, as per the LiveLaw report, the CJ promptly intervened, noting that judgments from the Allahabad High Court are not legally binding on their jurisdiction.

Related:

Azaan on loudspeakers does not violate fundamental rights of people of other faiths: Karnataka HC

Allahabad Univ VC can sleep better, Mosque reduces Azaan volume

Another chapter in the politics of Azaan

How did two Delhi Policemen decide to ‘ban’ azaan on their own?

Temple Prayers, Azaan, Ganeshotsav or Garba: How High Does the Decibel Level Go?

The post Gujarat HC on plea banning loudspeakers for Azaan: “Faith and practice going on years together” appeared first on SabrangIndia.

Notably, the Gujarat High Court has granted a stay on the order for three months to allow the accused to move an appeal against the verdict to the Supreme Court. The said stay had been granted on the request made by senior advocate Prakash Jani, who was representing to the accused officers. 

It is essential to note here that the aforementioned judgment had been announced by the High Court bench in the Kheda flogging case. In October 2022, videos showing 13 police officers mercilessly flogging the victims had surfaced on the internet. The said illegal action by the police had been in response to an incident of communal clash that had been reported a day prior wherein it had been alleged that a mob of 150-200 people had allegedly attacked a garba event in Kheda district by pelting stones and had allegedly “hurt religious sentiments”. In the same month, the five Muslim men had moved the court to seek justice.

As per a report of Indian Express, while delivering the verdict, the bench had termed the act of public flogging by the police as “inhumane” and an “act against humanity”. The bench had also delved into the physical and emotional damage that acts of torture or humiliation can cause on the ones subjected to it. In addition to this, the court also emphasized that under the criminal justice system of India, the arrestees have been granted protections and rights. Even when under arrest, the right to life of an arrestee, which also includes the right to life with dignity, cannot be put in abeyance.

As provided in the IE report, the bench also quoted Mother Teresa while pronouncing the sentence. The bench stated that Mother Teresa had said, “Human rights are not a privilege conferred by government, they are every human being’s entitlement by virtue of humanity. The right of life does not depend and must not be contingent on the pleasure of anyone else, not even a parent or a sovereign.” Relying on the same, the bench noted that in this case, the accused cops “have defiled the human rights and dignity of the complainants as if they were conferred with the privilege to do so”, as per IE. 

The court also observed that the ones who are given the power to uphold law and order “should not become depredations of civil liberties for their duty is to protect and not to abdicate” and that an accused person’s “dignity cannot be allowed to be comatose” once the person is in police custody.

Prior to this, on October 16, the five Muslim victims in the case had refused to compromise and settle with the four police officers when they had expressed a desire to pay compensation rather than face such punishment that could affect their careers. 

Background of the case:

In October 2022, a group of Muslim men had allegedly thrown stones at a garba site near a mosque at Undhela village of Kheda. The following day, five Muslims accused of being involved in the incident had been dragged out in public, tied to a pole and beaten with a stick by almost 13 police officers as the crowd had cheered them on. Videos of the flogging went viral on social media. The video also showed the five Muslim men being asked to apologise to the public.

Victims Jahirmiya Malek (aged 62) Maksudabanu Malek (aged 45) Sahadmiya Malek (aged 23) Sakilmiya Malek (aged 24) and Shahidraja Malek (aged 25) had moved the Gujarat High Court in October 2022 itself seeking action against the 13 offending police officers. They had asked the High court to “punish the accused officers for contempt and non-compliance” of the directions enunciated by the Supreme Court in the D. K Basu case. In the said case, the Supreme Court had pronounced detailed guidelines to be followed by the police during arrest and detention and on custodial torture.

Related:

Kheda Flogging case: Muslim victims refuse to compromise and settle with accused police officers

Gujarat: HC questions state on public flogging of Muslim men in Kheda

In Affidavit to High Court, Kheda SP defends policemen who publicly flogged Muslims: Gujarat

Where 4 Muslims were publicly flogged by cops, 39 others live in ‘exile’: Gujarat, Kheda

Kheda public flogging: Gujarat HC issues notice to police, Muslim victims seek action

Kheda police flogging: Victim-Accused files private complaint, court directs police to conduct probe

The post Kheda Flogging case: HC sentences guilty policemen to 14 days simple imprisonment, order stayed for 3 months appeared first on SabrangIndia.

