A.D.M. Jabalpur v. Shiv Kant Shukla (The Habeas Corpus Case), (1976) 2 SCC 521
Facts in Brief
On June 25th,
1975 the President in exercise of powers conferred by clause (1) of Articles 352 (Proclamation of Emergency) of
the Constitution declared that a grave emergency existed whereby the security of India was threatened
by internal disturbances. On June 27th, 1975 in exercise of powers conferred by clause (1) of Articles
359 the President declared that the right of any person including a foreigner to move any court for
the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution and all
proceedings pending in any court for the enforcement of the abovementioned rights shall remain suspended
for the period during which the proclamations of emergency made under clause (1) of Article
352 of the Constitution on December 3rd, 1971 and on June 25th, 1975 were in force. The Presidential
Order of June 27, 1975 further stated that the same shall be in addition to and
not in derogation of any order made before the date of the aforesaid order
under clause (1) of Article 359 of the Constitution.
On January 8th, 1976 there was a
notification passed in the exercise of powers conferred by clause (1) of Article 359 of the Constitution whereby the
President declared that the right of any person to move any to court for the enforcement of the rights
conferred by Article 19 of the Constitution and all proceedings pending in any court for the enforcement of
the abovementioned rights would remain suspended for the period during which the proclamation of
emergency made under clause (1) of Article 352 of the Constitution on December 3rd, 1971 and on
June 25th, 1975 were in force. Several illegal detentions were thereupon made across
the country, pursuant to which various writ petitions were filed throughout the
country. Nine High Courts gave decision in favour of detunes, holding that that
though Article 21 cannot be enforced, yet the order of detention was open to
challenge on other grounds such as that the order passed was not in compliance
of the Act or was mala fide. Against these orders, many appeals were filed
before the Supreme Court. Disposing of all the appeals together, the Supreme
Court set aside that the decisions of the High Courts which had held the declaration
and the subsequent detentions as illegal and upheld the declaration and
suspension of the said rights.
Arguments
Before the Supreme
Court, the Attorney General pleaded that Article 21 of the Constitution, fundamental right which
provides for security of life and liberty of any person, had been suspended and therefore, the suspension of
that Article meant that the detenu had no remedy even against an illegal detention i.e. all the
remedy to secure life and the personal freedom ended with the suspension of Article 21. The detunes agued
that they had a right to seek remedy under Article 226 (Power of HC to issue Writs) and therefore a
remedy against illegal detention was available to them despite the suspension of Article 21 as the
remedy under Article 226 which provided for enforcing any other legal right, was not suspended by the
Presidential Order.
Judgement
Marking the black day
of Indian legal history, the Supreme Court rejected the arguments of the Respondents and held that Article 21
of the Constitution was the sole repository of right to life and
liberty and therefore, the
suspension of it implied that all the remedies protecting this right under
any other law shall also be suspended.
The Court while construing Article 21 as the sole repository of life and personal liberty denied all available
remedies to the detentes on any ground that any challenge to the detention order for the enforcement of the
right to personal liberty under Article 21 could not be so done on account of the presidential order
suspending it being in force. The majority further held that even the order of detention could not be challenged
even on any other ground, even if the detention order was passed malafide, rendering the detenu
without any remedy even against an illegal detention. Therefore, the Court declared, “in view of the
Presidential Order dated June 27th, 1975 no person has any locus standi to move any writ petition under
Article 226 before a High Court for habeascorpus or any other writ or order or direction to challenge the
legality of an order of detention on the ground that the order is not under or in compliance with the Act or is
illegal or is vitiated by malafides factual or legal or is based on extraneous considerations”, closing its
doors to any sort of relief whatsoever to any person suffering from illegal detention.
In Layman Language
Dubbed as “a scar
on Indian Judiciary”, the judgment exposed the dangers facing the Constitution (read total anarchy) if the
judicial wing was unwilling to stand firm and intolerant to violation of constitutional mandate. However
Justice Khanna, who gave the dissenting judgment, was praised for his integrity of duty to deliver
justice. Later, with the next government came in power, the Constitution was amended whereby it was
provided that Article 21 could not be ever suspended, even in case of emergency. Thus the reoccurrence of
such a situation has been amended by a Constitutional Amendment where the right of life and
personal liberty cannot be suspended in any situation.
