Case BriefsSupreme Court

Supreme Court: In the petition seeking compliance of Animal Welfare Board of India v. A. Nagaraja, (2014) 7 SCC 547,  in the light of the cruelty to Bulls in the Jallikattu event, the bench of Dipak Misra, CJ and RF Nariman, J referred the matter to a 5-judge Constitution bench as it noticed that the writ petitions involve substantial questions relating to the interpretation of the Constitution of India. The present petitions challenge the validity of the Tamil Nadu Amendments to the Prevention of Cruelty to Animals Act, 1960.

The issues placed before the Constitution Bench are as follows:

  1. Is the Tamil Nadu Amendment Act referable, in pith and substance, to Entry 17, List III of the Seventh Schedule to the Constitution of India, or does it further and perpetuate cruelty to animals; and can it, therefore, be said to be a measure of prevention of cruelty to animals? Is it colourable legislation which does not relate to any Entry in the State List or Entry 17 of the Concurrent List?
  2. The Tamil Nadu Amendment Act states that it is to preserve the cultural heritage of the State of Tamil Nadu. Can the impugned Tamil Nadu Amendment Act be stated to be part of the cultural heritage of the people of the State of Tamil Nadu so as to receive the protection of Article 29 of the Constitution of India?
  3. Is the Tamil Nadu Amendment Act, in pith and substance, to ensure the survival and well-being of the native breed of bulls? Is the Act, in pith and substance, relatable to Article 48 of the Constitution of India?
  4. Does the Tamil Nadu Amendment Act go contrary to Articles 51A(g) and 51A(h), and could it be said, therefore, to be unreasonable and violative of Articles 14 and 21 of the Constitution of India?
  5. Is the impugned Tamil Nadu Amendment Act directly contrary to the Nagaraja judgment, and the review judgment dated 16th November, 2016 in the aforesaid case, and whether the defects pointed out in the aforesaid two judgments could be said to have been overcome by the Tamil Nadu Legislature by enacting the impugned Tamil Nadu Amendment Act?

The present bench had earlier, via order dated 16.11.2016 in Chief Secretary to the Govt., Chennai Tamilnadu v. Animal Welfare Board, 2016 SCC OnLine SC 1397, said that there was no connection or association of Jallikattu, a festival involving bull race, with the right of freedom of religion in Article 25. It said:

“the Tamil Nadu State Legislature could not have enacted any law like the Tamil Nadu Regulation of Jallikattu Act, 2009 as when a bull is “tamed” for the purpose of an event, the fundamental concept runs counter to the welfare of the animal which is the basic foundation of the Prevention of Cruelty to Animals Act, 1960.”

In the A. Nagaraj Judgment, it was held that Bulls cannot be used as performing animals, either for Jallikattu or bullock cart races. The bench of KSP Radhakrishnan and PC Ghose, JJ had the Tamil Nadu Regulation of Jallikattu Act, 2009 was repugnant to the Prevention of Cruelty to Animals Act, 1960 (PCA Act) and had hence, issued a number of directions to ensure the compliance of the PCA Act. [Animal Welfare Board of India v. Union of India,  2018 SCC OnLine SC 66, order dated 02.02.2018]

Case BriefsSupreme Court

Supreme Court: Hearing the plea of certain persons directly affected by the offence enumerated under Section 377 IPC, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ referred the matter to a larger bench and said:

“The individual autonomy and also individual orientation cannot be atrophied unless the restriction is regarded as reasonable to yield to the morality of the Constitution.”

Senior Advocate Arvind Datar argued before the Court that the 2-judge bench decision in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 that upheld the validity of Section 377 has been guided by the perception of the majority which is based on social morality and stands on a platform distinct from constitutional morality. He said:

“Section 377 IPC cannot be construed as a reasonable restriction as that has the potentiality to destroy the individual autonomy and sexual orientation. It is an accepted principle of interpretation of statutes that a provision does not become unconstitutional because there can be abuse of the same.”

He, however, made it clear that he does not intend to challenge that part of Section 377 which relates to carnal intercourse with animals and that apart, he confines to consenting acts between two adults.

