CASE NO: 1

GOVT MUST READ „EXTREMELY IMPORTANT‟ DISSENT ORDER IN

SABARIMALA VERDICT: JUSTICE NARIMAN

OBJECTIVE:

The government must read the “extremely important dissent” verdict in the 3:2
majority judgment pronounced by the Supreme Court in the Sabarimala case,
Justice R.F. Nariman.

INTRODUCTION:

Justice Nariman had penned the dissent order on behalf of himself and Justice D.Y.
Chandrachud in judgment.

“Please tell your government to read the dissent judgment delivered in the
Sabarimala case yesterday, which is extremely important... Inform your
authority and the government to read it,” he told Solicitor General Tushar
Mehta.

FACTS:

Justices Nariman and Chandrachud, who were a part of the five-judge Constitution
bench in the Sabarimala case, on Thursday dissented from the majority verdict and
dismissed the plea seeking review of the apex court’s earlier judgment allowing
entry of women of all ages to the Sabairmala temple.

He made these comments to Mr. Mehta when the court was hearing an appeal filed
by the Enforcement Directorate challenging the Delhi High Court verdict granting
bail to Karnataka Congress leader D K Shivakumar in a money laundering case.

THE SC DISMISSED THE ED PLEA.

Terming the denial of entry to “unarmed women” into the Sabarimala temple
as a “sad spectacle”, the minority verdict by the Supreme Court had held that
enforcement of its 2018 order is “non-negotiable” and no person or authority
can flout it.
It had said the Constitution places a “non-negotiable obligation” on authorities to
enforce the judgements as it was necessary to preserve rule of law and directed
strict compliance with its September 2018 decision allowing girls and women of
all ages to enter the hill-top shrine in Kerala.

“If those whose duty it is to comply were to have discretion on whether or not to
abide by a decision of the court, the rule of law would be set at naught.
Compliance is not a matter of option. If it were to be so, the authority of the
court could be diluted at the option of those who are bound to comply with its
verdicts,” it had said.

“Today, it is no longer open to any person or authority to openly flout a

Supreme Court judgment or order, given the constitutional scheme,” the
verdict had said.

However, the majority verdict, written by Chief Justice Ranjan Gogoi for himself
and justices A M Khanwilkar and Indu Malhotra, decided to refer to a larger 7-
judge bench the pleas seeking review of the 2018 judgment allowing women and
girls of all ages to enter the temple which is all set to open on November 17.

As the majority verdict kept the review pleas pending for a 7-judge bench and did
not stay its September 28, 2018 majority judgment, girls and women of all age
groups will be entitled to undertake the pilgrimage to the shrine.

Justice Nariman had said it was restating constitutional duties “in the light of the
sad spectacle of unarmed women between the ages of 10 and 50 being
thwarted in the exercise of their fundamental right of worship at the temple“.

It further said that whoever does not act in compliance of apex court judgements,
“does so at his peril“.

It had also directed the Kerala government to comply with the September 2018
decision of the apex court by widely publicising through television and
newspapers.

It had further directed the state government to take steps to secure the
confidence of the community in order to ensure the fulfilment of constitutional
values.
COCLUSION:

Justices Nariman and Chandrachud had also disagreed with the majority view to
refer to a larger bench the review and fresh pleas challenging the September 2018
decision of the apex court as well as other matters pertaining to discrimination
faced by women of other religions.

It had said this was a ground that “must be rejected”, as “there is no error
apparent” and the point, which was argued extensively before the earlier
Constitution bench, was being reargued in review.

It had also rejected the “emotive” argument that women being kept out of
Sabarimala as the deity was a „Naisthik Brahmachari‟ (perennial celibate),
who would be disturbed by the presence of women between the ages of 10 and
50, as he has undertaken a vow of celibacy, saying the point was being re-
argued.

