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Supreme Court: The bench of Ranjan Gogoi and Navin Sinha, JJ asked the Central Government to constitute Special Courts to deal with cases involving MPs and MLAs and speedy disposal of these matters after the Election Commission of India recommended life ban on politicians convicted in criminal cases. The bench asked Centre to apprise it with the details of the criminal cases lodges against politicians from 2014 till date.

The Court asked Centre to place before it details regarding 1,581 cases involving MPs and MLAs, as declared by politicians at the time of filing their nominations during the 2014 general elections and that how many of these 1,581 cases have been disposed of within one year and how many have ended either in conviction or acquittal of the accused.

Centre told the bench that decriminalisation of politics has to be done and it was not averse to the setting up of special courts to deal with cases involving politicians and that the recommendations of the Election Commission of India and the Law Commission favouring life-time disqualification of politicians convicted in criminal cases was under the active consideration of the government.
The Court, hence, asked Centre to place before it the scheme for setting up of such special courts and also indicate the amount of funds that could be earmarked for the purpose. The matter has been listed on December 13, 2017 and Centre has to do the needful within 6 weeks.
Source: ET

Case BriefsSupreme Court

Supreme Court: With the intent to make the exercise of senior designation more objective, fair and transparent so as to give full effect to consideration of merit and ability, standing at the bar and specialized knowledge or exposure in any field of law, the 3-judge bench of Ranjan Gogoi, RF Nariman and Navin Sinha, JJ laid down elaborate guidelines for the system of designation of Senior Advocates in the Supreme Court as well as all the High Courts of India.

The Court said:

“The sole yardstick by which we propose to introduce a set of guidelines to govern the matter is the need for maximum objectivity in the process so as to ensure that it is only and only the most deserving and the very best who would be bestowed the honour and dignity. The credentials of every advocate who seeks to be designated as a Senior Advocate or whom the Full Court suo motu decides to confer the honour must be subject to an utmost strict process of scrutiny leaving no scope for any doubt or dissatisfaction in the matter.”

Committee for Designation of Senior Advocates

All matters relating to designation of Senior Advocates in the Supreme Court and all the High Courts of the country shall be dealt with by a Permanent Committee to be known as “Committee for Designation of Senior Advocates” headed by the Hon’ble the Chief Justice of India and consisting of two senior-most Judges of the Supreme Court of India (or High Court(s), as the case may be) and the learned Attorney General for India (Advocate General of the State in case of a High Court). The above four Members of the Permanent Committee will nominate another Member of the Bar to be the fifth Member of the Permanent Committee.

Permanent Secretariat

The said Committee shall have a permanent Secretariat the composition of which will be decided by the Chief Justice of India or the Chief Justices of the High Courts, as may be, in consultation with the other Members of the Permanent Committee. The Permanent Secretariat will:

  • Compile relevant information regarding the advocate
  • Publish the proposal of designation of a particular Advocate in the official website of the concerned Court inviting the suggestions/views of other stakeholders in the proposed designation
  • Put up the case before the Permanent Committee

Criterion for designation

The reputation, conduct, integrity of the Advocate(s) concerned including his/her participation in pro-bono work; reported judgments in which the concerned Advocate(s) had appeared; the number of such judgments for the last five years, will be considered for designating an advocate as a Senior Advocate.

Process of designation

  • The point based assessment by the Permanent Committee will be made by:
    • examining each case in the light of the data provided by the Secretariat of the Permanent Committee;
    • interviewing the concerned Advocate.
  • All the names that are listed before the Permanent Committee/cleared by the Permanent Committee will go to the Full Court.
  • Voting by secret ballot will not normally be resorted to by the Full Court except when unavoidable. In the event of resort to secret ballot decisions will be carried by a majority of the Judges who have chosen to exercise their preference/choice.

Review of application

All cases that have not been favourably considered by the Full Court may be reviewed/reconsidered after expiry of a period of two years following the manner indicated above as if the proposal is being considered afresh;

Recall of Designation

In the event a Senior Advocate is guilty of conduct which according to the Full Court disentitles the Senior Advocate concerned to continue to be worthy of the designation the Full Court may review its decision to designate the concerned person and recall the same.