Taking all the apsects into consideration, the bench said:

“A section of people or individuals who exercise their choice should never remain in a state of fear. When we say so, we may not be understood to have stated that there should not be fear of law because fear of law builds civilised society. But that law must have the acceptability of the Constitutional parameters. That is the litmus test.”

The bench was, hence, of the opinion that the decision in Naz Foundation case requires re-consideration not only on the ground of Constitutional morality but also social morality as social morality also changes from age to age. [Navtej Singh Johar v. Union of India,  2018 SCC OnLine SC 10, order dated 08.01.2018]

Case Briefs

Supreme Court: After the Aadhaar matter was mentioned before the CJI Court by Senior Advocate Shyam Divan, Dipak Misra, CJ said that the matter will be heard next week for interim relief.

Shyam Divan had told the Court that the original deadline for linking Aadhaar to Mobile numbers, bank accounts, etc. will soon expire and hence, the matter should be heard urgently for interim relief. Attorney General KK Venugopal, on the hand, told that the the dates for linking Aadhaar card to bank account, mobile and many other services will likely be extended to 31st March, 2018. The current deadline for Aadhaan linking in 31st December, 2017.

Last month, when Shyam Divan mentioned the matter for interim hearing and said that the matter be heard by a Constitution Bench, CJI said that not just the main matter but even the interim hearing must be done by a Constitution Bench, but when Shyam Divan asked for a fixed date, he simply said “we’ll see”.

Source: ANI

Case BriefsSupreme Court

Supreme Court: IN the issue relating to ban of female devotees between the age group of 10 to 50 from entering the Sabrimala Temple of Lord Ayyappa in Kerala, the 3-judge bench of Dipak Misra, CJ and R. Banumathi and Ashok Bhushan, JJ referred the matter to a Constitution bench.

Advocate RP Gupta, appearing for the petitioners argued that there was no religious custom or usage in the Hindu religion specially in Pampa river region to disallow women during menstrual period. He said:

“banning entry of women would be against the basic tenets of Hindu religion.”

Senior Counsel K Ramamoorthy, the amicus curiae in the matter, submitted before the that the question as to what is religious practice on the basis of religious belief which would apply not only to Ayyappa temple but would also apply to all the prominent temples all over India, cannot be decided by this bench and, therefore, the matter should be referred to a Constitution Bench.

Senior counsel Raju Ramachandran, also the amicus curiae in the matter, said:

“The right of a woman to visit and enter the temple as a devotee of the deity, as a believer in Hindu faith is an essential facet of her right and restriction of the present nature creates a dent in that right which is protected under Article 25 of the Constitution.”

Refuting the contention of the State of Kerala and the Devaswom Board that the practice is based on religious custom and the same is essential to religious practice and that there is not a total prohibition, he said that such a religious practice cannot be essential to the religion and it has been only imposed by subordinate legislation. He added:

“a significant section of adult women is excluded and the singular ground for exclusion is sex and the biological feature of menstruation. To put it differently, the discrimination is not singularly on the ground of sex but also sex and the biological factor which is a characteristic of the particular sex.”

The State and the Devaswom Board had contended that the petition under Article 32 of the Constitution was not maintainable as no right affecting public at large was involved in the case. It was further said:

“Ayyappa devotees form a denomination by themselves and have every right to regulate and manage its own affairs in matters of religion.”

It was argued that the Kerala High Court decision, where it was held restriction imposed by the Davaswom Board is not violative of Articles 15, 25 and 26 of the Constitution, would operate as res judicata.

