Case brief

1. Shayar Bano v. union of India and Ors-(triple talaq unconstitutional)

 In a landmark decision, Supreme Court of India declared the practice of
Triple Talaq as unconstitutional by a 3:2 majority.
 While Justices Nariman and Lalit held that instant Triple Talaq is
unconstitutional and violative of Article 14 (Right to Equality)
 Justice Joseph struck down the practice on the ground that it goes against
sharia and basic tenets of the Quran.

2. Independent thoughts v union of India and ors (sex with minor wife is
rape)
 A two Judge Bench of Supreme Court held that sexual intercourse with
minor (below 18 years) wife is rape.
 Justice Deepak Gupta in his Judgment Clarified that Section 198(6) of the
CrPC will apply to cases of rape of “wives” below 18 years.
 And cognizance can be taken only under in accordance with the provision
of section 198(6) of the code.
 to this end court read down exception 2 to the section 375 of IPC which
defines rape
 . Which allowed such a sexual act .the age of consent has been made 18
from 15 in this case
3. Navtejsinghjohar v. union of india and ors
 A five-judge SC bench gave a historic, unanimous ruling on Section 377 of
the Indian Penal Code, decriminalising homosexuality.
 The bench, terming Section 377 as 'irrational, indefensible and manifestly
arbitrary', diluted it to exclude all kinds of adult consensual sexual behavior.
 The ruling stated:
The natural identity of an individual should be treated to be absolutely
essential to his being. What nature gives is natural. That is called
nature within. Thus, that part of the personality of a person must be
respected and not despised or looked down upon.”

4. Minerva Mills Ltd. and Ors. v. Union Of India and Ors.

 It is a landmark decision of the Supreme Court of India that applied and
evolved the basic structure doctrine of the Constitution of India.
 In the Minerva Mills case, the Supreme Court provided key clarifications on
the interpretation of the basic structure doctrine.
 The court unanimously ruled that the power of the parliament to amend the
constitution is limited by the constitution.
 Hence the parliament cannot exercise this limited power to grant itself an
unlimited power. In addition, a majority of the court also held that the
parliament's power to amend is not a power to destroy.
 Hence the parliament cannot emasculate the fundamental rights of
individuals, including the right to liberty and equality.
 The ruling struck down section 4 and 55 of the Constitution (Forty-second
Amendment) Act, 1976 enacted during the Emergency imposed by Prime
Minister Indira Gandhi.
5. S. R. Bommai v. Union of India ([1994]
 was a landmark judgment of the Supreme Court of India, where the
Court discussed at length provisions of Article 356 of the Constitution of
India and related issues.
 This case had huge impact on Centre-State Relations. The judgement
attempted to curb blatant misuse of Article 356 of the Constitution of
India, which allowed President's rule to be imposed over state
governments.
 The verdict concluded that the power of the President to dismiss a State
government is not absolute.
 The verdict said the President should exercise the power only after his
proclamation (imposing his/her rule) is approved by both Houses of
Parliament.
 Till then, the Court said, the President can only suspend the Legislative
Assembly by suspending the provisions of Constitution relating to the
Legislative Assembly.
 "The dissolution of Legislative Assembly is not a matter of course. It
should be resorted to only where it is found necessary for achieving the
purposes of the Proclamation," the Court said.
6. Mohd. Ahmed Khan v. Shah Bano Begum
 In April 1978, a 62-year-old Muslim woman, Shah Bano, filed a petition
in court demanding maintenance from her divorced husband Mohammed
Ahmad Khan, a renowned lawyer in Indore, Madhya Pradesh. Khan had
granted her irrevocable talaq later in November. The two were married
 in 1932 and had five children — three sons and two daughters. Shah
Bano’s husband had asked her to move to a separate residence three
years before, after a prolonged period of her living with Khan and his
second wife.

 Shah Bano went to court and filed a claim for maintenance for herself
and her five children under Section 123 of the Code of Criminal
Procedure, 1973. The section puts a legal obligation on a man to provide
for his wife during the marriage and after divorce too if she isn’t able to
fend for herself. However, Khan contested the claim on the grounds that
the Muslim Personal Law in India required the husband to only provide
maintenance for the iddat period after divorce.