The present order of the Court is an outcome of the petition filed by Senior Advocate Indira Jaising, who had also served as Additional Solicitor General for the Union of India. In the petition she contended that the present system of designation of Senior Advocates in the Supreme Court of India was flawed and the system needed to be rectified and acceptable parameters laid down. [Indira Jaising v. Supreme Court of India, 2017 SCC OnLine SC 1223, decided on 12.10.2017]

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Supreme Court: Hearing the plea questioning the validity of a provision permitting a man to have physical relationship with his wife, even if she was aged between 15 and 18 years, the bench of Madan B. Lokur and Deepak Gupta, JJ expressed dismay over the prevalence of the practice of child marriage despite the existence of the Child Marriage Prohibition Act and said

“It is a hard reality and is unfortunate that most of the child marriages happening in the country are done by parents of the girl child. However, to this, there are odd exceptions when a minor boy and girl fall in love and marry on their own.”

Advocate Gaurav Agarwal, appearing for NGO Independent Thought, brought to the Court’s notice that by the Criminal Law (Amendment) Act, 2013, the age of consent for sexual intercourse by a girl, which was earlier 16 years has now been increased to 18 years, however, exception 2 to section 375 of the IPC still retains the age of consent as 15 years, due to which there is a huge gap of three years in the age of consent for a married girl child and an unmarried girl. He added that if the object behind increasing the age of consent to 18 years in 2013, was that a girl below that age is incapable of realising the consequences of her consent, then marriage of girl between the age of 15-17 years does not make the girl mature enough, mentally or physically, for the purpose of consent.

Taking note of the argument, the Court sought to know whether it can create an offence by striking down the exception 2 of section 375 of IPC which the Parliament has refused to do. It also showed concern over the fate of the children born from such marriages if the provision was struck down.

The Centre, on the other hand, had contended that child marriage were still happening in the country due to uneven economic and educational development and it has been, therefore, decided to retain the age of 15 years under exception 2 of section 375 of IPC, so as to give protection to husband and wife against criminalising the sexual activity between them.

The next date of hearing on the matter is 05.09.2017.

Source: PTI

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Supreme Court: The 10-year-old girl, who’s plea to terminate her pregnancy was refused by the Supreme Court on 28.07.2017, will receive Rs. 10 Lakh compensation from the Chandigarh Administration as directed by the Court. The Court asked the Chandigarh administration to release Rs. 1 Lakh to the family of the girl and keep the remaining Rs. 9 Lakh in Fixed Deposit.

On 28.07.2017, the Court had held that allowing the termination of her pregnancy might be dangerous for the girl’s health, based on the medical report of the 10-year-old rape survivor who was repeatedly raped by her uncle. The Medical Board of PGI, Chandigarh said in it’s report that  it would neither be in the interest of the girl child nor the alive foetus, which is approximately 32-weeks-old, to order abortion.

Source: ANI

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Supreme Court: Refusing to take suo motu cognizance in the matter where over 60 children died in a Gorakhpur Hospital, the bench of JS Khehar, CJI and Dr. DY Chandrachud, J asked the advocate, who mentioned the matter before the Court, to approach the High Court instead.

In the last 7 days, over 60 children have died in the Baba Raghav Das Medical College Hospital, Gorakhpur allegedly after the disruption of oxygen supply due to non payment of bills to the oxygen cylinder provider. Many children were infants who were in the intensive care unit.

The Court said that the authorities in UP including the Chief Minister Adityanath Yogi have been handling the situation and if any action needs to be taken then the advocate should approach the Allahabad High Court. The advocate had also sought an SIT probe into the matter.

Source: ANI

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Putting rest to the speculation over the the appointment of the next Chief Justice of India, Centre has appointed Justice Dipak Misra as the 45th Chief Justice of India. The incumbent Chief Justice of India, Justice JS Khehar, who is set to retire on August 28, 2017, had recommended Justice Misra’s name as his successor. Justice Misra will serve as the 45th CJI till October 2, 2018.

Justice Dipak Misra was enrolled as an Advocate in 1977 and practiced in Constitutional, Civil, Criminal, Revenue, Service and Sales Tax matters in the Orissa High Court and the Service Tribunal. He was appointed as an Additional Judge of the Orissa High Court in 1996 and was transferred to the Madhya Pradesh High Court in 1997. He became a permanent Judge in December, 1997. Justice Misra assumed charge of the office of Chief Justice, Patna High Court on 23rd December, 2009 and charge of the office of the Chief Justice of Delhi High Court on 24th May, 2010. He was then elevated as Supreme Court judge on October 10, 2011.

