Section 497 IPC and Section 198 CrPC unconstitutional & adultery no more an offence : SC

The civility of a civilization earns warmth and respect when it respects more the individuality of a woman. The said concept gets a further accent when a woman is treated with the real spirit of equality with a man. Any system treating a woman with indignity, inequity and inequality or discrimination invites a wrath of the Constitution.

– Dipak Misra, CJI and A.M. Khanwilkar ,J.

Supreme Court: The 5-Judge Constitution Bench has held section 497 IPC and Section 198 CrPC to be unconstitutional and violative of Articles 14, 15 (1) and 21 of the Constitution. CJ Dipak Misra delivered the leading judgment for himself and A.M. Khanwilkar, J. While R.F. Nariman, Dr D.Y. Chandrachud and Indu Malhotra, JJ., each delivered their separate concurring opinions.

Before the Supreme court, in the writ petition, was the constitutional validity of Section 497 IPC which criminalizes adultery and Section 198 CrPC which provides for offences against marriages. Petitioner submitted that the provision by its very nature is arbitrary and invited the frown of Article 14 of the constitution.

CJ Dipak Misra (for himself and A.M. Khanwilkar) stated that on a reading of the provision, it is demonstrable that women are subordinated to men in as much as it lays down that when there is connivance or the consent of the man (husband), there is no offense. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is the reflection of the social dominance that was prevalent when the penal provision was drafted. It was also noted that the section doesn’t bring within its purview an extramarital relationship with the unmarried woman or a widow. It treats husband of the women to be a person aggrieved for the offense punishable under section 497. It does not treat the wife of the adulterer as an aggrieved person. In regard to dignity to women and gender equality, it was observed that Section 497 curtails equality to and dignity of women by creating invidious distinctions based on gender stereotypes which creates a dent in the individuality of women. Besides, the emphasis on the element of connivance or consent of the husband tantamount to subordination of women. Therefore we have no hesitation in holding that the same offends Article 21 of the constitution.

In the words of the Court, “treating adultery an offense, we are disposed to think, would tantamount  the State entering into real private realm. Under the existing provision, the husband is treated as an aggrieved person and the wife is ignored as a victim. Presently the provision is reflective of a tripartite labyrinth. A situation maybe conceived of where equality of status and the right to file a case maybe conferred on the wife. In either situation, the whole scenario is extremely private.”

R.F. Nariman, J. In his concurring opinion referred to various religious testaments and texts as also law and judgments of various foreign jurisdictions. He observed that the ostensible object of Section 497, being to protect and preserve the sanctity of marriage, is not, in fact, the object of Section 497 IPC. The sanctity of marriage can be utterly destroyed by a married man having sexual intercourse with an unmarried woman or a widow. Also, if the husband consents or connives at such sexual intercourse, the offence is not committed, thereby showing that it is not sanctity of marriage which is sought to be protected and preserved, but a proprietary right of a husband. Secondly, no deterrent effect has been shown to exist, or ever to have existed, which may be a legitimate consideration for a State enacting criminal law. Also, manifest arbitrariness is writ large even in cases where the offender happens to be a married woman whose marriage has broken down, as a result of which she no longer cohabits with her husband, and may, in fact, have obtained a decree for judicial separation against her husband, preparatory to a divorce being granted. If, during this period, she has sex with another man, the other man is immediately guilty of the offence.

Dr D.Y. Chandrachud, J. also referred to foreign judgments and distinguished authors. Section 497 IPC is destructive of and deprives a woman of her agency, autonomy and dignity. If the ostensible object of the law is to protect the ‘institution of marriage’, it provides no justification for not recognising the agency of a woman whose spouse is engaged in a sexual relationship outside of marriage. She can neither complain nor is the fact that she is in a marital relationship with a man of any significance to the ingredients of the offence. The law also deprives the married woman who has engaged in a sexual act with another man, of her agency. She is treated as the property of her husband. That is why no offence of adultery would be made out if her husband were to consent to her sexual relationship outside marriage. Worse still, if the spouse of the woman were to connive with the person with whom she has engaged in sexual intercourse, the law would blink. Section 497 is thus founded on the notion that a woman by entering upon marriage loses, so to speak, her voice, autonomy and agency. manifest arbitrariness is writ large on the provision.

Indu Malhotra, J., the only woman on the Bench traced the origin of the word adultery from the French language; and discussed the doctrine of coverture, historical background of Section 497 and contemporary international jurisprudence. She observed that the Section is replete with anomalies and incongruities which renders it liable to be struck down as arbitrary and discriminatory.

Resultantly, Section 497 IPC and Section 198 CrPC were struck down. And the decisions in Sowmithri Vishnu v. Union of India, 1985 Supp SCC 137 and V. Revathi v. Union of India, (1988) 2 SCC 72 were overruled. Justice Malhotra, in her opinion, delivered, also held W. Kalyani v. State, (2012) 1 SCC 358 as overruled. The petition was accordingly disposed of. [Joseph Shine v. Union of India,2018 SCC OnLine SC 1676, decided on 27-09-2018]

Cases of constitutional and national importance to be live streamed and Supreme Court Rules to be modified suitably: SC

Supreme Court: A Bench comprising of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ. decided in favour of live streaming of cases of constitutional or national importance before a Constitution Bench of the Supreme Court. Justice Khanwilkar delivered the leading judgment for the CJI and himself. While Justice Chandrachud rendered a separate concurring opinion.