 Justice Y.V. Chandrachud said in his decision: “Section 125 was enacted
in order to provide a quick and summary remedy to a class of persons
who are unable to maintain themselves. What difference would it then
make as to what is the religion professed by the neglected wife, child or
parent? Neglect by a person of sufficient means to maintain these and the
inability of these persons to maintain themselves are the objective
criteria which determine the applicability of section 125. Such
provisions, which are essentially of a prophylactic nature, cut across the
barriers of religion. The liability imposed by section 125 to maintain
close relatives who are indigent is founded upon the individual’s
obligation to the society to prevent vagrancy and destitution. That is the
moral edict of the law and morality cannot be clubbed with religion.”

7. Shreya Singhal v. Union of Indiais

 Its a judgement by a two-judge bench of the Supreme Court of India in

2015, on the issue of online speech and intermediary liability in India
 The Supreme Court struck down Section 66A of the Information
Technology Act, 2000, relating to restrictions on online speech,
unconstitutional on grounds of violating the freedom of speech
guaranteed under Article 19(1)(a) of the Constitution of India.
 The Court further held that the Section was not saved by virtue of being
'reasonable restrictions' on the freedom of speech under Article 19(2).
The case was a watershed moment for online free speech in India.
8. M.C. Mehta v. Union of India
 originated in the aftermath of oleum gas leak from Shriram Food and
Fertilisers Ltd. complex at Delhi. This gas leak occurred soon after the
infamous Bhopal gas leak and created a lot of panic in Delhi.
 One person died in the incident and few were hospitalized. The case lays
down the principle of absolute liability and the concept of deep pockets.
 The Supreme Court made the following observation:
Since we are not deciding the question as to whether Shriram is an
authority within the meaning of Article 12 so as to be subjected to the
discipline of the fundamental right under Article 21, we do not think it
would be justified in setting up a special machinery for investigation of
the claims for compensation made by those who allege that they have
been the victims of oleum gas escape.
 But we would direct that Delhi Legal Aid and Advice Board to take up
the cases of all those who claim to have suffered on account of oleum
gas and to file actions on their behalf in the appropriate court for
claiming compensation against Shriram. Such actions claiming
compensation may be filed by the Delhi Legal Aid and Advice Board
within two months from today and the Delhi Administration is directed
to provide the necessary funds to the Delhi Legal Aid and Advice Board
for the purpose of filing and prosecuting such actions.

9. Vishakha and others v State of Rajasthan

 was a 1997 Indian Supreme Court case where Vishakha and other
women groups filed Public Interest Litigation (PIL) against State of
Rajasthan and Union of India to enforce the fundamental rights of
working women under Articles 14, 19 and 21 of the Constitution of
India. The petition was filed after Bhanwari Devi, a social worker in
Rajasthan was brutally gang raped for stopping a child marriage.
 The court decided that the consideration of "International Conventions
and norms are significant for the purpose of interpretation of the
guarantee of gender equality, right to work with human dignity in
Articles 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards
against sexual harassment implicit therein.
 " The petition, resulted in what are popularly known as the Vishaka
Guidelines. The judgment of August 1997 given by a bench of J. S.
 Verma (then C.J.I)., SujataManohar and B. N. Kirpal, provided the basic
definitions of sexual harassment at the workplace and provided
guidelines to deal with it.
 It is seen as a significant legal victory for women's groups in India.

10.Ashoka Kumar Thakur v. Union of India

its is an Indian public interest litigation case challenging the conclusion
of the Mandal Commission that about 52% of the total population of
India belonged to Other Backward Classes classification. The National
Sample Survey Organisation had estimated the OBC segment to be 42
per cent.
Judgement –
1. The Constitution (Ninety-Third Amendment) Act, 2005 does not
violate the "basic structure" of the Constitution so far as it relates to the
state maintained institutions and aided educational institutions. Question
whether the Constitution (Ninety-Third Amendment) Act, 2005 would
be constitutionally valid or not so far as "private unaided" educational
institutions are concerned, is left open to be decided in an appropriate
case.