– Justice Chandrachud, Supreme Court of India

“To give birth to an unwanted child or not” was the question that was posed before the Supreme Court in a matter of the abortion of pregnancy of a rape survivor. On August 21, the Supreme Court bench of Justices BV Nagarathna and Ujjal Bhuyan allowed a plea for termination of pregnancy by a 25-year-old rape survivor, who had been refused relief by the Gujarat High Court. Noting that such pregnancy affected the physical and mental health of the woman, the court set aside the order of the Gujarat High Court dismissing the rape survivor’s petition for a medical termination of pregnancy.

Through the said judgment, the Supreme Court reiterated that a woman alone has the right over her body and is the ultimate decision-maker on the question of whether she wants to undergo an abortion. The court also observed that forcing a woman to have a child conceived as a result of rape is against the constitutional philosophy set in India.

What was the case about?

An Adivasi woman in a remote village in Gujarat was the petitioner in the said case. She was allegedly raped under the false pretext of marriage. At 26 weeks, she filed a writ petition in the Gujarat High Court for permission to terminate her pregnancy under Article 226 of the Indian Constitution. She had to move the court as under Section 3 (2B) of the Medical Termination of Pregnancy Act, 1971 termination of pregnancies which were beyond 24 weeks could be permitted only if the said termination were necessitated by the diagnosis of “substantial foetal abnormalities” by a Medical Board.

Proceedings of the case in the Gujarat High Court:

On August 10, the Medical Board submitted their report, which were taken on record by the court on August 23. On the same day, Justice Samir J. Dave had adjourned the matter till August 17 without any reason being specified. On August 17, the High Court refused to grant any relief despite a favourable opinion of a medical board of finding the petitioner to be clinically fit for the termination procedure and rejected the plea.

The order can be read here:

Proceedings in the Supreme Court

Arguments:

On August 19, a special sitting of the bench of the Supreme Court was held to listen to the urgent plea moved by the petitioner for the termination of the pregnancy. The bench had sharply criticised the single judge handling this case and expressed dismay at the nonchalant approach of the Gujarat High Court in dealing with said case. “In such cases, there should be a sense of urgency. Not a lackadaisical attitude treating it as a normal matter! We are sorry to make these remarks”, Justice Nagarathna had added.

On August 21, the bench started the hearing by observing that the petitioner is now nearing the third trimester of her pregnancy, having carried the foetus for 27 weeks and three days. On the rejection of the plea by the Gujarat HC even after the medical board had termed her medically fit to undergo abortion, Justice Bhuyan had stated that the view taken by the high court is against constitutional philosophy, “How can you perpetuate unjust conditions and force the rape survivor to undergo pregnancy?,” as reported by LiveLaw.

During the hearing, Solicitor-General for India Tushar Mehta recalled another instance in which a woman initially insisting on terminating her pregnancy was persuaded to deliver the baby, which was later given in adoption. He stated “We recently encountered this case where a girl was pregnant. The situation was different because the pregnancy arose out of consensual sex. This is more heinous. A team of AIIMS doctors said that pregnancy would be permissible, but the chances of the seven-month-old foetus not surviving would be 80 percent. In this case, the court requested my colleague, Ms Aishwarya Bhati, to meet the pregnant girl and counsel her to carry the baby to term, while assuring her that the State would take responsibility of the child. The girl agreed and was looked after by the government which ensured complete anonymity. She delivered a baby, which was immediately given in adoption by this court exercising its Article 142 jurisdiction to a very good family. This is a beautiful event that has happened before, in this court.”

Responding to the aforementioned argument of the SG, Justice Bhuyan pointed to the stark difference between the facts of the two cases. He stated, “That was not a case of rape, there is a great difference between the two situations.” He further that rape in itself is a traumatic event to begin with, asking a rape survivor to continue with pregnancy is also a perpetuation of the trauma.