RELATED ARTICLES:

Article 15 of the Constitution of India 1949

Prohibition of discrimination on grounds of religion, race, caste, sex or place of

birth
(1) The State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, and place of birth or any of them

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or
any of them, be subject to any disability, liability, restriction or condition with
regard to

(a) Access to shops, public restaurants, hotels and palaces of public entertainment;
or

(b) The use of wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated to the use of the
general public
(3) Nothing in this article shall prevent the State from making any special
provision for women and children

(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from
making any special provision for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes and the
Scheduled Tribes.

CASE NO: 2

SHREYA SINGHAL V. UNION OF INDIA

CASE SUMMARY AND OUTCOME

The Supreme Court of India invalidated Section 66A of the Information

Technology Act of 2000 in its entirety. The Petitioners argued that Section 66A
was unconstitutionally vague and its intended protection against annoyance,
inconvenience, danger, obstruction, insult, injury, criminal intimidation, or
ill-will were beyond the scope of permissible restrictions under Article 19(2) of
the Indian Constitution. The Court agreed that the prohibition against the
dissemination of information by means of a computer resource or a communication
device intended to cause annoyance; inconvenience or insult did not fall within any
reasonable exceptions to the exercise of the right to freedom of expression. It
further found that because the provision failed to define terms, such as
inconvenience or annoyance, “a very large amount of protected and innocent
speech” could be curtailed and hence its sweep was overly broad and vague.

FACTS

Police arrested two women for posting allegedly offensive and objectionable
comments on Facebook about the propriety of shutting down the city of Mumbai
after the death of a political leader. The police made the arrests under Section
66A of the Information Technology Act of 2000 (ITA), which punishes any
person who sends through a computer resource or communication device any
information that is grossly offensive, or with the knowledge of its falsity, the
information is transmitted for the purpose of causing annoyance, inconvenience,
danger, insult, injury, hatred, or ill will.

Although the police later released the women and dismissed their prosecution, the
incident invoked substantial media attention and criticism. The women then filed
a petition, challenging the constitutional validity of Section 66A on the ground
that it violates the right to freedom of expression.

The Supreme Court of India initially issued an interim measure in Singhal v.

Union of India, (2013) 12 S.C.C. 73, prohibiting any arrest pursuant to Section
66A unless such arrest is approved by senior police officers. In the case in hand,
the Court addressed the constitutionality of the provision.

DECISION OVERVIEW

Justices Chelameswar and Nariman delivered the opinion of the Supreme Court of
India.

The main issue was whether Section 66A of ITA violated the right to freedom
of expression guaranteed under Article 19(1) (a) of the Constitution of India.
As an exception to the right, Article 19(2) permits the government to impose
“reasonable restrictions. in the interests of the sovereignty and integrity of
India, the security of the State, friendly relations with foreign States, public
order, decency or morality or in relation to contempt of court, defamation or
incitement to an offense.”

The Petitioners argued that Section 66A was unconstitutional because its intended
protection against annoyance, inconvenience, danger, obstruction, insult, injury,
criminal intimidation, or ill-will falls outside the purview of Article 19(2). They
also argued that the law was unconstitutionally vague as it fails to specifically
define its prohibitions. In addition, they contended that the law has a “chilling
effect” on the right to freedom of expression.

The government, on the other hand, argued that the legislature is in the best
position to fulfill the needs of people and courts may interfere with legislative
process only when “a statute is clearly violative of the rights conferred on the
citizen under Part-III of the Constitution.” The government contended that
mere presence of abuse of a provision may not be a ground to declare the provision
as unconstitutional. Also, the government was of the opinion that loose language of
the law could not be a ground for invalidity because the law is concerned with
novel methods of disturbing people’s rights through internet. According to the
government, vagueness cannot not a ground to declare a statute
unconstitutional “if the statute is otherwise legislatively competent and non-
arbitrary.”