2. "Creamy layer" principle is one of the parameters to identify

backward classes. Therefore, principally, the "Creamy layer" principle
cannot be applied to STs and SCs, as SCs and STs are separate classes
by themselves.

3. Preferably there should be a review after ten years to take note of the
change of circumstances.

4. A mere graduation (not technical graduation) or professional deemed

to be educationally forward.

5. Principle of exclusion of Creamy layer applicable to OBC's.

6. The Central Government shall examine as to the desirability of fixing

a cut off marks in respect of the candidates belonging to the Other
Backward Classes (OBCs)to balance reservation with other societal
interests and to maintain standards of excellence. This would ensure
 quality and merit would not suffer. If any seats remain vacant after
adopting such norms they shall be filled up by candidates from general
categories.

7. So far as determination of backward classes is concerned, a

Notification should be issued by the Union of India. This can be done
only after exclusion of the Creamy layer for which necessary data must
be obtained by the Central Government from the State Governments and
Union Territories. Such Notification is open to challenge on the ground
of wrongful exclusion or inclusion. Norms must be fixed keeping in
view the peculiar features in different States and Union Territories.
There has to be proper identification of Other Backward Classes
(OBCs.). For identifying backward classes, the Commission set up
pursuant to the directions of this Court in IndraSawhney 1 has to work
more effectively and not merely decide applications for inclusion or
exclusion of castes.

8. The Parliament should fix a deadline by which time free and

compulsory education will have reached every child. This must be done
within six months, as the right to free and compulsory education is
perhaps the most important of all the fundamental rights (Art.21 A). For
without education, it becomes extremely difficult to exercise other
fundamental rights.

9. If material is shown to the Central Government that the Institution

deserves to be included in the Schedule (institutes which are excluded
from reservations) of The Central Educational Institutions (Reservation
in Admission) Act, 2006 (No. 5 of 2007), the Central Government must
take an appropriate decision on the basis of materials placed and on
examining the concerned issues as to whether Institution deserves to be
included in the Schedule of the said act as provided in Sec 4 of the said
act.
Held that the determination of SEBCs is done not solely based on caste
and hence, the identification of SEBCs is not violative of Article 15(1) of
the Constitution.

11.Lily Thomas v Union Of India) - July 2013

  Effected much-needed cleansing of legislative bodies.

 The Supreme Court of India, in this judgment, ruled that any member
of Parliament (MP), member of the legislative assembly (MLA) or
member of a legislative council (MLC) who was convicted of a crime
and awarded a minimum of two-year imprisonment, would lose
membership of the House with immediate effect.

12.National Legal Services Authority v Union of India) - April 2014

 Third gender acknowledged as citizens with rights.

 In a landmark judgment the Supreme Court in April, 2014 recognised
transgender persons as a third gender and ordered the government to
treat them as minorities and extend reservations in jobs, education and
other amenities.
Adultery law
13.Joseph Shine v. Union of India, 2018

 The major contention raised by Joseph Shine;

 The adultery law was discriminatory by holding only men criminally
liable for the saidoffense
 For treating women as mere objects.
 The inclusion of unmarried women within the purview of the adultery
law.

 The government responded saying that;

"Diluting adultery laws will impact the sanctity of marriages. Making
adultery legal will hurt marriage bonds. The Indian ethos gives paramount
importance to the institution and sanctity of marriage".
 The 5-judge bench after hearing all the arguments agreed that the law was
archaic in nature and violative of the equal rights of women guaranteed
under the constitution and hence unconstitutional.

 Adultery may not lead to an unhappy marriage, but it may surely be

the result of one.
 It may form the ground for divorce but will not constitute a criminal
offense.
 Any provision treating women was unequal is not constitutional (CJI).
 The law propagates the subordinate and objectified status of women in
society. It furthers gender stereotypes and denies them dignity and
autonomy (sexual) and hence is violative of art. 14 and 21. In other
words, it seeks to control the sexual autonomy of women.
 The ancient notions of ‘man being the perpetrator and woman being
the victim’ no longer hold good.
 The sanctity of marriage cannot be more important than the
individuals who a part of it.

 Why Adultery isn’t a crime?