The following questions have been framed for Constitution bench’s consideration:

  • Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to “discrimination” and thereby violates the very core of Articles 14, 15 and 17 and not protected by ‘morality’ as used in Articles 25 and 26 of the Constitution?
  • Whether the practice of excluding such women constitutes an “essential religious practice” under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion?
  • Whether Ayyappa Temple has a denominational character and, if so, is it permissible on the part of a ‘religious denomination’ managed by a statutory board and financed under Article 290-A of the Constitution of India out of Consolidated Fund of Kerala and Tamil Nadu can indulge in such practices violating constitutional principles/ morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)?
  • Whether Rule 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits ‘religious denomination’ to ban entry of women between the age of 10 to 50 years? And if so, would it not play foul of Articles 14 and 15(3) of the Constitution by restricting entry of women on the ground of sex?
  • Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and, if treated to be intra vires, whether it will be violative of the provisions of Part III of the Constitution? [Indian Young Lawyers Association v. State of Kerala, 2017 SCC OnLine SC 1236, decided on 13.10.2017]
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Supreme Court: A 5-judge constitution bench will hear the Aadhaar matter for 2 consecutive days next week i.e. on 18th and 19th of July to decide whether the Aadhaar scheme amounts to violation of  Right to privacy of the citizens and data leakage.

It is important to note that on 09.06.2017, the bench of Dr. A.K. Sikri and Ashok Bhushan, JJ had in Binoy Viswam v. Union of India, 2017 SCC OnLine SC 647, upheld the validity of Section 139AA of Income Tax Act, 1961 that makes the linking of Aadhaar Card to the Permanent Account Number (PAN) mandatory and said that the provision is neither discriminatory nor it offends equality clause enshrined in Article 14 of the Constitution. As per the order of the Court, those who have already enrolled themselves under Aadhaar scheme would comply with the requirement of sub-section (2) of Section 139AA of the Act. Those who still want to enrol are free to do so. However, those assessees who are not Aadhaar card holders and do not comply with the provision of Section 139(2), their PAN cards be not treated as invalid for the time being.

Source: ANI

Hot Off The PressNews

On 22.05.2017, the All India Muslim Personal Law Board (AIMPLB) filed an affidavit before the Supreme Court stating that it would issue an advisory through its website, publications and social media platforms asking Qazis to tell the bridegrooms at the time of performing Nikah (marriage) that in case of differences leading to talaq the bridegroom/man shall not pronounce three divorces in one sitting since it is an undesirable practice in Shariat.

The affidavit that will be placed before the 5-judge constituion bench of  J.S. Khehar, CJI and Kurian Joseph, U.U. Lalit, R.F. Nariman and Abdul Nazeer, JJ, mentioned that “at the time of performing ‘Nikah’, the person performing the ‘Nikah’ will advise both the bridegroom/man and the bride/woman to incorporate a condition in the ‘Nikahnama’ to exclude resorting to pronouncement of three divorces by the husband in one sitting.”

The bench had reserved it’s decision in the Triple Talaq matter on 18.05.2017 after a 6-day long hearing.

Source: PTI

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Supreme Court: The Constitution bench of 5 judges belonging to 5 different faiths started hearing the Triple Talaq matter on 11.05.2017. The Bench comprising of J.S. Khehar, CJI and Kurian Joseph, U.U. Lalit, R.F. Nariman and Abdul Nazeer, JJ is hearing the matter on day-to-day basis.

Day 6, May 18th, 2017

  • Amit Chadha, appearing for Shayara Bano: In my opinion, Triple Talaq is a sin and is between me and my maker.
  • Kapil Sibal to SC: Only Legislation can interfere in the matters relating to sinful practices in any religion, not you.
  • AIMPLB: We will, within a week, issue an advisory to Qazis to inform every bride her right to specifically mention in the Nikahnama that she will not accept instant triple talaq.
  • SC reserves it’s judgment after 6 day long hearing.