The Court first discussed three fundamental concepts in understanding the

freedom of expression: discussion, advocacy, and incitement. According to the
Court, “[m]ere discussion or even advocacy of a particular cause howsoever
unpopular is at the heart” of the right. And, the law may curtail the freedom only
when a discussion or advocacy amounts to incitement.

As applied to the case in hand, the Court found that Section 66A is capable of
limiting all forms of internet communications as it makes no distinction “between
mere discussion or advocacy of a particular point of view, which may be annoying
or inconvenient or grossly offensive to some and incitement by which such words
lead to an imminent causal connection with public disorder, security of State etc.”

The Court further held that the law fails to establish a clear proximate relation to
the protection of public order. According to the Court, the commission of an
offense under Section 66A is complete by sending a message for the purpose of
causing annoyance or insult. As a result, the law does not make distinction between
mass dissemination and dissemination to only one person without requiring the
message to have a clear tendency of disrupting public order.

As to whether Section 66A was a valid attempt to protect individuals from

defamatory statements through online communications, the Court noted that the
main ingredient of defamation is “injury to reputation.” It held that the law does
not concern this objective because it also condemns offensive statements that may
annoy or be inconvenient to an individual without affecting his reputation.

The Court also held that the government failed to show that the law intends to
prevent communications that incite the commission of an offense because “the
mere causing of annoyance, inconvenience, danger etc., or being grossly
offensive or having a menacing character are not offences under the Penal
Code at all.”
As to petitioners’ challenge of vagueness, the Court followed the U.S. judicial
precedent, which holds that “where no reasonable standards are laid down to define
guilt in a Section which creates an offense, and where no clear guidance is given to
either law abiding citizens or to authorities and courts, a Section which creates an
offense and which is vague must be struck down as being arbitrary and
unreasonable.” The Court found that Section 66A leaves many terms open-ended
and undefined, therefore making the statute void for vagueness.

The Court also addressed whether Section 66A is capable of imposing chilling
effect on the right to freedom of expression. It held that because the provision fails
to define terms, such as inconvenience or annoyance, “a very large amount of
protected and innocent speech” could be curtailed.

The Court also noted the intelligible difference between information transmitted
through internet and other forms of speech, which permits the government to create
separate offenses related to online communications. Accordingly, the Court
rejected petitioners‟ argument that Section 66A was in violation of Article 14
of the Constitution against discrimination.

The Court declined to address the Petitioners’ challenge of procedural

unreasonableness since the law was already declared unconstitutional on
substantive grounds. It also found Section 118(d) of the Kerala Police Act to be
unconstitutional as applied to Section 66A.

Based on the forgoing reasons, the Court invalidated Section 66A of ITA in its
entirety as it violated the right to freedom of expression guaranteed under
Article 19(1) (a) of the Constitution of India.

RELATED ARTICLES:

Article 19 of the Constitution of India 1949:

Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right

(a) To freedom of speech and expression;

(b) To assemble peaceably and without arms;

(c) To form associations or unions;

(d) To move freely throughout the territory of India;

(e) To reside and settle in any part of the territory of India; and

(f) Omitted

(g) To practice any profession, or to carry on any occupation, trade or business

(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing
law, or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said sub clause
in the interests of the sovereignty and integrity of India, the security of the State,
friendly relations with foreign States, public order, decency or morality or in
relation to contempt of court, defamation or incitement to an offence.
Article 14 of the Constitution of India 1949
Equality before law The State shall not deny to any person equality before the law
or the equal protection of the laws within the territory of India Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth

CASE NO: 3

SHAYARA BANO V. UNION OF INDIA

OBJECTIVE:

In Shayara Bano and others v. Union of India, Shayara Bano was married to
Rizwan Ahmed for 15 years. In 2016, he divorced her through instantaneous triple
talaq ( talaq-e-biddat ). She files a writ petition in the Supreme Court asking it to
hold 3 practices:

Talaq-e-biddat

Polygamy
Nikah halala

Unconstitutional as they violate Article 14, 15, 21, 25 of the constitution.