 

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On 08.08.2017, the Shia Waqf Board filed an affidavit before the Supreme Court in the Ayodhya matter and said that it was fine if the Masjid was located in a Muslim dominated area at a reasonable distance from Lord Ram’s birth place i.e. Ram Janmabhoomi. In the affidavit, the Board has mentioned that since the Babri Masjid was a Shia Waqf, the Shia Waqf Baord alone is entitled to negotiate and arrive at a peaceful settlement with the stakeholders.

The Babri Masjid was built in the 16th century and was demolished in the year 1992 for allegedly being built over the Ram Janmabhoomi. The demolition resulted into nation-wide communal riots between Hindu and Muslim community that killed around 900 people. Since then, there has been an ongoing dispute over the rights of the Hindu and Muslim community to build a temple or a masjid, respectively.

Source: ANI

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Supreme Court: The bench of JS Khehar, CJ and AK Goel and Dr. DY Chandrachud, JJ issued notice to the Centre seeking it’s response on the validity of the special status of the State of Jammu and Kashmir under Article 370 of the Constitution.

As per the petitioner Kumari Vijayalakshmi Jha, Article 370 of the Constitution had lapsed automatically with the dissolution of the Constituent Assembly of Jammu and Kashmir on January 26, 1957. The plea also urged to declare the separate Constitution of Jammu and Kashmir as invalid. The petitioner approached the Supreme Court after her plea was dismissed by the Delhi High Court last year.

Source: ANI

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Kerala High Court: In the writ petition filed by Prasanth Sugathan, legal director of the SFLC, the Court passed an interim order allowing the petitioner to file his Income Tax Return manually without quoting the Aadhaar number.

The petitioner had challenged the mandatory requirement to quote Aadhaar number or enrollment ID for filing Income tax returns as per Section 139AA of the amended Income Tax Act, 1961. He had argued that the partial stay granted by the Supreme Court in Binoy Viswam v. Union of India, 2017 SCC OnLine SC 647,  in compulsory linking of PAN and Aadhaar would be futile if assesses were forced to quote their Aadhaar number while filing IT returns.

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: CNN-News18

OP. ED.

The 9-judge bench Right to Privacy hearing came to end and the whole country is now waiting for the judgment to be out, some in anticipation of their rights to be recognized and some hoping for a decision that will act as a firm standing for the Aadhaar scheme. Whichever side the Supreme Court picks, one cannot deny the fact that this 6-day long hearing was one of the biggest hearings that the World has witnessed lately and whatever these 9-judges decide, is going to be a law for a long time.  To put things into perspective, this 9-judge bench was formed in the year 2017 to decide the correctness of a law that was laid down in the year 1954. Stakes are high and neither of the parties took it lightly. While some arguments gained applaud, some managed to raise a few eyebrows. Let’s look back at some of the important highlights from the hearing.

  • Privacy as a Fundamental Right without defining contours

Petitioners argued that Privacy is the very essence of liberty. It is not only a fundamental right but an inalienable right. MP Sharma and Kharak Singh cases deal with only single aspect of privacy and the Court needs to declare a broader Right to Privacy as a Fundamental right. If that is not done, all other rights will have no meaning. Dr. D.Y. Chandrachud, J showed some concern over the possible effects of declaring Right to Privacy as a Fundamental Right without defining any contours. He said that it might make the Naz Foundation judgment on Section 377 IPC vulnerable.

  • Dark Web doesn’t justify State actions

S.A. Bobde, J quizzed the petitioners on dark web to which the Petitioners responded by saying that there is no denying that 80% of the internet is Dark Web but that cannot justify State’s actions in violation of privacy. This cannot have any bearing on the recognition of the right.

  • No Fundamental Right to Privacy = Misuse by State

Petitioners put forth the concerns over possible misuse of power by the Government if Right to Privacy is not recognized as Fundamental Right. It was contended that in this digital age, if not in Aadhaar, a data protection and privacy question would have risen in another case. The delay in recognizing Right to Privacy by the Courts has resulted into the collection of the biometric data of all the citizens of the country in the name of Aadhaar. It was argued that the Government suspended the rights of the people during emergency and it wants to do the same today even in the absence of emergency.