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Ajit Singh (II) v. State of Punjab, (1999) 7 SCC 209
Facts in Brief
The Indian
Railways issued a circular on February 28 th, 1997 to the effect that the reserved candidates promoted at roster points
could not claim seniority over the senior general candidates promoted later. This was done
following the law laid down by the Supreme Court - that it was "permissible" to follow that
reserved candidates who get promotion at the roster points would not be entitled to claim seniority at the
promotional level as against senior general candidates who got promoted at a later point of time to the same
level and that "it would be open" to the State to provide that as and when the senior general candidate got
promoted to the level to which the reserved candidate was promoted earlier, the general candidate would
have to be treated as senior to the reserved candidate at the promotional level as well, unless, of
course, the reserved candidate got a further promotion by that time to a higher post. Similarly, the State
of Punjab was proceeding to revise seniority lists and make further promotions of the senior general
candidates who had reached the level to which the reserved candidates had reached earlier.
At that point of time, another
three Judge Bench of the Supreme Court held that the general rule in the Service Rules relating to seniority from the
date of continuous officiation would be attracted even to the roster point promotees as otherwise there
would be discrimination against the reserved candidates. In light of above two contrary decisions, State
was in a quandary what to do and the same was brought before the Supreme Court wherein the issues
inter alia were;
- Could the roster point promotees (reserved category) count their seniority in the promoted category from the date of their continuous officiation vis-Ã -vis the general candidates who were senior to them in the lower category and who were later promoted to the same level?
- Whether the 'catch-up' principles claimed by the general candidates are tenable?
Judgement
The judgment of the
Court can be summarized as follows;
- The roster point promotes (reserved category) could not count their seniority in the promoted category from the date of their continuous officiation in the promoted post vis-Ã -vis the general candidates who were senior to them in the lower category and who were later promoted. On the other hand, the senior general candidate at the lower level, if he reached the promotional level later but before the further promotion of the reserved candidate would have to be treated as senior, at the promotional level, to the reserved candidate even if the reserved candidate was earlier promoted to that level.
- The Apex Court held that decision of Jagdishlal v. State of Haryana (AIR 1997 SC 2366) arrived at an incorrect conclusion because of applying a rule of continuous officiation which was not intended to apply to the reserved candidates promoted at roster points. There was no conflict in the principles laid down in the two judgments of Union of India v. Virpal Singh (1993) 6 SCC 685 and Ajit Singh Januja v. State of Punjab (1996) 2 SCC 215. In Ajit Singh the Court had to consider the validity of such a Circular dated 19.7.69 which positively declared that the "roster points were seniority points. Thus, the decision in Ajit Singh was correct.
- In case any senior general candidate at initial level (suppose L-3) reached next level before the reserved candidate (roster point promote) at next level (i.e. L-2) goes further up to higher level (L-1), then the seniority at next level (i.e. L-2) had to be modified by placing such a general candidate above the roster promote, reflecting their inter se seniority at Level 2. Further promotion to higher level (L-1) must be on the basis of such a modified seniority at L-2, namely, that the senior general candidate of L-3 will remain senior also at L-2 to the reserved candidate, even if the latter had reached L-2 earlier
- After decision in Ajit Singh, it becomes necessary that a reserved candidate who has been promoted to higher level (say level 2) under reservation quota and the general category candidate (senior to reserved candidate at level 3) who was promoted to same level (i.e. level 2) later and for promotion to next level (level 1) the reserved category candidate was promoted to disregard of general category candidate who was promoted to same level (level 1) later, then in such situations it become necessary to review the promotion of the reserved candidate to level 1 and reconsider the same, without causing reversion to the reserved candidate who reached level 1. As and when the senior reserved candidate was later promoted to level 4, the seniority at level 4 was also to be re-fixed on the basis of when the reserved candidate at level 3 would have got his normal promotion, treating him as junior to the senior general candidate at level 3
In Layman Language
After the above
decision, it is clear that are served Category promotes cannot count their
seniority in the promoted category from the date of their continuous
officiation in the promoted post vis-Ã -vis general candidates who were senior
to them in lower category and were later
promoted.
