Assignment on……

Recent Judgments Pronounced by the Supreme court On Golden Rule

of Interpretation

Submitted To Submitted By

Dr. Rakesh Meena Name – Kumari Diksha

Roll no- 210605

Sub- Interpretation of Statutes

Class- LL.M

Course – Department of Law

Session- 2021-2022

Semester- 1st
 INTRODUCTION
It is no surprise that legal words and phrases can often be confusing and unclear, specially to
a layman. The legal language consists of so many words that can be used in contexts
unknown to the reader. As a matter of fact, we cannot avoid these baffling words even if we
want to, because we are surrounded by them. The laws of a nation are framed using these
words. The statutes, judgements and guidelines that form a part of our legal justice system
comprise of such difficult words, that are best left to the experts to interpret, that is, the
judiciary. The courts have a very important responsibility of interpreting the statutes that the
government frames, hence providing a clear meaning to the not-so-clear terms. However,
what the courts need to keep in mind is that they cannot accord any meaning to the laws, as
per their whims. They have to carve out the clear meaning and implication of the language
used in the laws of a country.

Interpretation

Interpretation means understanding the correct meaning of a word or phrase. Interpretation is

important in law because it helps in ascertaining the meaning of an ambiguous term, in
particular a statute. It is often up to the judges to interpret the statutes so that it becomes easy
to deliver the judgement in relation to that statute. Ordinarily, the meaning of a statute is
derived keeping in mind the intention of its makers, and applied accordingly.

Interpretation can be either grammatical or logical. Interpretation of statutes falls under the
scope of logical interpretation, though sometimes grammatical interpretation is also required,
where different circumstances are inferred from the given rules. Often, words, by themselves,
do not project any meaning.

The Golden Rule of Interpretation

The golden rule of interpretation is a modification of the literal rule of interpretation. Where
the literal rule lays emphasis on the literal meaning of the words used in legal language, the
golden rule interprets the words in such a way that the absurdities and anomalies of literal
interpretation are avoided. The golden rule modifies the language as well as the grammar of
the words used in statutes and other documents of interpretation, thus providing the actual
meaning of the words. It brings forth the context in which the words have been used in a
particular stance.
It must be kept in mind that the golden rule of interpretation can only be used when there is
no correct grammatical construction possible. The legal language is sometimes composed of
such words that do not provide a noticeable meaning, and to determine the latent meaning the
golden rule is used. The judges of the courts must be aware of the consequences of
interpreting the statutes using the golden rule, and it must only be used where it is absolutely
necessary.

CASES…

1. STATE OF GUJRAT V. MANSUKHBHAI KANJIBHAI SHAH

Case: State of Gujrat v. Mansukhbhai Kanjibhai Shah

Citation: SC (0417) 2020
Bench: N.V. Ramana, Ajay Rastogi and Mohan M. Shantanagoudar, JJ.
Decided on: 27.04.2020

INTRODUCTION:

It is the landmark judgment that can be considered as a step ahead towards curbing the roots
of corruption which are percolated in every nook and corner of the public sphere including
the Educational institutions. The case related to corruption in educational Institutions wherein
the Apex Court acknowledged that “Corruption is the malignant manifestation of a malady
menacing the morality of men” and held that Deemed Universities are covered under the
purview of the definition of "University" under the Prevention of Corruption Act.

FACTS:

▪ Daughter of the Complainant was admitted to the MBBS course in 2012 in Sumandeep
Vidyapeeth which is a deemed University. The respondent in the present case is the trustee of
Sumandeep Charitable Trust which established and sponsored Sumandeep Vidyapeeth.

▪ FIR was filed by her mother against the four accused including the respondent in the present
case alleging that the fee of her daughter was completely paid as per the University’s annual
fee slab. But, before she filled up her final examination form in 2017, her father was asked to
pay additional Rs. 20lakhs for allowing the daughter to appear in the final examination.
▪ In lieu of the same, cheques were deposited in favour of the respondent and then the
complainant lodged FIR in the police station.

▪ Later, a sting operation and subsequent raids confirmed the commission of the alleged
offence. Non-dated cheques worth more than Rs. 100 crores and certain fixed deposits that
were drawn in the name of the institution were recovered.