  • Privacy is vague; has many aspects

State based it’s argument of the vagueness of the definition of Privacy. It was contended that since there is no clear definition of privacy, it cannot be elevated to Fundamental Right. It was also submitted that most of the aspects of privacy were already protected under Article 21 of the Constitution and that there was no need to declare Privacy as a fundamental right and asked the Court to define privacy on cases-to-case basis. It was argued that privacy was only a civil right and such rights were deliberately left out by the framers of the Constitution.

  • State’s notion of Privacy in a Poor or Developing nation like India

Centre argued that there should be no fundamental right to privacy in a developing nation. State of Maharashtra also took a strong stand against fundamental right to privacy and said Aadhaar is important for subsidy schemes and if asked to choose between subsidized food and private information coming out, people will choose food.

  • Privacy norms in other Countries

State argued that there were different norms of privacy in different countries and India’s definition of privacy is much different. One example of this difference that was quoted before the Court was of Public Display of Affection that was allowed in the US, to which Dr. D. Y. Chandrachud responded by saying that this means that Indians were more private and needed right to privacy.

  • Effect of recognizing Fundamental Right to Privacy on existing laws

State showed it’s apprehension towards the possible effect of declaring Right to Privacy as a Fundamental Right to Privacy by saying that there are Rules that say that compound walls can only be three feet or so and the Court will be flooded with the cases challenging such laws. J Chelameswar, J asked the State to calm down and said that declaring privacy as a fundamental right will not mean that every regulation will be struck down.

  • Right to be left alone

State submitted that privacy was nothing but a formal name for right to be left alone and that right has already been recognized as a part of liberty.

  • States in favour of Fundamental Right to Privacy

States of Karnataka, West Bengal, Punjab, Kerala and Puducherry argued in favour of fundamental right to privacy and said that there can be no liberty without privacy. Kapil Sibal, appearing for 4 out of 5 States, in rejoinder said that he had little faith on the Parliament and that the Court should decide the matter.

  • Aadhaar vis-à-vis Data Protection

Even though the Court had made it clear that it will only decide the issue relating to Right to Privacy and will not go into the merits of Aadhaar, State defended the Aadhaar Scheme during the hearing. This resulted into questioning by the Court on the Data Protection measures under the Aadhaar Act, 2016. State replied by saying that Section 29 of the Act prohibits disclosure of core biometrics. The Court seemed unimpressed and said that a robust mechanism was required.

  • Aadhaar’s survival chances

While the Court said that it will give a comprehensive judgment on right to privacy for the conceptual clarity of the nation, it also hinted that the judgment will not have a major impact on the Aadhaar Scheme. Upon witnessing the apprehension of the State, R.F. Nariman, J said that the Court was not saying that it will repeal Aadhaar. It will try to balance Aadhaar with right to privacy. All said and done, though there is strong change that the Supreme Court might recognize Right to Privacy, the Aadhaar Scheme, that prompted this great debate, will survive.

 

Read the detailed submissions of both the sides here.

Also, here is a glimpse of how the Supreme Court has seen the Right to Privacy in the last 60 years and why a 9-judge bench had to step in to decide the issue.

 

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Supreme Court: Refusing to stay the use of the ‘None of the Above’ (NOTA) option in the Gujarat Rajya Sabha polls that are to be held on August 8, 2017, the Court asked the Gujarat Congress that why they were so late in filing the plea against NOTA when the Election Commission had issued the Notification in January, 2014.

The NOTA option, that will be introduced for the first time in the Gujarat Rajya Sabha polls, was directed to be included on the ballot paper or Electronic Voting Machines by Supreme Court in PUCL v. UOI, (2013) 10 SCC 1. The Court, in the said judgment, recognised the right not to vote and said that introduction of NOTA option will compel the political parties to nominate a sound candidate as by using NOTA option, the voter will have the right to reject all candidates. The Court said that this right was necessary for not only ensuring free and fair elections but also encourage the people in participating in the elections as many people tend to avoid voting as they not find any candidate worthy of their vote.