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Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625
Facts in Brief
The respondent
was removed from his post as an employee of the appellant council after the relevant disciplinary authorities
found him guilty of sexually harassing X, a junior female employee. He filed a writ petition before the
High Court challenging his dismissal. A single judge allowed the petition, finding that the respondent’s
dismissal was unjustified on the grounds that he had only tried to molest X and had not actually established
any physical contact with her. The appellant was ordered to be reinstated. This was upheld by a Division
Bench of the High Court. This judgment was challenged by the dismissing organisation.
Judgement
The Supreme Court held
as follows;
1. In the absence of procedural
irregularity, the High Court was wrong to interfere with the findings of fact recorded by the disciplinary
authorities and with the punishment which they had imposed. It is a well-settled principle that, in
exercising the power of judicial review, the court is not concerned with the correctness of findings of
fact which are reasonably supported by evidence, but with the decision-making process itself.
2. Sexual harassment is a form of
sex discrimination projected through direct or implied unwelcome sexual advances, requests for sexual favors
and other verbal or physical conduct of a sexual nature. It is exacerbated when submission to
or rejection of such conduct by the female employee may affect her employment, unreasonably
interfere with her performance at work and create an intimidating or hostile working environment
for her.
3. Each incident of sexual
harassment in the workplace is incompatible with the dignity and honour of women and violates the fundamental rights
to equality, life and liberty. In this case, the Apex court observed;
“ Each incident of sexual
harassment at the place of work, results in violation of the fundamental right
to gender equality and the right to life
and liberty – the two most precious fundamental rights guaranteed by the Constitution of India. The contents of
the fundamental rights guaranteed in our Constitution are of sufficient amplitude to encompass all facets
of gender equality, including prevention of sexual harassment and abuse and the courts are under
a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of
a female at the place of work is incompatible with the dignity and honor of a female and needs to be
eliminated and that there can be no compromise with such violations, admits no debate.”
1. Rejecting outright the stand
taken by the High Court, the Supreme Court held that the respondent’s behaviour did not cease to be
outrageous for want of physical contact and the
observations made by the High Court to the effect that the respondent
did not actually molest X because he did
not establish such contact with her were highly unacceptable.
2. Consequently the Apex Court held that the respondent’s conduct offended against morality, decency and X’s modesty. It constituted an act unbecoming of the good conduct and behaviour expected from a superior employee and undoubtedly amounted to sexual harassment. Therefore, any reduction in punishment was bound to have a demoralizing effect on women employees and is a retrograde step.
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Bachan Singh v. State of Punjab (1982) 3 SCC 24
Facts in Brief
One Bachan Singh
was tried and convicted and sentenced to death under Section 302 of the Indian Penal Code (IPC) for the murder
of Desa Singh, Durga Bai and Veeran Bai. The death penalty imposed on him was
confirmed by the High Court. Appealing by special leave, he (along with other
prisoners) challenged the constitutional validity of the death penalty provided
in the Section and the sentencing
procedure provided in Section 354(3) of the Code of Criminal Procedure, 1973.
Arguments
It was argued by the
Appellant that the imposition of death penalty under Section 302 of IPC, read with Section 354(3) of the Code of
Criminal Procedure was arbitrary and unreasonable because (a) it was cruel and inhuman,
disproportionate and excessive, (b) it was totally unnecessary and did not serve any social purpose or advance any
constitutional value and (c) the discretion conferred on the court to award death penalty was not guided by
any policy or principle laid down by the legislature but was wholly arbitrary. On the other hand, the
same was defended by the State that the question of constitutional validity of
the death penalty had stood concluded by the decision of a Constitution Bench
of five Judges in Jagmohan Singh v. State of U.P. ( AIR 1973 SC 947) and it
could not therefore be allowed to be
re-agitated. It was also submitted that (a) death penalty was neither cruel or
inhuman, neither disproportionate nor
excessive, (b) it did serve a social purpose inasmuch as it fulfils two
penological goals namely, denunciation
by the community and deterrence and (c) that the judicial discretion in awarding death penalty was not arbitrary and
the court could always evolve standards or norms for the purpose of guiding the exercise of its
discretion in this punitive area.
