Earlier this year, four judges blatantly questioned the Chief Justice in an unparalleled defiance. And more recently government raised the question on judge representation at the Supreme Court. Yet amidst all this, the Apex court for the Indian society has delivered judgments with profound implications.
The Supreme Court of India is the messiah of justice – unprejudiced, unbiased and incorruptible (or at least one hopes so). The Apex court in the last few decades hasn’t just laid down the law; they’ve also acted as an inspector of defence against apathetic lower courts, nefarious cops and draconian rulings.
GAY SEX IS LEGAL NOW
On September 6, the Supreme Court gave a historic verdict, decriminalizes Section 377 making gay sex legal. Section 377 of the Indian Penal Code (IPC) was a law, which criminalized any form of sexual intercourse that is not penovaginal, irrespective whether it is consensual or not.
Demands-
1- Scrap Section 377
2- Legalize Gay Sex
3- Allow Equal Rights
Verdict
“Section 377 is irrational, arbitrary and incomprehensible as it fetters the right to equality for LGBT community…LGBT community possesses same equality as other citizens. The right to privacy as part of right to life applies fully to the LGBT community. Social morality cannot violate the rights of even one single individual.” –CJI Dipak Misra
History-
British India introduced Section 377, imitated on the Buggery Act of 1533. In 1838 Thomas Macaulay drafted this section of Buggery act and was brought into effect in 1860. In a broader sense, it defined ‘buggery’ as an unnatural sexual act against the will of God and man, thus, criminalizing anal penetration, bestiality, and homosexuality.
Bench-
A Supreme Court bench of five judges involving CJI Dipak Misra, Justice RF Nariman, Justice AM Khanwilkar, Justice DY Chandrachud, Justice Indu Malhotra, unanimously decriminalized the almost 157-year-old colonial law under Section 377 of the IPC which criminalizes consensual unnatural sex, saying it violated the rights to equality.
HUSBANDS ARE NOT MASTERS
On September 27, unanimously the Supreme Court of India strikes down Section 497 of the Indian Penal Code that for men makes adultery a punishable offence. The apex court also declared Section 198(1) and 198(2) of the CrPC unconstitutional that allows a husband to bring charges against the man with whom his wife committed adultery.
According to Section 497 of IPC, “whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery”.
History-
Section 497 is a 150-year-old law and the adultery law first came under challenge in 1951 in the Yusuf Aziz versus State of Bombay case.
Bench-
The five-judge Constitution Bench, in a unanimous judgment by CJI Dipak Misra, Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud, and Indu Malhotra. SC strikes down Section 497.
Verdict-
The Supreme Court said that the 158-year-old law was unconstitutional and fell afoul of Article 21 (Right to life and personal liberty) and Article 14 (Right to equality).
“Adultery can be ground for any civil wrong. There can’t be any social license that destroys the matrimonial home, but adultery should not be a criminal offence.” –Justice AM Khanwilkar
“Any provision of law affecting individual dignity and equality of women invites the wrath of the Constitution. It’s time to say that a husband is not the master of the wife. Legal sovereignty of one sex over other sex is wrong.” -Chief Justice of India Dipak Misra
MENSTRUATION IS NOT LUXURY
PERIODS AREN’T LUXURY
On September 28, the apex court allowed the entry of women of all ages to worship Lord Ayyappa into Kerala’s renowned Sabarimala temple. For centuries women who were included in the 10-50 age were prohibited from entering the temple as its presiding deity, Lord Ayyappa, is considered to be a celibate. Many petitions had challenged the prohibition on the women’s entry.
History-
The Kerala High court in 1991 prohibited the entry of women’s belonging to menstrual age of 10 and below the age of 50 from offering worship at Sabarimala Shrine
Verdict-
“Patriarchal rules have to change, and that patriarchy in religion cannot be allowed to trump the right to pray and practice religion.” –Chief Justice Dipak Misra
“Issues of deep religious sentiments should not be ordinarily be interfered by the court. The Sabarimala shrine and the deity is protected by Article 25 of the Constitution of India and the religious practices cannot be solely tested on the basis of Article 14.” –Justice Indu Malhotra
Bench-
The five-judge Constitution bench headed by Chief Justice Dipak Misra in 4-1 verdict said the temple rule violated their right to equality and right to worship.
ADHAAR AIN’T MANDATORY
On September 26, the apex court of India upheld the validity of Aadhaar but with riders. The section 57 was strike down which allows private entities to seek Aadhaar data, but the use of unique number has been allowed for government schemes and subsidies.
History-
The first card was issued in September 2010 and was made mandatory since the National Democratic Alliance (NDA) came to power in May 2014.
Verdict-
Three of five judges were of the view that Aadhaar is valid.
“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. Aadhaar negates pluralistic identities and redues a person to just 12 digits” – Justice Chandrachud
“Only minimum biometrics of iris and fingerprints are sought. The information is collected in silos. There is no merging of silos. Authentication is not on the Internet, nature of transaction is not shared and registered devices are used. Education moved us from thumb impressions to signatures. Technology moved us back from signatures to thumb impressions.” -Justice A.K. Sikri
Bench-
The five-judge Bench has upheld the validity of Aadhaar that also comprised Justices A.K. Sikri, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan, and among them Justice Chandrachud differs and declared Aadhaar was not valid.
RESERVATION IN PROMOTION
EXCLUSION OF CREAMY LAYER
On September 26, in a historic verdict Supreme Court has upheld reservation in promotion for the SC/ST communities and left the decision on the state government.
History-
The court essentially upheld its 2006 order that said that in public sector jobs it was not mandatory for the government to give reservations in promotions.
Supreme Court earlier this week ruled that the “creamy layer exclusion” principle that was till date applicable only to OBCs, now can be extended to Scheduled Castes (SCs) and Scheduled Tribes (STs) to deny reservation to the “elite” among the two underprivileged communities.
Verdict-
“This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were. This being the case, it is clear that when a court applies the creamy layer principle to Scheduled Castes and Scheduled Tribes, it does not in any manner tinker with the Presidential List under Articles 341 or 342 of the Constitution of India.” –CJI led bench
Bench-
A five-judge Constitution bench of the Supreme Court Chief Justice Dipak Misra and Justices Kurian Joseph, R F Nariman, Sanjay Kishan Kaul and Indu Malhotra gave the ruling.
RAM MANDIR
On September 27, the Supreme Court effectively declined to revisit the Ram Mandir case. It further declined to refer to a five-judge Constitution bench the issue of reconsideration of the observations in its 1994 that arose during the hearing of Ayodhya land dispute. The court further also added that the main Ayodhya case will be taken up in the week starting October 29, for hearing.
History-
In its 1994 judgment the apex court said that a mosque was not integral to Islam that arose during the hearing of Ayodhya land dispute. The Babri Masjid, built by Mughal emperor Babur in Ayodhya in 1528, was demolished on 6th December 1992, by Hindu Karsevaks, who claimed that the mosque was constructed after demolishing a Ram temple that originally stood there.
Verdict-
“Observations in Ismail Faruqui case on mosques is not essential in the context of the acquisition of mosque and made with respect to the facts of that case.” –Justice Bhushan
Bench-
A three-judge bench comprising Chief Justice of India Dipak Misra and Justices Ashok Bhushan and S Abdul Nazeer had taken up the long-pending Ayodhya land title appeals against the 2010 Allahabad High Court judgment, that had ordered a three-way partition of the disputed land.