Source: ANI

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Supreme Court: The 3-judge bench of Dipak Misra, Amitava Roy and A M Khanwilkar, JJ allowed the petition seeking cancellation of Bihar Chief Minister Nitish Kumar’s membership of the state Legislative Council for allegedly concealing a pending criminal case against him. Stating that it will consider the matter, the bench said it will fix a date for hearing the matter.

The petition, which was filed yesterday, alleged that there was a criminal case against the JD(U) leader wherein he was accused of killing a local Congress leader Sitaram Singh, and injuring four others ahead of Lok Sabha by-election to the Barh constituency in 1991. The petitioner has also sought a direction to the CBI to register an FIR against Kumar in the case. He sought cancellation of Kumar’s membership as per the Election Commission’s 2002 order stating it is mandatory for candidates to disclose criminal cases against them in their affidavits annexed to nomination papers. He claimed that the Bihar Chief Minister did not disclose the criminal case that was pending against him in affidavits since 2004, except for 2012.

Source: PTI

Hot Off The PressNews

Supreme Court: In the Bihar Liquor ban case, the bench of Dipak Misra and A.M. Khanwilkar, JJ dismissed a plea of the Confederation of Indian Alcoholic Beverage Company to extend the 31.07.2017 deadline for disposing of the old stock of alcoholic beverages outside the State of Bihar.

The traders had sought more time to get rid of the liquor stocks on the ground that over 2.8 lakh bottles were still left and would cause immense financial loss to them. The Court refused to grant the said relief to the traders and directed them to destroy the stock after 31st July.

The Patna High Court had last year, on 30.09.2016, quashed the law imposing liquor ban in the State of Bihar on the ground that the punishments imposed in respect of the Liquor ban in the State of Bihar by way of the amendment to the Bihar Excise Act, 1915 were quite unreasonable and draconian and cannot be justified in a civilized society. However, the division bench of Iqbal Ahmed Ansari, CJ and Navaniti Prasad Singh, J gave different views on whether or not the right to drink alcohol was a fundamental right. The Supreme Court, on 07.10.2017, stayed the Patna High Court Order.

However, the Bihar government had, on 02.10.2017, come up with the Bihar Prohibition and Excise Act, 2016 banning sale and consumption of liquor.

Source: PTI

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The 9-judge bench of J.S. Khehar, CJ and J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, Dr. D.Y. Chandrachud, S.K. Kaul and S.A. Nazeer, JJ is hearing the issue of ‘right to privacy’ since 19.07.2017 and today was the 4th day of hearing. Petitioners had already concluded their arguments on 20.07.2017. Here are the 15 biggest takeaways from the Union and States’ submissions till now:

  1. Senior Advocate Kapil Sibal: Privacy is not an absolute right. Will never be. The Court will have to strike a balance. You should not lay down the law but just to hold the existence of the inalienable inherent right.
  2. Attorney General KK Venugopal: Privacy can be one of the species of personal liberty. This right of privacy consists of a large number of sub-species. All these sub species cannot be elevated to the level of a fundamental right.
  3. Dr. D.Y. Chandrachud, J: If we say privacy is not a Fundamental Right at all it would be a blanket sanction of anything the State can do.
  4. It’s preposterous to state that India will become totalitarian because of Aadhaar. Privacy claims require better priority in developed countries. In a developing country there should be no Fundamental Right to privacy.
  5. Dr. D.Y. Chandrachud, J: Privacy is not an elitist concern and it is equally applicable to the large masses. For example if State wants forced sterilization on slum dwellers for population control among that group, perhaps only privacy claim may stand in the way.
  6. Attorney General KK Venugopal: World Bank has said that something like Aadhaar should be followed by all countries. Article 21 includes right to live with dignity I.e also to basic needs such as food reasonable environment, suitable accommodation etc. An Act passed with those salutary objects cannot be defeated on claims to privacy.
  7. J. Chelameswar, J: There is not data protection n Aadhaar. The moment you put fingerprint whole world has the data access.
  8. Attorney General KK Venugopal: Section 29 of the Act provides for prohibition of disclosure of core biometrics.
  9.  Dr. D.Y. Chandrachud, J: Where is the protection for the mobile number? Why medical history is excluded from definition of demographic info and why they are not protected? There is no robust data protection mechanism.
  10. S.A. Bobde and R.F. Nariman, JJ (To Tushar Mehta appearing for UIDIA) : So you have enacted this to protect privacy! Then why are you disputing the right.
  11. Attorney General KK Venugopal:The very fact that there is an Act passed to protect privacy means there is no Fundamental Rights.
  12. Senior Advocate C.A. Sundaram: There is no unambiguous definition of privacy to be crystallized as a right
  13. CJI and S.A. Bobde, J: Life, liberty and dignity are also not defined but they are all Fundamental Rights.
  14. Senior Advocate C.A. Sundaram: Law is set of rules by which society interacts. There are NDMC rules that compound walls can only be three feet. If privacy becomes Fundamental Right, all cases challenging such laws will come before the Court. Even if the bench were to hold the right, it will have to define it to some extent. Every Government action has an impact on privacy, therefore, a broad constitutional right to privacy must not be laid down.
  15. R.F. Nariman, J: We are going to consider all aspects and give a comprehensive judgment for conceptual clarity for the nation.