Judgement
The Apex Court
dismissed the challenge to the constitutionality of Section 302 of IPC in so
far as it provided for the death sentence and also the challenge to the
constitutionality of Section 354(3) of the Code of Criminal Procedure. The
Court propounded the principle of “rarest of rare cases” in awarding of the
death penalty wherein it was stated by the Court that a real and abiding
concern for the dignity of human life postulated a resistance to taking a life
through law's instrumentality. However, that ought not to be done save in the
rarest of rare cases when the alternative option is unquestionably foreclosed.
Therefore the constitutionality of the provisions imposing death penalty was
upheld
In Layman Language
The apex court
laid down the doctrine of “rarest of rare case” for the purposes of awarding of death penalty. Thus the case laid
down a strong foundation for sorting out an extraordinary case with prevailing special circumstances,
whereupon death penalty be imposed on the accused, his case being a rarest of rare one. Thus a
significant limitation on the arbitrary imposition death penalty was solidifying in the form of the “rarest of
rare” principle which has now become the yardstick for awarding death penalty by Indian Judiciary.
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BALCO Employees Union v. Union of India , AIR 2002 SC 350
Facts in Brief
During the process
of the ongoing economic reforms, the Public Sector Disinvestment Commission advised the Government of India
that BALCO, one of the Government Companies, needed to be privatized by transferring 40% of its
shares immediately and to bring down its holding to 26% within a period of two years, with the aim to fully
disinvest it stake in favour of investors at the appropriate time. Later the recommendation was revised
such that 51% of the government’s stake in BALCO’s would be transferred along with a transfer of
management. The same was approved by the Cabinet Committee on Disinvestment.
Consequently, advertisements were
issued and a detailed process followed, resulting into the selection of M/S Sterling Co. as the Strategic Partner to
whom the 51% stake of the Government would be transferred for Rs. 551 crores. Discussions on the same
also took place in the Rajya Sabha and the Lok Sabha wherein motion to disapprove the proposed
disinvestment failed. Thereupon the said transfer of stake was challenged before the Supreme Court and other
High Courts. Clubbing the claims, the Court framed the following issues;
- Whether Executive Policies are reviewable by the Judiciary?
- Whether the decision to disinvest BALCO is constitutionally valid?
Arguments
Those challenging the
disinvestment argued that (a) by reason of disinvestment the workmen had lost their right and protection
under Articles 14 and 16 of the Constitution and as this was an adverse civil consequence, they had a
right to be heard before and during the process of disinvestment and (b) normally in cases of this nature 5%
of the shares were disinvested in favour of the employees which was not so done in the present case.
Thus the disinvestment was unsustainable. To this the counter argument was, (a) public sector companies
were constantly sinking into an increasing difficulties and it
was in public interest to disinvest
them, and (b) the wisdom and advisability of economic policies of Government are not amenable to judicial
review.
JUDGMENT:- The Apex Court held that
(a) it could not look into the executive wisdom which enacts a policy, specially matters regarding economic
management and (b) the legal challenges made to the disinvestment of BALCO were not valid and
consequently, the decision to disinvest BALCO is constitutionally valid. The reason for the
said decision, the Apex Court gave as follows;
∙ Non-government employees working
in a company cannot claim a superior right than a government servant and impugn its change of
status in terms of social security measures and
protection of their employment and rights.
∙ In taking of a policy decision in
economic matters at length, the principles of natural justice have no role to play which would require a hearing
of the workers prior to decision making.
∙ When the government chooses to run an industry by forming a company
and it becomes its shareholder then
under the provisions of the Companies Act as a shareholder, it would have
a right to transfer its shares.
In Layman Language
In the course of
delivering this judgment, the Court came down heavily on frivolous Public Interest Litigations (PILs).
In fact this case has set the trend for in lemine dismissal of PILs if the petitioners are not able to
establish that a substantial public interest is involved in the petitions. The Court also declared that
public interest is the paramount consideration in national governance and therefore if in the public
interest the Government thought it fit to take over a sick company to preserve the productive unit and
the jobs of those employed therein, the government can do so reducing the continuing drain on its
limited resources. This decision is in tune with the growing recognition of the efficiencies of market
mechanism .