1. When the spouses in a marriage lost their commitment to the

relationship it creates a dent in the marriage. However, it is upon the
parties to decide how they deal with it. While some may exonerate and
live together, some may seek a divorce.
 Hence is a matter of individual’s privacy and therefore the law
cannot unnecessarily intervene.
  Inducing a punishment in this scenario on any of the parties
involved would not in any manner reinstate the lost
commitment and therefore is of no use.

2. As explained before adultery may be the cause or the result of an

unhappy marriage. Therefore, an adulterous marriage may be broken
down or not.
 Hence a blanket application of a penalizing law on both the
categories of couples would be arbitrary and hence
unconstitutional.

14.IndraSawhney v. Union of India

 A landmark case in the Indian Jurisprudence that came after a political

turmoil that took place in the country post the Mandal Commission
report that came out in 1979.
 The report observed that apart from SC/ST’s there exists
another backward class, named as Other Backward Classes
(OBC), amounting to 52% of the population, requiring a
reservation of 27% in the government jobs.
 A number of observations were made by the court;
  It reiterated the view in the Thomas case pertaining to the
reservation under art. 16(1).
 Art. 16(4) isn’t an exception to art. 16(1), rather only a
peculiarity of the same. The latter could have the same impact
in the absence of the former.
 Art. 16(4) is exhaustive of the provisions made in favor of a
backward class of citizens & no further provisions are required
to be made.
 Reservation cannot be made on the basis of economic criteria
alone. It hence quashed the 10% reservation made only on an
economic basis.
 The court identified 3 criteria for ascertaining backwardness –
social, educational and economic backwardness.
 The creamy layer should be excluded from the benefit of
reservation. It is done so that those truly deserving of
reservation may have a better chance of acquiring it. It is
important here to note that those excluded out as being a part of
the creamy layer must be both socially and economically
forward. Howsoever the court left it upon the government to
decide the test to ascertain the creamy layer.
 The total reservation mustn’t exceed 50% in a single year and
representation must be made keeping in mind that it should be
‘adequate’ in nature and not ‘proportional’.
The court has also divided reservation into the vertical and horizontal
reservation. While SC/ST and OBC reservations fall under the former
15.ShayarBano v. union of India and Ors-(triple talaq unconstitutional)
  In a landmark decision, Supreme Court of India declared the practice of
Triple Talaq as unconstitutional by a 3:2 majority.
 While Justices Nariman and Lalit held that instant Triple Talaq is
unconstitutional and violative of Article 14 (Right to Equality)
 Justice Joseph struck down the practice on the ground that it goes against
sharia and basic tenets of the Quran.

16.Independent thoughts v union of India and ors (sex with minor wife is
rape)
 A two Judge Bench of Supreme Court held that sexual intercourse with
minor (below 18 years) wife is rape.
 Justice Deepak Gupta in his Judgment Clarified that Section 198(6) of
the CrPC will apply to cases of rape of “wives” below 18 years.
 And cognizance can be taken only under in accordance with the
provision of section 198(6) of the code.
 to this end court read down exception 2 to the section 375 of IPC which
defines rape
 . Which allowed such a sexual act .the age of consent has been made 18
from 15 in this case.
17.Case brief keshvanandbharti v. state of Kerala
his was a case involving six different writ petition.
 The writ petition questioned whether there is any limitation on the power of the
parliament to amend the constitution, particularly the fundamental rights, as
decided in the Golaknath case.
 The lead petitioner, His Holiness KesavanandaBharatiSripadagalvaru, the
leader of a math in Kerala, challenged the Constitution (29th Amendment) Act,
1972, which placed the Kerala Land Reforms Act, 1963 and its amending Act
into the IX Schedule of the Constitution.
 In a seven-six majority, the bench held that Parliament’s power to amend the
Constitution was not explicitly limited, but was limited to not altering or
modifying the basic features or structure of the Constitution. Eleven separate
judgments were pronounced orally in court.
 a controversial move, during the pronouncement, Chief Justice Sikri circulated
a paper entitled “View by the Majority”, which set out six propositions
 including Proposition No. 2: “Article 368 does not enable Parliament to alter
the basic structure or framework of the Constitution”.
18. Euthanasia