FACTS:

Talaq e biddat is a practice which gives a man the right to divorce to his wife by
uttering talaq three times in one sitting without his wife’s consent. Nikah halala is a
practice where a divorce woman who wants to remarry her husband would have to
marry, and obtain divorce, from the second husband before she goes back to her
first husband. And polygamy is a practice which allows Muslim men’s to have
more than one wife.

On 16th of February 2017, the Supreme Court asked Shayara Bano, the Union of
India ,various women’s rights bodies, and all India Muslim personal law board to
give written submission on the issue of talaq-e-biddat, nikah halala and polygamy.
The Union of India and the women’s right organisation like Bebaak collective and
Bhartiya Muslim Mahila Andolan supported the Ms Bano’s plea that these
practices are unconstitutional. The AIMPLB has argued that an uncodified Muslim
personal law is not subject to constitutional judicial review and that these are
essential practices of the Islamic religion and protected under article 25 of the
constitution.

After accepting the Shayara Bano’s petition, the Apex court formed a five judge
constitutional bench on 30th March 2017. The first hearing was on 11th May 2017.
On 22nd of August 2017, the five judge bench pronounced its decision in the triple
talaq case declaring that the practice was unconstitutional by a 3:2 majority.

ISSUES IN SHAYARA BANO V. UNION OF INDIA

Whether the practice of talaq e biddat (specifically instantaneous triple talaq / an

essential practice of Islam).

Whether the practice of triple talaq violates any fundamental rights.

IMPORTANT ARGUMENTS:

ARGUMENTS OF SHAYARA BANO (PETITIONER) :-

In Shayara Bano v. Union of India, Mr Amit Chadha. Senior advocate representing
Shayara Bano began by arguing that triple talaq is not a form of divorce recognised
by the Muslim personal law (shariat) application act, 1937. He pointed out that
several high courts and supreme court decision have restricted the unilateral
tar of Muslim men to divorce women and criticize the practice of triple talaq
as it does not have Quranic sanction. Moreover, these judgements affirm that the
Quran permits divorce for reasonable cause and if preceded attempt at
reconciliation. He urged the court to strike down triple talaq as allowing an un-
codified power to Muslim men to divorce violate Article 14 and 15 of the
constitution.

He concluded by suggesting that if triple talaq is struck down, the law of divorce
for Muslims would be the dissolution of Muslim marriage act, 1939 that could
apply equally the entire Muslim community, irrespective of gender.

ARGUMENTS BY RESPONDENT:-

In Shayara Bano v. Union of India, Mr Kapil sibal first clarify that the shariat act
1937 does not codify substansive Muslim personal law but restate that the Sharia
shall apply as a rule of decision to Muslim overriding any custom or usage to the
contrary. He asserted that object of the act was to overcome customs that
discriminated against women in matter of inheritance. Moreover, since marriage is
private contract and Islamic law, no state legislation can change it.

Mr sibal refers to the constituent assembly debates to argue that the definition of
law under article 13 does not include personal laws. He pointed out that the
assembly rejected amendment that sought to include “and anything else” to
the definition of law it considered and rejected the inclusion of such law under
article 13. He suggested that the explicit mention of personal law in the
concurrent list and its absence in article 13 demonstrate the constitution
maker‟s intention to exclude personal law.

You can turn to the right to freedom of religious practice under article 25(2).
He argued that the constitution empowers Parliament to make social reform law on
secular activities associated with religious practices. Hence, only after Parliament
pass the law on the subject can a court assess its validity. Mr. Sibal suggested that
collection of money in a temple an example of such secular activity.
Mr. Sibal concluded arguments by claiming that Muslim women are not
discriminated against triple talaq rule and may even benefit from immediate relief
from bad marriages. He proposed four options for Muslim women to protect her
from the discriminatory use of triple talaq:

She may register the marriage under the special marriage act, 1954

She can insert conditions into the nikahnama to prohibit her husband from
exercising a triple talaq

She delegate the right to talaq to herself

Insist on the payment of a high mehar amount to deter the exercise of triple talaq.