Senior Advocate Sanjay Parikh, appearing for the petitioner, also interjected the line of argument and stated that the survivor had not agreed to carry the baby to term.

Solicitor General Mehta had to then clarify his statement saying, “I am not comparing the two situations. This was a good thing that happened. That is why I shared it. I understand that in this case, it is a forced pregnancy and not a voluntary one.”

Justice Nagarathna provided that in the case the foetus survives the process of abortion, the child shall become a responsibility of the state. She said, “The foetus also has an Article 21 right to life. If this foetus survives, let the State give an incubation facility and it will become a child of the State. We are thankful for that. We would have anyway said it in our order,” as reported by LiveLaw.

Responding to this, the solicitor general had assured the bench that all necessary medical facilities would be made available to the rape survivor by the government. “I undertake this personally. If the foetus survives, the State will take the responsibility of providing not only an incubator but also whatever else is required in the paediatric ward of the hospital,” as reported by LiveLaw.

Noting the solicitor-general’s assurance, Justice Bhuyan said, “You can take care of these things subsequently. In the meanwhile, let her undergo the process.”

It is also essential to note that during the hearing, it was brought to the notice of the Supreme Court that pursuant to the Supreme Court hearing the matter on August 19 at 10.30 am and passing its order, a subsequent order had been passed by the same single judge of the Gujarat High Court. As can be understood from the suo moto order passed by the HC, the judge has seemingly attempted to clarify that the order of adjournment was granted in order to enable the counsel to get instructions from the rape survivor on whether she was willing to carry the foetus to term and hand it over to the State’s facility.

As per the LiveLaw report, the Supreme Court bench had taken great exception to this seemingly ‘clarificatory’ order passed by the Gujarat High Court. Justice Nagarathna did not mince words in expressing her dismay at this attempt to counterblast the order of the Supreme Court and said:

“We do not appreciate the high court’s counterblast to the Supreme Court’s orders. What is happening in the High Court of Gujarat? Do judges reply like this to a superior court’s order? We do not appreciate this. These kinds of attempts are being made by high court judges to circumvent something we have said, like this. There is no need for any judge of the high court to justify its order.”

Justice Ujjal Bhuyan also expressed his shock at the passing of the said order, enquiring upon the requirement for the judge to pass the said order. Judges do not have to justify their orders by passing a subsequent order, Justice Bhuyan said. He also observed that the high court could not have imposed an unjust condition on a rape survivor, forcing her to bear the child. He said, “The view taken, I’m sorry to say, is against constitutional philosophy. How can you perpetuate unjust conditions and force the rape survivor to undergo pregnancy?” as per the LiveLaw report.

Advocate Parikh had also informed told the bench that the same single judge, in another case related to the pregnancy of a minor rape survivor, had invoked Manusmriti.

It is essential to note that SG Tushar Mehta had requested the bench to not make any adverse comments against the single judge in its order, saying that the suo moto order was passed in a bona fide manner. “Please ignore what happened. Kindly do not [make adverse comments] because it really discourages high court judges. These have a demoralising effect. He is otherwise a very good judge,” the SG had stated as per the report of LiveLaw.

The suo-moto order of the court can be read here:

Observations made by the Supreme Court in the order:

In the order delivered by the Supreme Court, significant observations regarding the autonomy of the women to take decisions related to her body, the stress and trauma caused to women by pregnancies outside marriage, and trauma of rape and the pregnancies resulting from rape.

Pregnancy outside marriage, particularly after sexual assault is injurious to mental health of woman: Supreme Court