▪ The charge sheet was filed against the four accused for various offences under Sections 7, 8,
10 and 13 (1)(b) and 13(2) of the Prevention of Corruption Act, 1988 read with Section 109
of Indian Penal Code, 1860. The respondent filed a discharge application under Section 227
of CrPC before the District and Sessions Court which rejected the application. The
respondent filed the Criminal Revision Application before Gujrat High Court which allowed
the application and discharged the respondent. Aggrieved by this, the State of Gujrat
appealed to the Supreme Court.

ISSUES:

1. Whether the Respondent is a 'public servant' under Section 2(c) of the PC Act, 1988?

2. Whether the Accused-Respondent can be discharged under Section 227 of the CrPC?

ARGUMENTS:

Arguments advanced by the appellant:

1. The PC Act is comprehensive legislation which intends to curb all kind of corruption
activities must be construed to include the act of the respondent. Thus, the
technicalities should not defeat the objective of the legislation.

2. The public function must not be the exclusive domain of the state; private institutions
like Universities also perform a public function by imparting education to the public.
As per UGC guidelines, Deemed Universities discharge public function.
3. The Respondent was discharging public duty. Positive command is not necessary to
perform a public duty or formal requirement of giving remuneration for the services
rendered.
4. Lack of authority to grant sanctions cannot lead to non-prosecution.

Arguments advanced by the Respondent:

 1. It is the settled principle of law that a law must be interpreted in a strict sense and the
Court must follow the interpretation that seeks to exempt the subject from the penalty
rather than the one which imposes the penalty on him.
2. The respondent as trustee is not a Public Servant as he did not hold any position in the
University and was not engaged by it for rendering any service.
3. The respondent does not fall within the ambit of Section 2(c)(XI) of the PC Act and
the Gujrat High Court was correct in acquitting the respondent.
4. No proper sanction was obtained for prosecuting the respondent. Sanction obtained
from the Charity Commissioner is not valid as he is not a Competent Authority as he
is not empowered to appoint or remove a Trustee.

JUDGMENT:

▪ The Court ruled that Deemed-to-be Universities are covered under the purview of the
definition of "University" under the PC Act. The Court acknowledged that the intention of
legislatures must be kept in mind while interpreting the law and the objective of the PC Act
was to achieve honesty in public life.

▪ The court analyzed the definition of ‘public servant’ and said that interpretation must
consider the genuine import of words.[1] The Court thus contradicted the principle of strict-
interpretation of law asserted by the Respondent.

▪ While deciding upon the claim of the respondent that deemed-to-be university cannot be
assumed under PC Act as it is separately defined under the UGC Act, 1956 and not covered
expressly under the PC Act, The Court referred to Bangalore Turf Club Ltd. v. Regional
Director, ESI Corporation[2]and observed that definition under one Act cannot be imported
into another if it is not pari-materia with one another, since the UGC and PC Act do not deal
with the same subject matter, they cannot be pari-materia.

▪ The Court held that the definition of public servant under the Act does not give an
exhaustive list of officials and focuses more on the public duty that they perform. An
individual is a public servant not based on the position he/she holds, but on the public duty
that is performed.
▪ The pieces of evidence recovered in the raid are sufficient to suspect the offense and thus,
the discharge of the accused by the High Court under Section 227 was not required.
Therefore, the Court set aside the order of the High Court.

ANALYSIS:

The Supreme Court has passed the judgment very correctly in the present case. The Judgment
can be marked as the beginning of the eradication of corruption from the education sector of
the country. The Court widened the scope of the terms like University and Public Servant
which will curb the illegal activities continuing in the educational institutions and promote
integrity in its functioning. Further, the Court has not delved into the technical nuances while
analyzing different definitions. By not following its literal interpretation and focusing more
on the intention of the legislatures to curb all kinds of corruption and this is a great move. By
passing such a judgment the Supreme Court did not let go the trust of common people from
the Indian Judiciary.