Looking for a cheat sheet for petitioners’ submissions? Click here.

Read the detailed submissions of both the sides here.

Also, here is a glimpse of how the Supreme Court has seen the Right to Privacy in the last 60 years and why a 9-judge bench had to step in to decide the issue.

Hot Off The PressNews

Supreme Court: The Court asked all the States to issue affidavits on the the rising incidents of cow vigilantism across the country, after the Union of India said that cow vigilantism is a State subject.

The Union of India also told the Court that it did not support violent acts of the Cow Vigilantes or Gau Rakshaks and that the States should take strong action against people doing such acts. Cow vigilantism had resulted into violence and deaths and recently Prime Minister Narendra Modi had condemned the acts of Gau Rakshaks.

Source: ANI

OP. ED.

It is no news that the Aadhaar Scheme that makes it mandatory for the citizens to link their PAN cards with the Aadhaar cards, along with the fact that the Constitution of India does not specifically recognise the ‘Right to Privacy’ as a fundamental right has resulted into a nationwide debate. The 5-judge bench of J.S. Khehar, CJ and J Chelameswar, SA Bobde, DY Chandrachud & Abdul Nazeer, JJ, that was hearing the Aadhaar right to privacy matter today found itself incompetent to decide the issue in the light of the decisions of larger benches that said that ‘right to privacy is not a fundamental right’ and as a result, tomorrow, a 9-judge bench will decide whether right to privacy is a fundamental right or not. Since, the right has not been recognized in Constitution, the Supreme Court has, on various occasions, defined it’s scope as per the principles of ‘Life and Personal Liberty’ as enshrined under the Constitution of India. The issue was first decided in 1954 and it still stands unresolved in 2017.

Below are the landmark judgments on the ‘right to privacy’ issue:

  • M. P. Sharma v. Satish Chandra, 1954 SCR 1077 : This is the first case that dealt with the issue concerning the right to privacy & the 8-judge bench categorically held that right to privacy is not fundamental right. Below is the relevant except from the judgment:

“A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction.”

  • Kharak Singh v. State of U.P., 1964 SCR 332 : The 4:2 majority of a 6-judge bench held that “the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.”

However, K. Subba Rao, J, writing down the minority view for himself and J.C. Shah, J said that “the right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty.” Further defining the ‘right to personal liberty’, it was said that “it is a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures.”