 In a landmark judgment, a Constitution Bench of the Supreme Court of India

reiterated that the ‘right to die with dignity’ is a fundamental right. The
bench upheld the legal validity of passive euthanasia and allowed the
preparation of living wills or advance directives for passive euthanasia –
highly emphasized word: dignity (used 473 times).
 But point which needs to be note down here is that court has allowed only
passive not active euthanasia.
ArunaShanbaug v. Union of India, 2011

 The Supreme Court of India in this landmark judgment set forth certain
guidelines, while legalizing passive euthanasia.
 The court also made a distinction between active and passive euthanasia.
 Active euthanasia means killing a person through the use of a lethal
substance or force.
 Passive euthanasia means withdrawing or discontinuing medical
support necessary for the continuation of life.
 According to the guidelines set forth by the court, all decisions pertaining to
passive euthanasia must be taken by parents, spouse or other close relatives.
In the absence of the above, a close friend might also be considered.
Common Cause v. Union of India, 2018

 The Supreme Court held that right to die with dignity is a fundamental right
under the constitution. Consequently.
  The court explained that the right to live with dignity includes smoothing the
process of death in case of terminally ill patients or patients in a permanent
vegetative state. Guideline regarding the same was also issued by the court.
 The key observations of the court include:
 Right to die with dignity does not include active euthanasia.
 Passive euthanasia of a person in a permanent vegetative state or
terminal illness is legal. But the same must be done by discontinuing
life support.
 A ‘living will’ is legal how are certain guidelines regarding the same
have also been issued.
 In the absence of a living will the next of kin of the patient can
approach a suitable High court asking for passive euthanasia.
Guideline for the same has also been issued.

19.IS RIGHT TO PRIVACY A FUNDAMENTAL RIGHT UNDER

INDIAN CONSTITUTION?

CASES RELATED TO THE PRIVACY FROM 1952 TO 2018.

A. K. Gopalan v. State of Madras, 1952

"Personal liberty" would primarily mean liberty of the physical body.

M.P Sharma vsSatish Chandra, 1954

This post-independence case involved a challenge to the constitutionality of search
and seizure of documents from a person against whom a first information report
(FIR) has been lodged. The main issue that came up for consideration was whether
such procedures were violative of Article 19 (1) (f) (right to property) and Article
20 (3) (right against self- incrimination) of the Constitution. The judges were to
ascertain if there were any constitutional limitations to the government’s right to
search and seizure and if this would in any way breach the right to privacy. A
majority decision by an eight-judge Constitution bench held that the right to
privacy was not a fundamental right under the Indian Constitution. At this point in
time, the question of privacy was relatively new and the bench did not go into it in
much detail. Its interpretation and scope as a right was broadened in subsequent
years. The ruling recognized a search and seizure process as a “temporary
interference for which statutory recognition was unnecessary”. It was considered to
be a reasonable restriction of the

Kharak Singh vs State of Uttar Pradesh, 1962

The issue of state surveillance as against the right to privacy was brought to the
court when Kharak Singh, who was let off in a dacoity case due to lack of evidence
challenged regular surveillance by police authorities on the grounds of
infringement of his constitutionally guaranteed fundamental rights.
Provisions of the Uttar Pradesh police regulations allowed secret picketing of
Singh’s house, domiciliary visits at night, periodic inquiries by officers and
tracking/verifying his movement. Claiming that this was an infringement of his
fundamental rights, Singh filed a writ petition before the Supreme Court.
A six-judge Constitution bench examined the issue of surveillance and validity of
regulations governing the Uttar Pradesh police in the context of the scope of such
powers being in violation of the freedoms guaranteed to citizens under the
Constitution. The fundamental rights referred to in the challenge were Article
19(1)(d) (Right to move freely through the territory of India) and 21 (Right to life
and personal liberty) of the Constitution. The main question for consideration
before the bench was whether surveillance under the impugned Uttar Pradesh
police regulations constituted an infringement of the citizen’s fundamental rights
as guaranteed by the Constitution. Police authorities took the stand that the
regulations did not infringe upon fundamental freedoms and even if they did, they
served as reasonable restrictions in the interest of the general public and to enable
the police to discharge its duty in a more efficient way. In a majority judgment, the
court ruled that “privacy was not a guaranteed constitutional right”. It however,
held that Article 21 (right to life) was the repository of residuary personal rights
and recognized the common law right to privacy. The provision allowing
domiciliary visits was however struck down as unconstitutional. It also noted that
the bundle of fundamental rights under the were self-contained and mutually
exclusive.
Dissenting judge Justice Subbarao, however, said that even though the right to
privacy was not expressly recognized as a fundamental right, it was an essential
ingredient of personal liberty under Article 21. He also held all surveillance
measures to be unconstitutional. Later on in Maneka Gandhi v. UNION OF INDIA
it became the opinion of the majority.