JUDGEMENT: SHAYARA BANO V. UNION OF INDIA

On 22 of August 2017, the five judge’s bench of the Supreme Court pronounced is
its decision in the triple talaq case, declaring that the practice was unconstitutional
by a 3:2 majority. After 6 days of arguments from both side, it reserved the case
for judgment.

The court directed the Parliament to take legislative measures against the practice
of triple talaq. Justice Rohinton Nariman and Uday Lalit held that talaq e biddat is
regulated by the Muslim personal law (shariat) application 8, 1937. They held the
practice is unconstitutional because it is manifestly arbitrary in nature. Justice
Kurian Joseph on the other hand, in his concurring opinion, noted that triple talaq
is against the Quran, and thus lack legal sanction. He wrote, “What is held to be
bad in the holy Quran cannot be good in Shariat and, what is bad in theology is bad
in law as well”.

Notably, the dissenting minority opinion of chief justice Khehar and Justice
Abdul Nazeer traced the elevation of personal law to the status of
fundamental rights in the constituent assembly debate on Article 25 and 44.
They held that triple talaq is not regulated by the shariat act of 1937, but is an
intrinsic part of personal law. Thus, it is protected by article 25. Further, the
solution to the gender discriminatory practice of talaq e biddat is legislative action
and not a challenge to its constitutionality.
PRESENT STATUS OF THE JUDGEMENT (WHETHER STILL
APPLICABLE OR OVER RULED)

Yes it is still applicable. On 22nd August 2017 Indian Supreme Court beamed
instant triple talaq or talaq e biddat unconstitutional. On 30th July 2019,
Parliament of India declared the practice of triple talaq as illegal, unconstitutional
and made it punishable act from 1st August 2019 which is deemed to be in effect
from 19th September 2018.

RELATED ARTICLES:

Article 13 of the Indian Constitution describes the means for judicial review. It
enjoins a duty on the Indian State to respect and implement the fundamental right.
And at the same time, it confers a power on the courts to declare a law or an act
void if it infringes the fundamental rights.

Article 15 of the Constitution of India 1949

Prohibition of discrimination on grounds of religion, race, caste, sex or place of

birth
(1) The State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, and place of birth or any of them

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or
any of them, be subject to any disability, liability, restriction or condition with
regard to

(a) Access to shops, public restaurants, hotels and palaces of public entertainment;
or

(b) The use of wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated to the use of the
general public

(3) Nothing in this article shall prevent the State from making any special
provision for women and children

(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from
making any special provision for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes and the
Scheduled Tribes.

Article 14 of the Constitution of India 1949

Equality before law The State shall not deny to any person equality before the law
or the equal protection of the laws within the territory of India Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth.

Article 25 of the Constitution of India 1949

Freedom of conscience and free profession, practice and propagation of

religion

(1) Subject to public order, morality and health and to the other provisions of this
Part, all persons are equally entitled to freedom of conscience and the right freely
to profess, practise and propagate religion

(2) Nothing in this article shall affect the operation of any existing law or prevent
the State from making any law

(a) Regulating or restricting any economic, financial, political or other secular

activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus Explanation I
The wearing and carrying of kirpans shall be deemed to be included in the
profession of the Sikh religion Explanation II In sub clause (b) of clause reference
to Hindus shall be construed as including a reference to persons professing the
Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions
shall be construed accordingly.

Article 44 of the Constitution of India 1949

Article 44 of the Indian Constitution states that “the State shall Endeavour to
secure for the citizens a uniform civil code (UCC) throughout the territory of
India.” The desirability of a uniform civil code is consistent with human rights and
the principles of equality, fairness and justice.
Article 21 of the Constitution Of India 1949
Protection of life and personal liberty No person shall be deprived of his life or
personal liberty except according to procedure established by law