  • Gobind v. State of M.P., (1975) 2 SCC 148: Holding that the right to privacy is not absolute, the 3-judge bench said that “Depending on the character and antecedents of the person subjected to surveillance as also the objects and the limitation under which surveillance is made, it cannot be said surveillance by domiciliary visits would always be unreasonable restriction upon the right of privacy.” It was further said that “as the right to privacy of movement cannot be absolute, a law imposing reasonable restriction upon it for compelling interest of State must be upheld as valid.”
  • PUCL v. Union of India, (2004) 9 SCC 580: The 3-judge bench held that “Right to privacy is subservient to that of security of State.”
  • State of Maharashtra v. Bharat Shanti Lal Shah, (2008) 13 SCC 5: A 3-judge bench held that “the interception of conversation though constitutes an invasion of an individual right to privacy but the said right can be curtailed in accordance with procedure validly established by law. Thus, what the court is required to see is that the procedure itself must be fair, just and reasonable and non-arbitrary, fanciful or oppressive.”
  • District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496: A division bench held that “every citizen has a right to safeguard the privacy of his own. However, in the case of a matter being part of public records, including court records, the right of privacy cannot be claimed.”
  • Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1: In the matter where the constitutionality of the 99th Constitutional Amendment & National Judicial Appointments Commission, 2014 was in question, this is what the the 5-judge bench said that “the balance between transparency and confidentiality is very delicate and if some sensitive information about a particular person is made public, it can have a far-reaching impact on his/her reputation and dignity. The 99th Constitution Amendment Act and the NJAC Act have not taken note of the privacy concerns of an individual.” In an attempt to strike a balance between right to know and right to privacy, the Court said that “The right to know is not a fundamental right but at best it is an implicit fundamental right and it is hedged in with the implicit fundamental right to privacy that all people enjoy.”
  • Rajagopal v. State of T.N., (1994) 6 SCC 632: A 2-judge bench defined the right to privacy as the right to be let alone. It held the right of privacy to be implicit in the right to life and liberty guaranteed to the citizens of India by Article 21.

We also cannot ignore the fact that 2 out of the 9-judges that will hear the matter tomorrow, are of the opinion that the rulings in the MP Sharma and Kharak Singh cases are incorrect. J. Chelameswar and S. A. Bobde, JJ were a part of the 3-judge bench in K.S. Puttaswamy v. Union of India, (2015) 8 SCC 735 in which the Aadhaar matter was referred to a larger bench while stating that if the MP Sharma and Kharak Singh cases “are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality.”

A lot is at stakes when it comes to tomorrow’s hearing. A 9-judge bench’s decision might prove as a huge turning point. Will the decision prove to be a blow to the Aadhaar Scheme that the Government is so passionate about or will it end up sparking another debate on the fundamental rights of the citizens? Let’s wait and let tomorrow decide.

Hot Off The PressNews

Supreme Court: Showing concern over the possible misuse of Cryptocurrencies (Digital Currency) including BitCoin, the Court asked the Central government and the Reserve Bank of India for information on steps taken to ensure digital currencies are not used for terror financing or money laundering. 4 weeks time has been given to the Central Government to examine all the matters relating to Digital Currency.

At present there is not law on the legality of digital currency in India.

Source: News18

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Supreme Court: Rejecting the plea of Naveen Jindal seeking permission to challenge the Trail Court’s order in Coal Scam, the 3-judge bench headed by Madan B. Lokur, J reiterated that High Courts cannot entertain the appeals challenging the orders of Special Courts. Such pleas can be entertained only by the Supreme Court.

Congress Leader Naveen Jindal had sought for challenging the Trail Court’s order before the Delhi High Court in the Coal Block allocation case where he was charged with corruption, criminal misconduct, cheating and criminal conspiracy in relation to the coal blocks that were allocated to the Jindal Group of companies.

Refusing to entertain his plea, the Court said that it will not revisit it’s July 25, 2014 order which had said that challenge to any interim order of the special court during pendency of trial in coal scam cases will be heard only by it.

Source: PTI

Hot Off The PressNews

Supreme Court refused to pass interim order in the Aadhaar matter, however, it clarified that those who don’t have Aadhaar Card won’t be deprived of any government schemes or benefits till next date of hearing.

On 09.05.2017, Senior Advocate Shyam Divan had urged the Court that  some urgent orders are required on the interim prayers made by the petitioners, as enrollment under Aadhaar in respect of certain welfare schemes is required by 30th June, 2017.

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

 

Case BriefsSupreme Court

Supreme Court: The Bench of Ranjan Gogoi and Navin Sinha, JJ referred the matter relating to framing of guidelines for designation of practicing Advocates as designated Senior Advocate(s) in the Supreme Court to a larger bench.

Noticing that the decision of this Court on the said issues may have effect on the process and procedure of designation of Senior Advocate(s) by the High Courts in the country, apart from the Supreme Court of India, the Court said that it is necessary to know the precise guidelines that are in force in different High Courts for designation of Senior Advocates. [Indira Jaising v. Supreme Court of India, WRIT PETITION (CIVIL) NO(S). 454/2015, order dated 22.03.2017]