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Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802
Facts in Brief
The Petitioner wa
s an organization dedicated to the cause of release of bonded laborers. It made a survey of stone quarries
in Faridabad District near Delhi and found that there were a large number of labourers from Maharashtra ,
Madhya Pradesh, Uttar Pradesh and Rajasthan who were working in these stone quarries under
"inhuman and intolerable conditions" and many of whom were bonded labourers. The petitioner therefore
addressed a letter to the Supreme Court stating the circumstances and filed a Public Interest
Litigation alleging that hundreds of workmen were living in bondage and under inhuman conditions. The
Court appointed a Commissioner to look into the matter in 3-4 days and to submit a report to the
Court.
Judgement
Upon a report given by
the Commissioner entailing violations of various constitutional and human rights of the poor labourers, the Apex
Court declaring that Article 21 of the Constitution assures right to live with human dignity free from
exploitation held that State was under a constitutional obligation to ensure that there is no
violation of fundamental rights of any person particularly weaker sections of society. It held that State is
bound to assure observance of social welfare and labour laws enacted for securing workmen a basic human
dignity. Thereupon the Apex Court gave a set of 21 guidelines to Central Government as well as
the State Governments to check such gross abuses of citizen’s rights in future. The Court also appointed a
Joint Secretary in the Ministry of Labour, Government of India as a Commissioner for the purpose of carrying
out the job to see that directions are fulfilled.
In Layman Language
The concern of the
Court in securing the release and rehabilitation of the bonded laborers in the present case set the trend
in the Court of ensuring that no such violation of the fundamental and human rights of the citizens
re-occur. It is clear now that the Courts in India will not allow any one to be bondage of anyone on
account of grave poverty or ill. All citizens have an equal right of survival and it is the duty of the state
to ensure the same.
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Budhan Choudhary v. State of Bihar, AIR 1955 SC 191
Facts in Brief
The present case involved a challenge to the constitutional validity of Section 30 of the Code of Criminal Procedure, 1898 (Cr.P.C.). It provided that in certain states where there were Deputy Commissioners or Assistant Commissioners, the State Government may, invest the District Magistrate or any Magistrate of the first class, with power to try as a Magistrate all offences not punishable with death. Under Section 34, he can try a case and sentence the convict, except a sentence of death or of transportation for a term exceeding seven years or imprisonment for a term exceeding seven years. As regards the appellant, a criminal case was against him and was referred to the Deputy Commissioner by the Sub Divisional Magistrate. The Commissioner, in turn transferred the file to a Magistrate with powers under the said Section 30 of Cr.P.C. wherein a sentence of 5 years rigorous imprisonment was imposed upon him under Section 366 of Indian Penal Code. Thereupon the Appellant challenged the said section which was upheld by the High Court. Thus, the matter reached the Supreme Court for final determination wherein the issue was whether Section 30 of Cr.P.C. was violative of Article 14 of the Constitution which guaranteed right to equality before law and equal protection of law to all.
Arguments
It was argued before
the Court that (a) a Magistrate under Section 30 is enjoined by to try the case
before him as a Magistrate and accordingly he shall follow the warrant
procedure which is different from the procedure followed by a Court of Session.
In a Court of Session, the accused was entitled to the benefit of commitment
proceedings before a Magistrate and then a trial before the Sessions Judge with
the aid of the jury or assessors. But this was denied under Section 30 and thus
it was violative of Article 14 as there
was an infraction of the fundamental right of equality in such cases, and (b) the provision was liable to be abused as
it discriminated between persons accused of offences of the same kind, as the police had the discretion
of sending a person accused of an offence under a particular Section to a Section 30 Magistrate or to send
another person accused of the same offence under the same section to a Magistrate who could commit the
accused to the Court of Session.
Judgement
The Apex Court held
that Section 30 of the Cr. P.C. did not violate the right to equality
guaranteed by Article 14 of the Constitution of India as,
∙ Article 14 did not prohibit a
reasonable classification. The only requirement is that the differentia on the
basis of which the classification was made must be intelligible and should have
a reasonable nexus with the object sought to be achieved by the Statute. The
Court also held that a classification could be based on geographical or
territorial considerations.
∙ The risk of being tried by a
Section 30 Magistrate fell alike upon all persons committing such an offence.
Therefore, there is no discrimination in the Section itself.