2. Chebrolu Leela Prasad Rao and others v. State of Andhra Pradesh and
others.

Court – Supreme Court of India

Bench- Justice Arun Mishra, Hon’ble Ms. Banerjee, Vineet Saran, M.R. Shah, Aniruddha
Bose (5 judge bench)
Appellants – CHEBROLU LEELA PRASAD RAO & ORS
Respondents- STATE OF ANDHRA PRADESH & ORS
Citation- 2020 SCC OnLine SC 383, Appeal (Civil), 3609 of 2002
,
Facts of the case
 The governor of Andhra Pradesh in the exercise of his powers under para 5(1) of
Schedule V to the Constitution of India, directed that the posts of teachers in the
educational institution in the scheduled tribe areas shall be reserved for scheduled tribes
only notwithstanding anything contained in any other order or rule or law in force.
 The Andhra Pradesh Administrative tribunal quashed the notification. Another
notification was promulgated to amend the previous notification and stated that the
appointment of non- tribals to hold the posts of teachers in the scheduled areas till such
 time the qualified local tribals were not made available. After that, nontribals who were
appointed as teachers in the scheduled areas filed Writ Petition No.5276/1993 in the
High Court of Andhra Pradesh at Hyderabad against termination of their services. The
same was allowed vide judgment, and the advertisements were held to be violative of
Article 14 of the Constitution of India.
 The Government issued a fresh notification vide GOMs. No. 3 dated 10.1.2000
effectively providing for 100% reservation in respect of appointment to the posts of
teachers in the scheduled areas. The tribunal set aside the GOMs (notification).
Aggrieved thereby, writ petitions were filed in the High Court, a 3 Judge Bench by
majority upheld the validity of G.O. Aggrieved by the same, the appeals have been
made to the supreme court of India.
ISSUED RAISED
1. What is the scope of paragraph 5(1), Schedule V to the Constitution of India?
2. Whether 100% reservation is permissible under the Constitution?
Arguments advanced by appellant
 There limited legislative power is conferred on the Governor to modify the existing
legislation made by the Parliament or the State legislature under Para 5(1) of the Fifth
Schedule to the Constitution. The power to make regulation was conferred under Para
5(2) of Schedule V. Under Para 5(1), there is no such legislative power.
 The Constitution of India does not permit 100% reservation in respect of any particular
class or category to the total exclusion of others. Reservation set out under Article 16
should not exceed the limit of 50%. (There is also a precedent in the case Indra
Sawhney v. Union of India).
 Reservation set out under Article 16 should not exceed the limit of 50%. The G.O.
would be counterproductive to the aim of the Constitution in providing protective
legislation, and the main thrust of the reservation is to bring in the disadvantaged classes
into the mainstream of the society at large. The idea of the tribal students to be taught
by tribal teachers in the scheduled areas is akin to compromising with the merit and
quality of education and further put the tribal children at a disadvantage and segregate
them from the mainstream.
Arguments advanced by the respondent
 The Indian Constitution is symmetrical and spatial for SCs/STs. In that view, the
scheduled areas are constituted under the provisions of Article 244 and Schedules V and
VI. The Constitution creates special classification. Equality is a concept of anti
 arbitrariness. The normal rule of 50% reservation can be relaxed in appropriate cases
that have precisely been done by the Governor.
 The scheme of Schedule V, as a whole, deserves to be dealt with on a special
constitutional footing, which is an exclusive constitutional enclave, free in its ambit to
ensure the promotion of the interests, concerns, and the development of scheduled areas.
 There are Special provisions which have been carved out in the Constitution, Article
16(4) is not an exception to Article 16(1) being part of equality. Reservations are
provided due to discrimination and disadvantages suffered by the backward classes,
scheduled castes and scheduled tribes for sharing the State power.