In its order, the Supreme Court highlighted the patriarchal mind-set prevalent in the India societies that taboo pregnancies outside marriages. The bench noted that such unwanted pregnancies, especial when are a result of sexual assault, can lead to more stress and trauma. In the order, the bench observed that while pregnancy in a marriage is an occasion for joy, pregnancy outside marriage, particularly after sexual assault, is injurious to the mental health of a woman. The court stated in the order “…To give birth to an unwanted child or not is the question posed by the appellant in this appeal, being unsuccessful before the Gujarat High Court. In Indian society, within the institution of marriage, pregnancy is a reason for joy and celebration, and for great expectation, not only for the couple but for their families and friends. By contrast, pregnancy outside marriage in most cases is injurious, particularly after a sexual assault or abuse, and is a cause for stress and trauma, affecting both the physical and mental health of the pregnant woman – the victim. Sexual assault or sexual abuse of a woman is itself distressing, and sexual abuse resulting in pregnancy, compounds the injury. This is because such a pregnancy is not a voluntary or a mindful pregnancy.” (Para 13)

Reproductive decisions of woman not to be interfered by State: Supreme Court

The bench also emphasized the importance of every woman’s right to make autonomous reproductive decisions free from State interference in addition to highlighting how the trauma of rape might be perpetuated if a survivor is forced to give birth to a child conceived as a result of the sexual assault. The court noted that the deprivation of access to reproductive healthcare, apart from being injurious to the emotional and physical well-being of the woman, also injured the dignity of the woman. The order stated:

“In the context of abortion, the right of dignity entails recognising the competence and authority of every woman to take reproductive decisions, including the decision to terminate the pregnancy. Although human dignity inheres in every individual, it is susceptible to violation by external conditions and treatment imposed by the State. The right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity.” (Para 18)

In view of this and after taking note of the medical report which declared her fit to undergo the termination procedure, the court allowed her plea –

“We permit the appellant to terminate her pregnancy. We direct her to be present in the hospital today or 9 AM tomorrow, as she deems fit, so that the procedure for termination of pregnancy can be carried out.” (Para 20)

The order also provides the steps to be followed in case the foetus survives the procedure. The order states that subsequent to the medical procedure, in the event that the foetus is found to be alive, the hospital has been directed by the court to provide all necessary facilities including incubation to ensure the survival of the foetus. The State shall then take steps to ensure that the child is adopted in accordance with law, the bench further directed.

“Subsequently to the medical procedure to be carried out either today or tomorrow, in the event, the foetus is found to be alive, the hospital shall give all necessary medical assistance including incubation either in that hospital or any other hospital where incubation facility is available in order to ensure that the foetus survives. Further, in case the foetus survives, then State shall take steps for ensuring that the child could be adopted in accordance with law.” (Para 21)

With respect to the manner in which the August 19 suo-moto order was passed by the single judge of the Gujarat High Court, the Supreme Court bench refrained from making any adverse comment in its order and stated, “We restrain ourselves from saying anything on the order passed by the single judge of the high court on August 19 pursuant to the order passed by us on the said date though we have to say that it was highly improper.“ (Para 11)

Advocate Parikh had also made a request for allowing the preservation of tissues of the foetus for use as DNA evidence in the rape case trial. The bench in its order stated “We direct the concerned medical experts to have regard to the feasibility of such a procedure being done, in the event of the foetus being alive or in the event the foetus not being alive or is still born and accordingly take steps as sought for by the appellant herein. It is needless to observe that in the event tissues are drawn for the purpose of DNA test the same shall be handed over to the investigating agency by the concerned hospital” (Para 22-23)

Cases relied upon by the Supreme Court in its order:

While delivering the judgment in the said case, the bench of Justices Nagarathna and Bhuyan relied upon a few landmark judgments delivered by the Supreme Court which dealt with the issue of reproductive autonomy and access to reproductive healthcare. Passages excerpted from them were used were also present in the order. The said judgements are as follows:

• In the matter of Suchitra Srivastava (2009), the right of a woman to have reproductive choices was held to be an insegregable part of her personal liberty under Article 21 of the Constitution, recognising her ‘sacrosanct’ right to her bodily integrity.
• In the matter ofMurugan Nayakkar (2017), the Supreme Court allowed the plea of a minor rape survivor and allowed her pregnancy to be terminated in terms of the opinion of a medical board.
• In the matter of Sarmishtha Chakraborty(2018), the Supreme Court had allowed a woman to abort her over 20-week-old foetus with severe abnormalities. Notably, this decision had been delivered prior to the 2021 amendment to the Medical Termination of Pregnancy Act, 1971 which increased the upper limit of the legal window for an abortion from 20 to 24 weeks.
• In the year 2022, in the matter of X vs The Principal Secretary, a three-judge bench led by Justice Chandrachud (as he was then) had allowed an unmarried woman in a live-in relationship to abort her pregnancy of 24 weeks. The bench had noted that the 2021 amendment used the term ‘partner’ instead of ‘husband’ in the explanation to Section 3 of the act, implying that the marital status of the pregnant woman should not matter. The bench had also observed that women did not need to seek her family’s consent, nor could doctors impose extra-legal conditions, the court said. The only cases in which a woman would require her guardian’s consent is if she is a minor or suffers from mental illness.

The complete order of the court can be read here:

Supreme Court’s recent judgment on abortion an important reminder on a woman’s bodily autonomy, individuality and dignity

Time and again, Supreme Court has served reminders to the state and the society in relation to the right of a woman to exercise her right to bodily autonomy, liberty and dignity. The current judgment of the Supreme Court upholds a woman’s sole right to her body and decision making, especially in the case of pregnancy as a result of sexual assault.

Through this judgment, the bench has asserted that the matters related to a woman’s body do not account for any interference by the State. The right to personal autonomy underlies the Fundamental Rights and is rooted in the dignity of each individual. It includes the right to make decisions about issues innate to our personality privately without the judgment of the state and society.

Thus, the said judgment of the Supreme Court, along with the cases relied upon, are critical as it not only upholds the values promoted by our Indian Constitution but also finds affirmation un the international human right law, which takes the centre-stage of women and girls’ autonomy to make their own decisions vis-à-vis their bodies.

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The post SC: “Right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity” appeared first on SabrangIndia.

At 10.30 a.m., the Supreme Court bench comprising Justices BV Nagarathna and Ujjal Bhuyan held the special sitting and expressed dismay at the nonchalant approach of the Gujarat High Court in dealing with said case. The petitioner’s lawyer Advocate Shashank Singh submitted to the court that the medical board had opined in favour of termination of pregnancy; however, the High Court did not entertain the plea for abortion.

The counsel further informed the bench that the writ petition was filed in the High Court on August 7, and the Court took the matter on August 8 on which date a direction to constitute a medical board was passed to ascertain the status of pregnancy. On August 10, the report of the board was submitted. On August 11, the Court took the report on record and posted the matter to August 23.

The bench expressed surprise at the High Court posting the matter after 12 days for hearing. “How can the court stand it over to August 23? How many valuable days would have been lost by then!“, a dismayed Justice Nagarathna said, as reported by LiveLaw. It is essential to note that the said case was being heard by Justice Samir Dave, whose transfer from the Gujarat High Court has been recommended by the Supreme Court.

The counsel further submitted that the case was however listed before the High Court on August 17 on which date the petition was dismissed. However, the order of dismissal has not been uploaded yet. In this backdrop, the Court directed the Secretary General of the Supreme Court to ascertain from the Gujarat High Court Registry if the order has been uploaded.

“We will wait for order. How can we proceed without the order?“, Justice Nagarathna expressed anguish. “In such cases, there should be a sense of urgency. Not a lackadaisical attitude treating it as a normal matter! We are sorry to make these remarks“, Justice Nagarathna added, as reported by LiveLaw.

As per a report of the LiveLaw, the bench recorded its dissatisfaction with the Gujarat High Court by observing the following in its order: “Strangely, the High Court posted the case 12 days thereafter on August 23, losing sight of the fact that every day’s delay was crucial and of great significance having regard to the facts and circumstances of the case. In the instant case, when the petitioner had approached the Court, she was already 26 weeks pregnant. Therefore, we find that valuable time has been lost between August 11, when the report was placed before the High Court and the order stating that the matter will stand over to August 23”.

The Supreme Court bench issued directions to conduct a fresh medical examination of the petitioner and directed her to appear before the hospital for being examined once again today only. The said medical report is then to be submitted before the Supreme Court by Sunday, and the bench will hear the matter again on Monday as the first item.