Day 5, May 17th, 2017

  • J.S. Khehar, CJI to AIMPLB: Is it possible to give bride the right that she will not accept instant triple talaq and whether the board’s advisory will be followed by the Qazi at the ground level? Can’t there be a modern and model Nikah Nama to provide for talaq? New Nikah Nama can also do away with instant Triple Talaq and Nikah Nama.
  • Yousuf Muchala, appearing for AIMPLB: Board’s advisory is not mandatory for all Qazis to follow, however, AIMPLB accepts the suggestions in all humility and will look into it. AIMPLB also showed a resolution passed on 14.04.2017 which says Triple Talaq is a sin and community should boycott person doing it.
  • Yusouf Muchala: A Muslim woman has every right to pronounce Triple Talaq in all forms, and also to ask for very high ‘mehr’ amount in case of talaq.
  • SC: Triple Talaq is not a part of Quran. It came later. So if biddat is a sin then why not Talaq-e-biddat i.e. Instant triple talaq? (Note:- Biddat or Bid’ah refers to innovation in religious matters & evil innovations are forbidden under Islamic law.)
  • Senior Advocate V. Giri: Triple Talaq is a part of religion and hence, it is protected by Article 25 of the Constitution.
  • SC: If you yourself say triple talaq is the worst form of divorce and sinful, how does it then become essential to religion? Protection of Article 25 is applicable only when it is about a practice which is essential to your religions and not for what is not essential.
  • V. Giri: Talaq-e-Biddat finds mention in para 230 of Surah 65 of the Quran.
  • SC (after reading out the versus from the Quran): There is absolutely no mention of Talaq-e-Biddat in the Quran, and only two other forms of talaq,  i.e. Talaq-e-Ehsan and Talaq-e-Ahsan, are mentioned in the holy book. You have to read all the paras before and after to give a complete picture. This book says that in every Friday prayers, you say that biddat is bad and should not be practised by any means and now you say it is part of your 1400-year-old faith.
  • Senior Advocate Raju Ramachandran: Judiciary cannot dictate to a religious community what personal law practices and norms to follow. A community follows practices that it finds relevant for itself and not what an outsider tells it. India has an express reservation in Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). It says that the State follows a policy of non-interference with the personal law practices of any community, unless the community itself takes the initiative to change.
  • Indira Jaising, appearing for Bebak Collective, a Muslim women organisation: But Article I of the CEDAW defines “discrimination against women” and Article 2 obliges the State to act against all forms of discrimination against women.
  • Advocate General Mukul Rohatgi: Issue of Triple Talaq is not an issue of majority or minority. It is an issue of a minority community and that of women within that community.  If Triple Talaq is not present in 25 countries then it cannot be said to be essential to Islam. Rights governed by Article 25 of Constitution are not absolute. Sati, Devdasi etc were once part of Hinduism and were later abolished.
  • CJI: But which one them was set aside by the Court? The were all abolished by bringing in legislation.
  • Mukul Rohatgi: Government will do what is necessary but the Court must step in.
  • Indira Jaising: The key question would be whether personal laws will have to stand scrutiny of fundamental laws. At the end of the day, all the systems will have to comply with the Constitution.
  • Day 5 hearing concludes.

Day 4, May 16th, 2017

  • Kapil Sibal on behalf of AIMPLB: Triple Talaq is a 1400 year old practice. Who are we to call it un-Islamic? He adds that Triple Talaq is not a matter of equity of or good conscience. It is a matter of faith just like the Hindu belief that Lord Rama was born in Ayodhya. Just like the Hindus’ faith about Rama’s birth at Ayodhya cannot be questioned, similarly Triple Talaq which is also a matter of faith for Muslims should not be questioned. There is no question of Constitutional Morality involved. Why should Court interfere?
  • R.F. Nariman, J: You mean we shouldn’t hear the matter?.
  • Kapil Sibal: “Yes, you shouldn’t”. In a Hindu majority country, Muslims have to be protected and vice-versa.
  • Kapil Sibal: The dispute is not just the issue of triple talaq but the prevalence of patriarchy among communities. All patriarchal societies are partial. Is it better for a woman to apply for divorce and fight for 16 years and get nothing?
  • Kurian Joseph, J: Are e-divorces also taking place?
  • Kapil Sibal: Divorces are happening even through whatsapp.
  • Kapil Sibal: We are not saying that Triple Talaq is good and should continue permanently. We also want to change but somebody else should not interfere & force the change on us.
  • Kapil Sibal ended his submissions for the day by saying the issue of Triple Talaq cannot be decided in 6 days.