JUDGMENT
 A question is raised whether an executive order made in terms of Article 16(4) is
effective and enforceable by itself or whether it is necessary that the said “provision” is
enacted into a law made by the appropriate legislature under Article 309 or is
incorporated into and issued as a Rule by the President/Governor under the proviso to
Article 309 for it to become enforceable?
 The court stated that until a law is made or rules are issued under Article 309 with
respect to the reservation in favor of backward classes, it would always be open to the
Executive Government to provide for reservation of appointments/posts in favor of
Backward Classes by an executive order.
 By providing 100 percent reservation to scheduled tribes has deprived the opportunity
to other communities. The concept of reservation is not proportionate but adequate, as
held in Indra Sawhney (supra). The action is thus unreasonable and arbitrary and
violative of provisions of Article 14,15 and 16 of the Constitution of India. It also
impinges upon the right of open category and scheduled tribes who have settled in the
area after 26th January 1950. The total percentage of reservation provided for
Scheduled Tribes in the State is 6%. By providing 100 percent reservation in the
scheduled areas, the rights of the tribals, who are not residents of the scheduled areas,
shall also be adversely affected. As per Presidential order under Article 371D, they
cannot stake their claim in other areas.
 The honorable court thus stated that It was least expected from the functionary like
Government to act in aforesaid manner as they were bound by the dictum laid down by
this Court in Indra Sawhney (supra) and other decisions holding that the limit of
 reservation not to exceed 50%. There was no rhyme or reason with the State
Government to resort to 100% reservation and therefore these notification are
unconstitutional.
CONCLUSION
This case is very important and has far-reaching consequences, it has strengthened the
arguments of having a revision of the reservation list by the Government, the court is of
opinion that “It can be done presently without disturbing the percentage of reservation so that
benefits trickle down to the needy and are not usurped by those classes who have come up
after obtaining the benefits for the last 70 years or after their inclusion in the list”.
The court opinion can also be interpreted to strengthen the arguments to introduce a creamy
layer for the SC/ST community as it is considered for the OBC community, which can help
the poorest of poor and those who are devoid of the benefits of reservation.

3. Dr. Subhash Kashinath Mahajan vs. The State Of

Maharashtra

In Supreme Court Of India

Citation

AIR 2018 SC 1498

Petitioner

Dr. Subhash Kashinath Mahajan

Respondent

The State of Maharashtra

Date of Judgement
2th March, 2018

Bench

Adarsh Kumar Goel and Umesh Lalit

Background:

The case that we discuss today is a landmark judgment in the legal history of India. The case
Dr. Subhash Kashinath Mahajan vs. State Of Maharashtra is landmark due to the fact because
it laid down as to how Schedule tribes (Prevention of Atrocities Act), 1989 is being misused
and there is importance of quashing complaints where no concrete evidence could be found
against the said wrongdoer. In this case there was a complaint by an employer towards his
senior. The complainant belonged to schedule caste and his seniors were not of this caste.
They wrote derogatory comments and adverse entry in his annual confidential report to the
extent wherein they wrote that his integrity and character were not good. He filed an FIR
under atrocities act and the police took action against the two accused under section 197 of
CrPC and the two seniors refused to such allegation. The aggrieved filed another complaint
against the state government stating that they could only get sanction from there as they were
class-1 officers. The appellant has filed an application for quashing of such complaint but the
same was set aside. So, herein in this case the court was to decide that could any action could
be taken against officials who were acting in official capacity and what if the allegation made
is false providing with remedy for the same.

Issues Raised:

1. The first issue which was raised was that any mala fide allegation made against officers
can be ground for prosecution if such officers were acting within their official capacity?

2. Second issue was that if such an allegation was falsely made what is the remedy for the
same?
Facts:

1. Respondent was a shopkeeper in a government college and filed a First Information Report
(FIR) against his two seniors who had written adverse comments in the annual confidential
report these two officials did not belong to the SC/ST caste and it was alleged that it was
done deliberately by the officers due to caste indifferences.

2. Police took an action against the two accused under section 197 of CrPC but the two
refused such sanction.

3. Therefore, Respondent filed a complaint against the Appellant on the ground that the
Director of Technical education was not competent to grant/refuse such sanction as the two
officers are class-1 officers and therefore only the state government could grant such
sanction.

4. After all this a case was registered under the following sections:-

a) 3(1)(ix)-Atrocities Act

b) 3(2)(vi)- Atrocities Act

c) 3(2)(vii)- Atrocities Act

d) Section 182- IPC

e) Section 192- IPC

f) Section 193- IPC

g) Section 203- IPC

h) Section 219 read with section 34- IPC

5. The appellant filed an application for quashing of the said complaint but the same was
dismissed by the High Court.
Contentions Raised:

Appellant:

1. It was argued from the appellant that no offence was committed under section 3(1)(ix),
3(2)(vi), 3(2)(vii) of the Atrocities Act and also under section 182, 192, 193,203 and 219 of
IPC therefore it was argued that the complaint should have been quashed by the HC.