It is essential to note that in a separate case, on June 7, while hearing a termination of pregnancy petition moved by the father of a minor rape survivor, Justice Samir Dave had quoted from the Manusmriti. While indicating that he might not allow the petition if both the girl and foetus were healthy, Justice Dave had said ‘It was once normal for girls to marry at the age of 14-15, and deliver a child before they turned 17’. He had also recommended that the petitioner read it, and ask her mother/grandparents about their time.

Brief background of the case:

The Petitioner in the matter is an Adivasi woman from a remote village in Gujarat and works as a domestic help. As per the allegations raised by her, she was subjected to rape under the false pretext of marriage.

On August 7, the petitioner moved the Gujarat High Court and sought for medical termination of pregnancy. Accordingly, the High Court issued an order dated 08.08.2023 directing the medical board to conduct an examination of the petitioner and produce the report at the court by August 11.

On August 11, the medical board placed its report before Justice Samir J. Dave of Gujarat High Court, as per which the petitioner was deemed clinically fit for the termination of pregnancy procedure. However, during the hearing on August 17, the High Court gave the petitioner the option to have the child and keep the child’s custody or surrender it to the State upon delivery. The Petitioner was not inclined to accept either of the options and wished to pursue her prayer for termination of the pregnancy. Notably, the same was rejected by the Single Judge at the stage of Admission and it was communicated that the Order would be out soon. However, the order has not been released yet. In view of the urgency, the matter was brought to the Supreme Court.

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The post In a special hearing, SC bench hears petition on termination of pregnancy, expresses dismay over lackadaisical approach of Gujarat HC appeared first on SabrangIndia.

The Gujarat High Court had earlier stipulated an examination of the video evidence by the Chief Judicial Magistrate. In the video, officers in civilian attire can be seen thrashing the victims in full public view, while an audience watches and even goes so far as to encourage the assault and chant patriotic slogans.

However, the recently submitted report by CJM Chitra Ratnoo has revealed that due to the poor quality of the videos, the identification process has been far from quick. Only four officers could be positively identified from the footage.

According to Bar and Bench, the four police officers identified are: AV Parmar, DB Kumavat,

Kanaksingh Laxmen Singh, and Raju Rameshbhai Dabhi.

The incident had arrived to a division bench of Justices AS Supehia and MR Mengdey, who tasked the CJM of Nadia district with examining theelectronic evidence related to the incident, including pen drives and other relevant materials. Bar and Bench further noted that this particular incident involved members of the Malek family, who claimed that they were subjected to violence by officers from the Matar Police Station for allegedly throwing stones at a crowd during a Navratri event in Undhela village. Seeking recourse, the family approached the High Court, citing contempt of court against the officers for deviating from the Supreme Court’s guidelines as established in DK Basu v. State of West Bengal, which lay out proper procedures for arresting individuals.

Senior Advocate IH Syed represented the Malek family as they took their case to the High Court. Following this, the Court sought a response from the State on the allegations.

The CJM’s report narrates the difficulty in identifying the officers due to the the stated poor quality of the video evidence. The report underlines that the videos were captured by members of the public and often from a distance, leading to blurred and pixelated images when zoomed in which is why identification of culprits based on those videos is difficult. Furthermore, it is stated that the victims themselves struggled to positively identify the officers involved.

Similarly, out of the five men who were subjected to the public assault, the CJM’s report concludes that only three could be definitively identified.

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The Bench of Justice AS Supehia and Justice MR Mengdey made this observation while dealing with a plea moved by 5 members of a Muslim family seeking contempt action against more than a dozen police officers for allegedly tying and beating the Muslim men up in full public view, with the villagers cheering on and recording the incident, and circulating it in social media.

The Police action occurred allegedly in the aftermath of the communal clash in Undhela village situated in Matar Taluka of Kheda district on October 3, 2022. Allegedly, some intruders pelted stones at the crowd during Navratri celebrations; thereafter, at least 40 persons were arrested by the police, some of whom were publicly flogged.