Maneka Gandhi v. UNION OF INDIA, 1978

The Supreme Court in this present case had adopted the widest possible
interpretation of the right to life and personal liberty, guaranteed under Article 21
of the Constitution. Bhagwati, J. observed, “The expression ‘personal liberty’ in
Article 21 is of widest amplitude and it covers a variety of rights which go to
constitute the personal liberty of man and some of them have raised to the status of
distinct fundamental rights and given additional protection under Article 19.” This
case overruled A. K. Gopalan v. State of Madras, 1952.

Justice K. S. Puttaswamy v. Union of India, 2017

It is a landmark judgement of the Supreme Court of India, which holds that the
right to privacy is protected as a fundamental constitutional right under Articles 14,
19 and 21 of the Constitution of India. The judgement of the 9-judge bench
contains six concurring opinions affirming the right to privacy of Indian citizens.
In 2012, Justice K.S. Puttaswamy (Retired) filed a petition in the Supreme Court
challenging the constitutionality of Aadhaar on the grounds that it violates the right
to privacy. The case came before a three judge Bench of the Court which, on 11
August 2015, ordered that the matter should be referred to a larger Bench of the
Court. On 18 July 2017, a five judge Constitution Bench ordered the matter to be
heard by a nine judge Bench. The Government argued that there was no
constitutional right of privacy in view of a unanimous decision of eight judges in
M.P. Sharma v. Satish Chandra, 1954 and a decision by a majority of four judges
in Kharak Singh v. State of Uttar Pradesh, 1964.
It is held that privacy is a constitutionally protected right which emerges,
primarily, from Article 21 of the Constitution. Elements of privacy also arise in
varying contexts from the other facets of freedom and dignity recognised and
guaranteed by the fundamental rights contained in Part III. Privacy includes at its
core the preservation of personal intimacies, the sanctity of family life, marriage,
procreation, the home and sexual orientation. Privacy also connotes a right to be
left alone. Privacy safeguards individual autonomy and recognises the ability of the
individual to control vital aspects of his or her life. Personal choices governing a
way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises
the plurality and diversity of our culture. While the legitimate expectation of
privacy may vary from the intimate zone to the private zone and from the private to
the public arenas, it is important to underscore that privacy is not lost or
surrendered merely because the individual is in a public place. Privacy attaches to
the person since it is an essential facet of the dignity of the human being. An
invasion of life or personal liberty must meet the three-fold requirement of (i)
legality, which postulates the existence of law; (ii) need, defined in terms of a
legitimate state aim; and (iii) proportionality which ensures a rational nexus
between the objects and the means adopted to achieve them; and
Privacy has both positive and negative content. The negative content restrains the
state from committing an intrusion upon the life and personal liberty of a citizen.
Its positive content imposes an obligation on the state to take all necessary
measures to protect the privacy of the individual.

AADHAR Judgement – Chandrachud’s dissent

Justice Chandrachud’s dissent starts from the legislative process that kick-started
the Aadhaar Act, 2016. “The passing Aadhaar Act as money bill is a fraud on the
constitution,” he said, while adding that the decision made by the LokSabha
speaker to classify it as a money bill could be subject to judicial review.
Chandrachud has sharply differed on Section 7 of the Aadhaar Act, which makes
the biometric authentication programme mandatory for obtaining state subsidies.
He stated, “Mandating Aadhaar for benefits and services under Section 7 would
lead to a situation in which citizens will not be able to live without Aadhaar”.(for
further reading on aadhar as money bill refer to the word documents enclosed)