∙ The discretion to try the offence
under Section 30 or otherwise rested with the Magistrate and not with the
police as it was upon the Magistrate to commit the accused to the Court of
Session, instead of disposing of the case himself if he thought that the ends
of justice will be met.
∙ In case of any intentional or
purposeful discrimination against the appellants by the Sub Divisional Magistrate
or the District Magistrate or the Section 30 Magistrate, the law provided for
revision by superior Courts of orders passed by the Subordinate Courts.
In Layman Language
The importance of
this judgment lies in the fact that it establishes that even Judiciary comes
within the definition of ‘State’, as under Article 12 of the Constitution of
India, for the purposes of enforcing Fundamental Rights and in case of any
infringement on them by the judiciary, the superior courts are entitled to
scrutinize such actions.
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Chief Forest Conservator (Wild Life) v. Nisar Khan, AIR 2003 SC 1867
Facts in Brief
In the initial
proceedings the respondents had approached the High Court of Allahabad through
a writ petition inter alia for issuance of a writ in the nature of mandamus
directing the appellants to grant a license for carrying on business as a
dealer in birds which were bred in captivity.
The same was allowed by the High Court. The same was challenged before
the Supreme Court.
Arguments
The contention of the respondent, as also before the High Court was that he had been dealing in birds of several varieties specified in the Schedule IV appended to the Wild Life (Protection) Act 1972, wherefore he had applied for an had been granted a license. But his application for renewal of the said license had been rejected. Since there had been no change in the fact situation, he was entitled to be granted the extension. However, the appellants argued that having regard to the Amendment made in Section 9 of the said Act whereby 'hunting' included 'trapping' of birds (specified in Schedule IV of the Act), no license for dealing in them could be lawfully granted. The appellant also stated that although dealing in birds in captivity was as such is not prohibited; no license could be granted in terms of Section 44 of the Act if by reason thereof the licensee would violate any of the provisions of the Act.
Judgement
The Apex Court, while
setting aside the judgment of the High Court, observed that when hunting of
birds was prohibited, there remained no doubt that no person could be granted
license to deal in birds in captivity which were procured for hunting, a term
which also included trapping. The Court distinguishing the two situations
observed, “it is one thing to say that by reason of breeding of birds in
captivity their population increases, but it is another thing to say that birds
are trapped before they are made captive so as to enable the license to deal in
them.” Thus, the Court came to a conclusion that if a finding of the fact
having regard to the past transactions of the licensee showed that the purpose
of breeding of captive birds was necessarily for hunting, it justified the
refusal of a license.
In Layman Language
Through this
judgment the Court declared that ‘trapping’ of birds is an offence. If any one
does it, it is against Wild Life (Protection) Act, 1972 and he can be sent to
jail. Also, before granting license for dealing in birds, the licensing authority
will have regard to the source and manner in
which supplies are made, the
implications of the license on hunting and trade and the past transactions of the
licensee
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D.K. Basu v. State of West Bengal, AIR 1997 SC 3017
Facts in Brief
A letter was
written by the Chief Executive Chairman of Legal Aid Services, West Bengal to
the Chief Justice of India referring to certain newspaper reports wherein
mistreatment of prisoners by the police was alleged. This letter was treated as
a writ petition and notice was issued to all the State governments seeking
their views on the same. Thereupon, the Court gave various guidelines to be
observed by the police while securing arrest of persons.
Judgement
The Apex Court detailed
eleven measures to be observed by the police to secure arrest of accused. They
can be summarised as,
∙ Arresting or interrogating
official have to bear identification badge.
∙ There has to be a preparation of
memo of arrest in the presence of a family member or local person.
∙ Arrestee has a right to have his
relative or friend informed of his arrest as soon as practicable. ∙ Details of arrest are to be informed within
8-12 hours to his relative or friend in case the arrestee lives outside the
district or town of arrest.
∙ The arrestee must be told of his
rights to have someone informed soon after the arrest. ∙ The details of arrest and transmission of
information to the next friend or relative have to be entered in the police
diary.
∙ In case arrestee requests for
examination of bodily injuries at the time of arrest, the request has to be
complied with.
∙ The arrestee has to be subjected
to medical examination by a trained doctor every 48 hours during custodial
detention.