During the said hearing on Monday, when the Public Prosecutor Mitesh Amin, representing the state, attempted to highlight how the accused were engaged in ‘stone-throwing’, the bench specifically questioned him as to whether the state was conceding that the claimed flogging episode actually occurred or not.

“Whether the incident of tying them to the cot and thereafter, beating them with lathis, has occurred or not?…We are not going to decide this case on the basis of passion. Either you deny it (flogging incident) that it did not occur at all, or you can say that yes, this was our duty and these all are the reasons, and if you would not have done so, something worse could have happened,” the Bench asked, as provided by the LiveLaw.

The PP Mitesh Amin responded to the said question by saying that although he had previously stated that his goal was not to justify any particular act, if at all one had even occurred, he still wished to present the court with a number of records.

He added, however, that Muslim community members had ‘planned to stop’ Hindu community members from performing Garba during the Navratri holiday in the aforementioned area prior to the claimed incident. He also alleged that Muslim residents had already ‘interfered’ with the Holi festivities.

Additionally, he said that Muslim men had tried to ‘disrupt’ the festivities and that the police were called in to intervene and control the situation.

“I am trying to make an endeavour to explain that such was the situation where the police officers were bound to see that situation do not flare up disturbing law and order situation. At that time, they would not sit with DK Basu (case guidelines). They just wanted to control the situation,” PP Amin Submitted, as provided by the LiveLaw.

Upon the aforementioned submission made by the PP, Justice Supehia then stated, “Definitely, they must control the situation. But we are concerned with what happened subsequently. The issue before us relates to the guidelines. We are not doubting the manner and method you tried to handle the situation. The question concerns after they were taken into custody and the subsequent incident took place…Point out the provision of law whereunder a person who is detained or an accused, can be tied to a pole and beaten in full public view. Point out that it can be done,” as reported by the Livelaw.

The bench further asked the state to deny the incident, however, since the PP was reluctant to do so, the bench posted the matter for further hearing on July 6.

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The post Gujarat: HC questions state on public flogging of Muslim men in Kheda appeared first on SabrangIndia.

It was once normal for girls to marry at the age of 14-15, and deliver a child before they turned 17, said a judge of the Gujarat High Court while deciding on a plea for permission to terminate her pregnancy submitted by a minor rape survivor. On June 7, while indicating that he might not allow the petition if both the girl and foetus were healthy, Justice Samir Dave of the high court also referred to the Manusmriti during the hearing and recommended that the petitioner read it, and ask her mother/grandparents about their time. It is pertinent to note that the petitioner here is a rape survivor, who is 16 years and 11 months old and carrying a seven-month-old foetus.

The said plea had been moved by the petitioner’s father to seek permission from the High Court for aborting the pregnancy of the petitioner as it had crossed the 24-week threshold up to which abortion can be performed without a court’s leave.

On Wednesday morning, the lawyer representing the petitioner had sought an early hearing, saying the family was concerned because of the girl’s tender age. Responding to this, Justice Dave said there was anxiety because “we are living in the 21st century”.

“Because we are living in the 21st century, ask your mother or great-grandmother, 14-15 was the maximum age (for getting married). The child used to take birth before the age of 17. Girls get matured before boys. 4-5 months here and there doesn’t make a difference. You will not read it, but do read Manusmruti once for this” he added.

In response to this, counsel for the Minor’s father/Petitioner, said that under the Muslim Law, the age is 13 years, as reported by LiveLaw. The relevance behind this whole discussion, and recommending Manusmriti to a rape survivor, was not clear.

Later, as the expected date of delivery is August 16, the judge then consulted expert doctors in his chamber and informed the lawyer that “The court can consider (allowing abortion) if any serious ailments are found in the foetus or the girl. But if both are normal, it will be very difficult for the court to pass such an order,” as reported by the New India Express.

In the end, considering the facts and circumstances of the case, the court directed the Medical Superintendent of Rajkot Civil Hospital to get the girl examined by a panel of doctors to find out if the medical termination of pregnancy was advisable at this point. The doctors have also been direction to carry out an ossification test on the girl and a psychiatrist should ascertain her mental condition, Justice Dave said, asking the hospital to submit reports by June 15, the next date of hearing.