2. It was alleged that the FIR was made lodged after five years of the order passed by the
appellant and the order passed was also erroneous and because of all this proceedings could
not have taken place.

3. It was stated that the offences which are specified under Atrocities Act depended solely on
the fact of the complaint which may not be true and no supportive evidence for the same
could be found. This endangers the fundamental right provided under the constitution
because without any valid proof or verification the person is held liable.

4. It was argued when there is no proof for such material substance then there should be an
exercise for eliminating the use of arbitrary power of arrest provided that there should be
preliminary enquiry thereto reason to be provided as to why such arrest was made.

Respondent:

1. It was argued that when the law is made there is no need for the court to issue guidelines
provided there was no need to go for validating the provisions in Atrocities Act.

2. After taking inference from several cases it was argued that anticipatory bail can be
granted where the cases are not amounting to any fabrication.

3. The Government of India had issued advisories on 03.02.2005, 01.04.2010 and 23.05.2016
also amendments were made in atrocities act stating the provision for special courts as well as
exclusive special courts.
Significance of the Judgement:

1. The Court after going through all the contentions, submissions, evidences raised from both
the side held that in the absence of any other sole offence calling for arrest in lieu of offences
mentioned under the Atrocities Act no arrest may be done if a person is a public servant
without the written permission of the appointing authority.

2. It was further stated that if the person is not a public servant then a person cannot be
arrested without a written permission of the Senior Superintendent of Police of the District
provided that the permission granted and the reasons provided must be recorded and they
must be served to the person being arrested and before the Court.

3. It was stated when the person arrested is produced before the magistrate, then the
magistrate must apply his mind to the reasons which have been recorded and such detention
should be allowed only if the allegations are found to be true.

4. It was held that in order to avoid false complaints and FIRs a preliminary inquiry may be
made to see whether the case falls within the parameters of Atrocities Act. The whole
purpose of this is to see that there is no fraud and fabricated complaint.

5. Thus, the court held that the proceedings against the appellant must be quashed since there
was no merit for such allegation against the complainant.

6. This judgment made it clear that there can be no use of the Atrocities Act since there were
cases which were being registered just in pretext of caste discrimination.

7. If there is no concrete proof for any allegation that is made against the accused person even
during the inquiry of preliminary committee then there is no need for any action against such
complaint.

8. It is evident from the history of India that there is caste discrimination in our society and
somewhere down the line it still persists due to this fact the constitution makers made
relevant articles for protection of such backward classes and also an act was passed for the
same but if the privilege which is given is misused then precautionary steps are to be taken
which was very well stated in this case.

4. Nikesh Tarachand Shah vs. Union of India

THE SUPREME COURT OF INDIA

(2018) 11 SCC

Petitioner

Nikesh Tarachand Shah

Respondent

Union of India

Date of Judgment

23rd November, 2017

Bench

Hon’ble Justice F Nariman; Sanjay Kishan Kaul, JJ.

Introduction:

As noted by Hon’ble V.R. Krishna Iyer the question of whether to grant bail or jail in the pre-
trial stage will consistently belong to the blurred area. Indian Courts have recognized that
“bail, not jail, is the norm“, according to the Eighth Amendment to the United States
Constitution. In this context, the pre-bail conditions imposed by certain special laws,
presumably based on the “interest of the State”, have presented a new challenge to the
Courts. The extent to which such conditions could infringe the rights of the accused is an
important topic of discussion. Recently, one of those challenges (“Nikesh Tarachand Case”)
was presented to the Supreme Court of India (“Supreme Court”), where the petitioners had
challenged the constitutional validity of Section 45 (1) of the Prevention of Money
Laundering Act of 2002 (“PMLA”), to the extent that it imposed two additional conditions
(explained in detail below) for granting bail to a person accused of a crime under Part A of
the List at PMLA.
Background:

Judicial Background:

In India, the right of bail is available against crimes that are not punishable by death or life
imprisonment and only for women and children in non-fictitious crimes punishable by death
or life imprisonment.