Day 3, May 15th, 2017

  • Attorney General Mukul Rohatgi suggests the hearing of the issues relating to polygamy and Nikah Halala along with Triple Talaq. The bench says that the said matters will be taken up in future. The present hearing will be limited to the issue of Triple Talaq sue to time constraint.
  • Arguing on behalf of the Government, Attorney General: Most radical countries like Pakistan and Bangladesh are moving towards reforms but we, as a secular State, are still debating. You are guardians of the constitution. Examine if Triple Talaq is permissible under the constitution. The Government will bring a law if Triple Talaq is abolished. people will not be left in lurch.
  • J.S. Khehar, CJI: We are the guardians of minority as well as the majority. We will strike down Triple Talaq if Government can establish that it is not an integral part of Islam
  • Mukul Rohatgi: Supreme Court is not an ecclesiastical court to check whether Triple Talaq is essential to Islam or not. Stating that the Court was looking to the problem from wrong abgle, he said that Issues of Muslim marriage and divorce were separated from religion in Shariat Act way back in 1937 itself. The matter should be decided on the basis of fundamental rights of gender equality & human rights under Arts 14, 15, 21 & 51A of the Constitution.
  • J.S. Khehar, CJI: The tenets of religion can neither be tested on scientific grounds or on other grounds.
  • Mukul Rohatgi: Why is the matter being argued before the Constitution Bench then?. Matters are referred to the Constitution Bench because they have something to do with the Constitution. Nothing, no advocacy by man, will help cover something that is wrong by the Constitution.
  • Mukul Rohatgi: Women lived in fear of Sati until the law declared it illegal. Muslim women want freedom to live without fear of Triple Talaq.
  • J.S. Khehar, CJI: Women should be equal, but within the particular religion.
  • Mukul Rohatgi: A constitution bench cannot shut eyes to a Muslim woman’s constitutional rights of equality and gender justice.

Day 2, May 12th, 2017:

  • Court resumes the hearing.
  • R.F. Nariman, J.: One should see difference between theory & practicality at present context in the context of Nikah & Talaq in Islam.
  • Salman Khurshid: Triple Talaq is not practiced anywhere except India.
  • SC: Why all other countries say it is not valid in Islam?
  • Salman Khurshid: Triple Talaq is sinful and is discouraged. But still, it is valid in law.
  • SC: Is it like death penalty, which for some is sinful but legal. If lawful man can be sinful? What is sin in the eyes of God, can it be valid in law?
  • Salman Khurshi: It cannot be.
  • SC: We have to understand the religion from the point of view of what religion says not what you understand in order to test it on the principle of Article 25 (freedom to practice religion) of the Constitution. Tell us whether Triple Talaq is a custom/usage or fundamental to Islam. Where does it lie, Shariat or customs and usage?
  • Senior Advocate Ram Jethmalani, appearing for Forum for Awareness of National Security: Triple Talaq violates Article 14 as it gives the right to terminate marriage only to men and not to women.
  • J.S. Khehar, CJI: The Court is dealing with Personal Law in the present matter and  Article 15 of the Constitution talks about State law.
  • Ram Jethmalani: Triple Talaq makes a distinction on the ground of sex & this method is abhorrent to the tenets of holy Quran and no law can allow a wife to become an ex-wife at the fancy of the husband. No amount of advocacy can or will save this sinful, repugnant practice which is contrary to the constitutional provisions.
  • SC: There are some school of thoughts which say that Triple Talaq is legal but it is the worst and an undesirable form of marriage dissolution.
  • The matter is listed for further hearing on 15.05.2017 as part heard.