∙ The arrestee has to be permitted
to meet his lawyer during investigation which is not necessary for throughout
the interrogation.
∙ Copies of all documents
seized/procured have to be submitted to magistrate. ∙ Police control room district or the State
Headquarter has to notify in the notice board about the fact of arrest within
12 hours from the moment of arrest.
In Layman Language
This judgment of
the Supreme Court has given sufficient rights and remedies to have a dignified
existence at the time of being imprisoned. The abuse of powers by the police at
the time of securing imprisonment has been significantly curtailed by this
decision and the Court has in fact also directed that any violation of these
guidelines shall be considered as contempt of court and shall be dealt with accordingly.
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Daniel Latifi v. Union of India, AIR 2001 SC 3958
Facts in Brief
In this case, the
constitutional validity of the Muslim Women (Protection of Rights on Divorce)
Act, 1986 was challenged before the Supreme Court. The Act was passed to
appease a particular section of the society and with the intention of making
the decision in case of Mohd. Ahmed Khan v. Shah Bano Begum ineffective.
In the Shahbano’s case, the husband
had appealed against the judgment of the Madhya Pradesh High Court which had
directed him to pay to his divorced wife Rs. 179/- per month, enhancing the
paltry sum of Rs. 25 per month originally granted by the Magistrate. The
parties had been married for 43 years before the ill and elderly wife had been
thrown out of her husband's residence. For about two years the husband paid
maintenance to his wife at the rate of Rs. 200/- per month. When these payments
ceased, she petitioned under Section 125 of the Code of Criminal Procedure
(Cr.P.C.). The husband immediately dissolved the marriage by pronouncing a
triple talaq. He paid Rs.3000/- as deferred mahr and a further sum to cover
arrears of maintenance and maintenance for the iddat period and he sought
thereafter to have the petition dismissed on the ground that she had received
the amount due to her on divorce under the Muslim law applicable to the
parties. The important feature of the case was that wife had managed the
matrimonial home for more than 40 years and had born and reared five children
and was incapable of taking up any career or independently supporting herself
at that late state of her life - remarriage was impossibility in that case. The
husband, a successful Advocate with an approximate income of Rs. 5,000/- per
month provided Rs. 200/- per month to the divorced wife, who had shared his
life for half a century and mothered his five children and was in desperate
need of money to survive.
Arguments
The petitioner argued,
(a) that the rationale of Section 125 Cr.P.C. was to offset or meet a situation
wherein a divorced wife was likely to be led into destitution or vagrancy. It
was urged that Section 125 Cr.P.C. was enacted to prevent such a situation in
furtherance of the concept of social justice embodied in Article 21 of the
Constitution. (b) That the object of Section 125 Cr.P.C. being to avoid
vagrancy, the remedy thereunder
could not be denied to a Muslim woman otherwise it would amount to violation of
not only equality before law but also equal protection of laws (Article 14) and
inherent infringement of Article 21 as well as basic human values. (c) That the
Act was un-Islamic, unconstitutional and had the potential of suffocating the Muslim
women while also undermining the secular character, which was the basic feature
of the Constitution. And thus, there was no rhyme or reason to deprive the
Muslim women from the applicability of the provisions of Section 125
Cr.P.C.
Defending the validity of the
enactment, it was argued on behalf of the respondents that (a) if the legislature,
as a matter of policy, wanted to apply Section 125 Cr.P.C. to Muslims, it also
meant that the same legislature could, by necessary implication, withdraw such
an application of the Act and make some other provision in that regard. (b)
Parliament could amend Section 125 Cr.P.C. so as to exclude it application and
apply personal law instead. (c) That the policy of Section 125 Cr.P.C. was not
to create a right of maintenance dehors the personal law and therefore could
not stand in the way of the Act.
Judgement
holding the validity of
the Act, the Supreme Court held as follows;
- A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act,
- Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period,
- A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.
- the provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.
In Layman Language
It is unfortunate
to note that the Court did not strike down the Act which purports to exclude
Muslim women in particular from the beneficial treatment of Section 125. The
legislature to appease the Muslim gentry may have passed the Act on political
consideration but that same has rendered an indirect classification of people
of the basis of religion, which is against the fundamental aspect of Secularism
which we have adopted in our Constitution.
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