The under-trial prisoners formed 80 percent of the prison population and in some cases in
which the period of incarceration of the sub-treaties exceeded the period of incarceration
prescribed for the crimes charged to them; these problems were brought before the Supreme
Court in Hussainara Khatoon v. Bihar State. Following Maneka Gandhi v. Union of India,
as provided for in Article 21 the Court ordered the release of persons whose prison period had
exceeded the prison period for their crimes.  In Mantoo Majumdar v. State of Bihar, the
Supreme Court once again confirmed the right to personal liberty of the accused and ordered
the petitioners to be released on their own bail and without guarantees, since they had spent
six years awaiting trial in prison. The Court regretted the delay in the police investigation and
the mechanical operation of the preventive detention process by the magistrates as insensitive
to the personal liberty of the subsequent ones, sent by them to prison. The Court deplored the
delay in the police investigation and the mechanical operation of the pre-trial detention
process by the magistrates as insensitive to the personal liberty of the sub-treaties, and the
magistrate’s decision to control the detention of the under-trials imprisoned by them.

Constitutional and Statutory Provisions Discussed:

 Prevention of Money Laundering Act- Sections 45, 43, 44, 45, 46, 2, 3, 4, 5, 65
and 71.

 Constitution of India- Article 21 and 14.

 Code of Criminal Procedure- Sections 436, 437, 438 and 439.

Facts:

An appeal was filed which questioned the constitutional validity of Section 45 of the
Prevention of Money Laundering Act. Section 45 imposes two conditions for the granting of
the bond. The conditions being that, the prosecutor must have the occasion to oppose any
request for bail also, the Court must be pleased that the defendant was not guilty of such a
crime and that he will not commit any crime while on bail.

Issues:

 Whether section 45 of the Prevention of Money Laundering Act, 2002 is

constitutionally valid?

Arguments:

Arguments of the Petitioners:

 Shri Mukul Rohatgi, the senior advocate, argued that Section 45 PMLA, when it
imposes two additional conditions before the granting of the bond is manifestly
arbitrary, discriminatory and in violation of fundamental rights of the petitioner
under Article 14 read with Article 21 of the Constitution. He further argued that
the objective was not to deny bail to those accused of crimes under Part B above
and that putting the crimes of Part B together with the heinous crimes in Part A
would be tantamount to treating unequals equally and it would be discriminatory
and violating Article 14 of the Constitution.

Arguments of the Respondents:

 Attorney General Shri K.K. Venugopal on behalf of the respondents argued that
the scheduled crimes and the crimes provided for in Sections 3 and 4 of 2002 must
be read together and it forms a complete code in itself.

 The Attorney General argued that the expression “any crime” in Section 45 (1) (ii)
would mean a crime of a similar nature and not any crime, which would also
include a traffic offense.

 It was argued, the expression in Section 45 that “there are reasonable grounds to
believe that you are not guilty of such a crime” should be construed as a prima
facie assessment of the Court of reasonable culpability. Second, according to the
wise Attorney General, in any case, the conditions contained in Section 45 (1) (ii)
 are there in a different form when the bonus is generally granted with respect to
crimes in general and referred to the State of UP through C.B.I. v. Amarmani
Tripathi, for this purpose. According to the wise Attorney General, applying the
rule of harmonious construction Section 45 is irrefutable. It was based on Section
24 of PMLA, which reverses the burden of proof, and relied heavily on Gautam
Kundu v. Directorate of Enforcement, and Rohit Tandon v. The Directorate of
Enforcement, Criminal Appeals Nos. 1878-1879 of 2017 decided on November
10, 2017.

 In response to Shri Rohatgi’s argument about the purpose of the 2012 Amendment
Act, according to the wise Attorney General, it is well established that where the
language of the Law is clear, the object of the Law cannot be used and he cited
several trials for this proposition.

Judgment:

Ratio Decidendi:

 Article 14 allows classification, provided that said classification has a rational

relationship with the object to be achieved. While a reasonable classification is
allowed, such classification must be based on some real and substantial distinction
that has a reasonable and fair relationship with the object to be achieved, and the
classification cannot be done arbitrarily and without any substantial loss.

 After the decision in Maneka Gandhi caseArticle 21 affords protection not only
against the executive action but also against the legislation which deprives a
person of his life and personal liberty.

Obiter Dicta:

 Both the money laundering offense and the predicate offense were to be tried by
the Special Court, and bail is granted only if the twin conditions are met under
Section 45 (1). 

