Shyam Narayan Chouksey vs Union Of India on 9 January, 2018

Court: Supreme Court of India

Case No: Writ Petition (Civil) No.855 Of 2016

Petitioner: Shyam Narayan Chouksey

Respondent: Union of India & Others

Date of Judgement: 9 January, 2018

Bench: Justice D. Misra, Justice D.Y. Chandrachud, Justice A

Khanwilkar

Facts

“ In this case, the petitioner moved to the Supreme Court under Article 32 of the constitution
for the issue of writ of mandamus or any other writ that deems fit by the court commanding
the Union of India to take any additional steps required for inculcating in public a proper
sense of respect towards the National Anthem. The petitioner Shyam Narayan Chouksey
believes that the means by which national anthem is disrespected and what constitutes abuse
and disrespect to the symbols of the nation such as National Flag, National Anthem and
Constitution of India is still not clear to the public at large. ”

Issues

 “ The case Shyam Narayan Chouksey vs Union of India & Others deals with what
constitutes respect and disrespect to the National Anthem i.e. what needs to be done
while the National Anthem is being sung or played? ”

 “ Are the submissions made by learned Attorney General of India Mr. Mukul Rohtagi
also valid for disabled people of India? As disabled people faced difficulties due to
the submissions made by the learned Attorney General of India. ”

 National Anthem and National Flag as the symbol of secular nation.

Laws Applied

 “ The Prevention of Insults to National Honour Act 1971 section 3 only deals with
singing, playing of National Anthem but does not deal fully with how respect should
be shown. Hence measures need to be described by the court. ”

 “ Article 51 A of the Constitution states every citizen of India should respect the
constitution and its National Flag, Anthem. ”

 Order passed by the court should be recalled and changes ought to be made.
“ ”

Analysis

“ The court judged a very important case on 9th January, 2018 involving a plethora of feelings,
emotions and patriotism. The case is important because it dealt with the issue of National
Anthem and this case was dealt with great interpretations which was necessary as National
Anthem is a national symbol representing the nation. ”

“ The Judgment of this case dated 9th January, 2018 was delivered by Learned CJI Dipak
Mishra. The Hon’ble Supreme Court while relying upon Union of India v. Naveen Jindal,
stated that National Anthem and National Flag cannot be disrespected and every citizen is
obliged to show respect, however the cinema halls may not be the suitable place as people
come here for unobstructed entertainment. The court further held that symbols representing
the nation deserve a significant amount of respect as they serve as the elan vital of the Nation
and promote a sense of unity and integrity among the public. The Hon’ble Supreme Court of
India concluded its judgment by stating that the playing of national anthems is not mandatory
and shall be left to the discretion of the concerned persons. However, whenever the National
Anthem is played or sung, people are bound to show respect as required under executive
orders. ”

“ The case was judged finely while taking care of each minute details regarding what
constitutes disrespect towards national anthem. The case was judged on the basis of merit,
facts and evidences supported which eventually led to the increase in the intensity of the case.
The issues in this case were mainly what constitute disrespect towards national symbols as it
is a very ambiguous topic and the need of national anthems being played in cinema halls
before the movie. ”
“ The case was judged appropriately and it poses a serious question on whether the national
symbols are respected the way they should be or the essence of national symbols is just not
clear to the public and taken for granted. ”

Joseph Shine vs Union Of India on 27 September, 2018

Court: Supreme Court of India

Case No: Writ Petition (Criminal) No. 194 Of 2017

Petitioner: Joseph Shine

Respondent: Union of India

Date of Judgement: 27September,2018

Bench: Justice D. Misra, Justice D.Y. Chandrachud, Justice A

Khanwilkar, Justice Indu Malhotra and Justice R.F. Nariman.

Facts

“ In February 2016, the Hon’ble President of India had called for a thorough revision of the
Indian Penal Code. Archaic provisions of the Code were sought to be removed and “The IPC
has undergone very few changes in the last one hundred fifty-five years. Very few crimes
have been added to the initial list of crimes and declared punishable. Even now, there are
offences in the Code which were enacted by the British to meet their colonial needs. Yet,
there are many new offences which have to be properly defined and incorporated in the
Code.” In view of the same, it is submitted that Section 497 is also an outdated provision, in
addition to being illegal and violative of fundamental rights. ”

“ In October 2017, Joseph Shine, a non-resident Keralite, filed public interest litigation under
Art 32 of the Constitution. The petition challenged the constitutionality of the offence of
adultery under Sec 497 of IPC read with Sec 198(2) of the CrPC. ”

Issues

 “ Whether Sec 497 of the Indian Penal Code, 1860 is unconstitutional being unjust,
illegal, arbitrary and violative of fundamental rights.
  Whether Sec 198(2) of the Code of Criminal Procedure, 1973 is unconstitutional
being unjust, illegal and violative of fundamental rights. ”

Laws Applied

 “ The validity of the section was challenged on two grounds that is first, Section 497 is
violative of Article21 (2) that is, Right to Privacy and Second, Section 497 violates
Article 14 and Article 15. ”

 “ In the present case, Supreme Court laid down certain guidelines, regarding the
provisions of Adultery. The court held that Section 497 of the IPC is violative of
Article 14, Article 15, and Article 21 of the Constitution of India. The court
interpreted that it is very important to understand the spirit of the relationship. The
obligation of legislation which comes into role is to implement proper interpretation
of every enactment. ”

 “ The bench unanimously agreed that the section is an archaic and paternalistic law,
which infringes upon a woman's autonomy and dignity. The Bench also read down
Section 198 of the Code of Criminal Procedure Code (CrPC). 198(2) CrPC specifies
that only a husband can file charges for offences under Section 497. ”

Analysis

“ The judgment has put forward a good initiative as it struck down Sec 497 IPC and Sec 198(2)
of CrPC as both the sections are based on discriminative classification against women. The
provision is being discriminative in two ways, firstly it does not give woman the right to
prosecute an adulterous husband and secondly it does not punish a woman in adultery not
even as an ‘abettor’. ”

Moreover this judgment has also put into practice the idea of transformative justice.

“ However the judgment has lead to some kind of anomaly in the realm of adultery law as it
makes the practice of adultery non punishable. It is criticized that the judgment takes away
remedies available to any spouse when his or her partner indulges in adultery.

And the judgment is also silent as to its effect on the social institutions like marriage and also
with regard to children born out of such relationship or involved in any other manner in
similar situations. ”