During the hearing, the judge also advised the girl’s lawyer to start looking for options in case the medical opinion went against the termination of the pregnancy. “I will not give permission if both are found healthy. The weight of the foetus is also good… What will you do if the girl gives birth and the child lives? Who will take care of that child? I will also inquire if there are government schemes for such children. You should also check if someone can adopt that child,” said the judge, as reported by the New Indian Express.

The order can be read here.

Manusmriti in court- anti-thesis to women empowerment 

 “As per Hindu Dharma, all women are created by God as prostitutes. They are prostitutes as per Hindu Dharma…Manu Dharma. The status of all women is less than that of a man.”

According to some scholars, Manusmriti was established by the 5th Century C.E, but regardless of the time of its first appearance, Manusmriti has remained colossally influential in determining the oppressive and patriarchal structure and the function of Indian society. Manusmriti, a book often revered by the right-winger Sanghis, is a book that has been single-handedly responsible for the derogatory position accorded to women and the people from the non-dominant caste since the post-Vedic period. It is through this book that a Brahminical patriarchal structure has been maintained in our country, establishing Brahmins as the highest authority deserving all the societal privileges.

It is this Manusmriti that says, “It is the very nature of women to corrupt men here on earth; for that reason, and circumspect men do not get careless and wanton among wanton women.” This book defines a woman’s social status, both in her current birth and beyond, as being dependent on the exact and proficient performance of home activities and duties towards her husband. While Manu was not the first to think of women as sexual tempters, corrupters, or portals to hell, it was through his book that such disgusting and derogatory anti-women were promoted and established. The castigation and condemnation of women has been underlined by depicting the woman as a dependent and loathsome creature in need of constant protection and supervision – initially by the father or brother, and later by the husband and son. Manusmriti has overtly advocated child marriage and dowry in addition to the disparaging image of women and the demonization of persons, particularly women, from non-dominant castes.

Aside from the dependent status bestowed to women, this is a text that advocates the most severe punishments for any violation of the caste order, and it is a text that is reflected in practice when women and men are killed for marrying across caste lines, entering institutes of higher education, or contesting elections.

Are we going forward or backward?

Dr. Ambedkar had burnt the Manusmriti in December 1927 at the Mahad Satyagraha in the presence of thousands of women and men, when he was only 36 years old. And yet, a judge of the High Court had, in a court of law, promoted the reading of Manusmriti to educate a girl child on how she should be aware of the duties of child bearing that her mother and grandmother had played at their own times. The Manusmriti says that women should concentrate on the tasks they are good at, i.e., bearing and rearing the progeny, and Justice Samir Dave had basically recommended a rape survivor, approaching the court for abortion, to learn from it.

Only a few days ago, the Supreme Court had intervened in an order of the Allahabad High Court seeking confirmation of the ‘Manglik’ status of a woman who had accused her partner of making a false promise of marriage. On June 3, 2023, the Supreme Court of India put a stay on Allahabad High Court’s order to confirm the ‘Manglik’ status of a rape survivor. On May 23, 2023, a single-judge bench of the Allahabad HC was hearing a bail petition filed by the accused. The accused said he backed out of the promise after learning that the girl was not ‘Manglik’. The High Court had then asked the astrology department of Lucknow University to look into the horoscope of the woman to verify the claim of the man she accused of having a relationship on the false promise of marriage.

In view of these two recent judgment, it seems like the judiciary is not far or isolated from the structure or patriarchy existing in our society. There is a need for the judiciary to recognising society’s deep-rooted patriarchy, and their contribution in it, and initiate a course correction in the way the judiciary itself views gender rights. It is essential that this course correction is not only limited to the Supreme Court, but also reaches the high courts and the district courts, that the common person approaches to seek justice. Many a times, the judges of the courts of India, have reiterated the misogyny, besides carelessly making statements that are anti-women to its core. Women are battling society’s ingrained prejudices, and even accessing courts for seeking justice in cases of crimes committed against their bodies is a fight big enough, without having the judges supporting gender stereotyping and promoting books like Manusmriti.

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