 The doctrine of arbitrariness would only imply that a law was disproportionate,
excessive or manifestly unreasonable. All the aforementioned reasons do not seek
 to differentiate between the actions of the State in its various forms, all of which
are intercepted if they violate the fundamental rights guaranteed to individuals and
citizens in Part III of the Constitution. 

 The test of manifest arbitrariness as established in the aforementioned sentences

would be applied to invalidate the legislation, as well as the subordinate legislation
under Article 14.

 A classification based on the imprisonment of more than three years of a crime

contained in Part A of the List, which is a determining crime, would not have a
rational relationship with the object of attaching and returning large amounts to the
economy for the proceeds of crime.

Conclusion:

The Supreme Court ruling in the Nikesh Tarachand casethe legality of pre-bail conditions is
very important and inconsistencies in the scope and applicability of pre-bail conditions under
the prevention of money laundering act made a very strong case. With the ruling regarding
the constitutionality of the conditions precedent to bail (especially in economic crimes), it
may be worth considering whether the Supreme Court would have eliminated the conditions
otherwise severely challenged, but because of the ambiguity caused by the Amendment Act,
2012.

Given the (incorrect) scheme of crimes scheduled under the PMLA Act, it was obvious that
the Supreme Court could not have reached any other conclusion. It remains to be answered if
an economic crime, such as money laundering, demanded strict/drastic conditions, such as
contested conditions, and if the state could restrict the rights of a person in the case of such
crime.

5. Independent Thought v. Union of India and Another

Year
2017
Jurisdiction
India
Law(s) -Article 14, Article 15, and Article 21 of Constitution
Bench Strength
2
Case Type/Origin
Civil Writ Petition
Case Status
Not Overruled
Number of Opinion(s)
2
Case Citation
[2017] 10 SCC 800, AIR 2017 SC 4904
Aspect(s) of privacy
Bodily Integrity & Dignity

In this case, Independent Thought v. Union of India, the petitioner was Independent thought,
a registered society which has been working in the welfare of child rights, and the
respondents were the Union of India and National Commission for Women .Section 375 of
IPC defines rape and has also a provision dealing with the age of consensual sex as 18.
Exception 2 to Section 375 says that a husband can have non-consensual sex with her wife
who is between 15 and 18 years of age. The issue raised before the apex court was to decide
the legality and constitutionality of Exception 2 to Section 375 of IPC.

The division bench of the Supreme Court gave concurring opinions to decide the case in the
favour of petitioner. It read down the Exception 2 to Section 375 of IPC and cleared that
anything in the judgement shall not be taken into consideration with the issue of “marital
rape”.

Facts

In 2013, by the Criminal Law Amendment Act, the age of consent to sexual intercourse was
increased from 16 to 18 mentioned under Section 375 of the Indian Penal Code. But, there
was an exception clause to this Section i.e., under Exception 2, a husband can have non-
consensual sex with a girl child (i.e. below 18 years) if she is above 15 years.  In 2012, the
POCSO Act was passed which also set the minimum age for the consensual sex as 18 years.
Exception 2 was contradictory to the Section 3 of the POCSO act which has criminalized
penetrative sexual assault.
The petitioner, Independent Thought is a National Human Rights organization which was
registered on 06.08.2009.  On 11.06.2013, the petitioner in public interest filed a writ petition
under Article 32 of the Constitution challenging the legality and constitutionality of
Exception 2 as it was both arbitrary and discriminatory towards the girl child.

In February 2014, the Home Ministry under the United Progressive Alliance (UPA)
government filed a counter-affidavit which was also later adopted by the National
Democratic Alliance government, in support of the Exception 2

Analysis of the Judgement

The Division Bench while deciding whether a husband commits the offence of rape if he has
sexual intercourse with her wife who is between 15-18 years of age, commented as follows:

 The Exception 2 of IPC creates an artificial distinction between a married girl child and
an unmarried girl child without any reasonable nexus. The artificial distinction is
contrary to both Article 15(3) and Article 21 of the Constitution. No other provision in
penal laws gives any immunity to the husband. It also violates the bodily integrity and
reproductive choice of the girl child and has no measures for trafficking of a girl child.
Therefore, it is being arbitrary and discriminatory hindering the best interest of the girl
child.
 The parliament has increased both the age of marriage and age of consent from time to
time. Currently, a girl child is neither eligible to marry nor give a consent before 18
years. When age has been raised in all the other laws then Exception 2 by keeping the
age of consent for a wife 15 year, has become unreasonable, unjust, unfair and
violative of the rights of the girl child. Therefore, it is arbitrary and should be set aside.
 The Exception 2 should be read down as follows to make it consistent with the
constitution:

“Sexual Intercourse or Sexual acts by a man with his own wife, the wife not being 18 years,
is not rape.”