Day 1, May 11th, 2017:

  • Amit Singh Chadha, appearing for one of the petitioners Shayara Bano: The practice of Triple Talaq is not fundamental to Islam and hence can be done away with. Islamic countries like Pakistan and Bangladesh have also declared it to be invalid.
  • SC: We would peruse the prevalent laws in various Islamic countries on the issue.
  • Senior Advocate Indira Jaising, appearing for petitioners: In case of divorces being granted through extra-judicial mechanism, there should be a “judicial oversight” to deal with the consequences.
  • Senior advocate Salman Khurshid, assisting the Court in his personal capacity and Senior advocate Kapil Sibal, appearing on behalf of the All India Muslim Personal Law Board: Triple Talaq is a non issue.
  • Kapil Sibal: No prudent Muslim would wake up one fine morning and say talaq, talaq and talaq. Salman Khurshid said Triple Talaq not considered complete without conciliation efforts between the husband and the wife.
  • SC: Is the reconciliation after the pronouncement of triple talaq in one go codified?
  • Salman Khurshid: No, it’s not
  • Kapil Sibal: Triple Talaq issue is outside the ambit of judicial review.
  • SC: The issue is, in fact, prima facie related to fundamental rights.
  • SC: If Triple Talaq is declared invalid, what will be the procedure available to husband for seeking divorce? Will it not create a vacuum?

It is important to note that recently on 19.04.2017, the Allahabad High Court has termed triple talaq as unconstitutional, observing that the practice is violation of a woman’s rights. The Constitution bench is hearing the matter during the summer vacations of the Court, in the suo motu proceedings initiated by the Court in In Re: Muslim Women’s Quest for Equality v. Jamiat Ulma-I-Hind, SMW(C) No. 2/2015 with a bunch of related petitions being merged with the case.

Source: PTI & ANI

News

As per the Circulars dated 05.05.2017, the Constitution bench of 5-judges will hear the below mentioned matters during summer vacations that are commencing from 11.05.2017:

  • In Re: Muslim Women’s Quest for Equality v. Jamiat Ulma-I-Hind, SMW(C) No. 2/2015  – The Triple talaq matter from 11.05.2017. The Circular, however, did not mention the names of the 5-judges who will be hearing the matter.
  • Karmanya Singh Sareen v. Union of India, SLP(C) No. 804/2017 – The Whatsapp Data Privacy matter from 15.05.2017. Dipak Misra, Dr. A.K. Sikri, Amitava Roy, A.M. Khanwilkar and M.M. Shantanagouda, JJ are hearing the matter.
Case BriefsSupreme Court

Supreme Court: The Bench of Dipak Misra and R.F. Nariman, JJ referred the matter relating to referring and relying upon the report of the Parliamentary Standing Committee in a litigation filed before this Court either under Article 32 or Article 136 of the Constitution of India, before a Constitution Bench regard being had to the substantial question of law relating to interpretation of the Constitution involved.

The Court also asked the Constitution Bench to decide as to was as to whether such a Report can be looked at for the purpose of reference and, if so, can there be restrictions for the purpose of reference regard being had to the concept of parliamentary privilege and the delicate balance between the constitutional institutions that Articles 105, 121 and 122 of the Constitution conceive.

The Court was hearing the petition relating to action taken by the Drugs Controller General of India and the Indian Council of Medical Research (ICMR) pertaining to approval of a vaccine, namely, Human Papilloma Virus (HPV)  for preventing cervical cancer in women and the experimentation of the vaccine was done as an immunization by the Governments of Gujarat and Andhra Pradesh, before bifurcation, and the 81st Report dated 22nd December, 2014 of the Parliamentary Standing Committee was brought into the notice of the Court

The Court was of the prima facie opinion that the Parliamentary Standing Committee report may not be tendered as a document to augment the stance on the factual score that a particular activity is unacceptable or erroneous. It was opined that the view of a member of the Parliament or a member of the Parliamentary Standing Committee who enjoys freedom of speech and expression within the constitutional parameters and the rules or regulations framed by the Parliament inside the Parliament or the Committee is not to be adverted to by the court in a lis. Explaining the nature of the reports, the Court said that the reference to Constituent Assembly debates, reports of the Parliamentary Standing Committee and the speeches made in the Parliament or for that matter, debates held in Parliament are only meant for understanding the Constitution or the legislation, as the case may be. It is quite different than to place reliance upon Parliamentary Standing Committee report as a piece of evidence to establish a fact. [Kalpana Mehta v. Union of India, 2017 SCC OnLine SC 390, decided on 05.04.2017]