 The issue before the Court is only of marital rape of the girl who is below 18 years and
not that of above 18 years. So, the judgement should not be observed in any way for
commenting on the issue of "marital rape" of an adult girl.
Per Justice Madan B Lokur

1. Article 21 of the Constitution: Under Article 21 of the Constitution, a girl child has a
right to live with dignity which is violated by Exception 2 by destroying her bodily
integrity and reproductive choice.
2. Article 14 of the Constitution (Right to equality): A child is a child whether married
or unmarried or divorced or separated or widowed. The rationale of classification
between a married and unmarried child in Exception 2 has become non-existent,
therefore, making exception arbitrary, unreasonable and violative of the doctrine of
equality.
3. Article 15 of the Constitution: Under Article 15(3), Parliament has powers to make
legislation for the welfare of child and women. POCSO was such a prerogative of
Article 15(3) by the legislature. POCSO provisions have overriding effect over any
other law. There is an artificial distinction between rape of a married girl child and
aggravated penetrative Sexual Assault which is completely arbitrary and
discriminatory.
4. To harmonise the system of law, Exception 2 to Section 375 of IPC will now be read
as stating that sexual intercourse with a wife who is not below 18 years is not a rape.

Per Justice Deepak Gupta (Concurring)

1. Fundamental Rights: It is the duty of the court to either strike down or read down the
law making it consistent with the constitution if any law violates the Fundamental
Rights of the citizens.
2. Article 14 of the Constitution: Exception 2 decriminalises the forceful sexual relation
by a husband with his wife between of 15-18 years, who is a girl child unable to look
for herself, therefore, it is arbitrary. Moreover, it is discriminatory as it is
discriminating between an educated girl child who is protected even if she has sexual
intercourse whereas, it doesn’t help a married girl between 15-18 years even if she is
subjected to have forceful sexual intercourse by her husband. Therefore, Exception 2
being discriminatory and arbitrary is violative of Article 14 of the Constitution.
3. Article 21 of the Constitution: Right to life also includes right to live with human
dignity. A girl’s right to life also includes the right to develop physically, mentally
and economically as an independent self-sufficient female adult.
 4. Article 15 of the Constitution: Due to the paucity of funds State should not form a law
negatively affecting its citizens that too a minor girl child. Relying on Vishaka v.
State of Rajasthan it was said as follows:

A forceful sexual intercourse with a 15 or 16 years old girl child leads her to trauma which is
injurious to her body as well as her mind. Exception 2 is violative of Article 14, 15 and 21 of
the Constitution as it puts a girl’s both physical and mental health in serious jeopardy.

5. As Court has not dealt with the wider issue of “marital rape”, it should be read down
as that a husband having sexual intercourse or sexual activity with her wife is not
commencing the offence of rape.

Nothing in the judgement can be observed in any way on the issue of “marital rape.”

Conclusion

Independent Thought case has taken a major step to protect the girl child by criminalising the
sexual intercourse with a wife below 18 years. But, the Supreme Court had not laid down any
special provision for dealing with such cases where the interest of other child is also at stake.
It did not consider those cases where the husband is also a minor and would be as innocent as
the girl if have consensual sex with her. In India, cases of eloping and marriage are very
prevalent, the Apex Court's ignorance towards such cases just because they can be
generalised under the child marriage cases is against the interest of the boy child. The Court
also tried to not comment on "marital rape" issue where the girl is above 18 years by
emphasising that “marital rape” is not the issue before the court and judgement should not be
observed in any way for the issue of "marital rape". The reasoning court applied for
concluding that Exception 2 is violative of Fundamental Rights was equally applicable to a
girl above 18 years old whose right to dignity is injured by the forceful sexual relation.