The petitioners, claiming to be public-spirited persons, sought a declaration that Supreme Court case proceedings of constitutional importance having an impact on the public at large or a large number of people should be live streamed in a manner that is easily accessible for public viewing. Further direction was sought to frame guidelines to enable the determination of exceptional cases that qualify for live streaming. The Court requested the Attorney General for India, K.K. Venugopal to collate the suggestions given by him as well as the petitioners and submit a comprehensive note for evolving a framework, in the event the relief claimed in the writ petition(s) was to be granted.

The Supreme Court made a reference to Section 327 CrPC and 153-B CPC to which can be traced provisions regarding open court hearing. In Court’s considered opinion use of technology to relay the live court proceedings could be a way forward. By providing virtual access of live court proceedings to one and all, it would effectuate the right of access to justice or right to open justice and public trial, right to know the developments of law and include the right of justice at the doorstep of the litigants. However, it was also opined that while doing so, regard must be had to the fact that just as the dignity and majesty of the Court is inviolable, the issues regarding privacy rights of the litigants or witnesses, as also other exceptional categories of cases of which live streaming of proceedings may not be desirable as it may affect the cause of administration of justice itself, are matters which need to be identified and a proper regulatory framework must be provided in that regard by formulating rules in exercise of the power under Article 145 of the Constitution.

While generally agreeing with the Comprehensive guidelines for live streaming of Court proceedings in the Supreme Court suggested by the Attorney General K.K. Venugopal as stated below:–

Recommendations:
Supreme Court may lay down the following guidelines to administer live streaming of Court proceedings:

1. At the outset, it is submitted that Live Streaming of Court proceedings should be introduced as a pilot project in Court No.1 and only in Constitution bench references. The success of this project will determine whether or not live streaming should be introduced in all courts in the Supreme Court and in Courts pan India.

2. To ensure that all persons including litigants, journalists, interns, visitors, and lawyers are able to view the live streaming of the proceedings, a media room should be designated in the premises of the court with necessary infrastructural facilities. This will also ensure that courts are decongested. Provisions may also be made available for the benefit of differently abled persons.

3. Apart from live streaming, the Supreme Court may, in the future, also provide for transcribing facilities and archive the audio-visual record of the proceedings to make the webcast accessible to litigants and other interested persons who are unable to witness the hearings on account of constraints of time, resources, or the ability to travel long distances to attend hearing on every single date. Such webcasts will also allow students of law to supplement their academic knowledge and gain practical insights into cases of national importance.

4. It is pertinent that this Hon’ble Court lay down guidelines to safeguard and limit the broadcasting and recording of its proceedings to ensure better access to justice. Some of the recommendations are:

a. The Court must have the power to limit, temporarily suspend or disallow filming or broadcasting, if, in its opinion, such measures are likely to interfere with the rights of the parties to a fair trial or otherwise interfere with the proper administration of justice.

b. The Court may law down guidelines/criterion to determine what cases constitute proceedings of constitutional and national importance to seek permission for broadcasting.

c. As held famously in the case of Scott v. Scott, (1913) AC 417, “While the broad principle is that the Courts must administer justice in public, the chief object of Courts of justice must be to secure that justice is done”, broadcasting must not be permitted in the cases involving:

i. Matrimonial matters,
ii. Matters involving interests of juveniles or the protection and safety of the private life of the young offenders,
iii. Matters of National security,
iv. To ensure that victims, witnesses or defendants can depose truthfully and without any fear. Special protection must be given to vulnerable or intimidated witnesses. It may provide for face distortion of the witness if she/he consents to the broadcast
anonymously,
v. To protect confidential or sensitive information, including all matters relating to sexual assault and rape,
vi. Matters where publicity would be antithetical to the administration of justice.
vii. Cases which may provoke sentiments and arouse passion and provoke enmity among communities.

d. Use of the footage would be restricted for the purpose of news, current affairs and educational purposes and should not be used for commercial, promotion, light entertainment, satirical programs or advertising.

e. Without prior written authorization of the Supreme Court of India, live streaming or the webcast of the proceedings from the Supreme Court should not be reproduced, transmitted, uploaded, posted, modified, published or republished to the public.

f. Any unauthorized usage of the live streaming and/or webcasts will be punishable as an offence under the Indian Copyright Act, 1957 and the Information Technology Act, 2000 and any other provisions of the law in force. The law of contempt should apply to such proceedings. Prohibitions, fines, and penalties may be provided for.

g. The Courts may also lay down rules of coverage to provide for the manner in which the filming may be done and the equipment that will be allowed in court.

h. Case management techniques should be introduced to ensure that matters are decided in a speedy manner and lawyers abide by time limits fixed prior to the hearing. A skeleton of arguments/Written submissions should be prepared and submitted to the Court by the lawyers prior to their arguments.

i. The Court of Appeal in England, in November 2013, introduced streaming its proceedings on YouTube. The telecast is deferred by 70 seconds with the Judge having the power to mute something said in the proceedings if he feels they are inappropriate for public consumption.

j. Like the Court of Appeal in England, the Supreme Court should also lay guidelines for having only two camera angles, one facing the judge and the other- the lawyer. The camera should not focus on the papers of the lawyer; the Court was of the opinion that:

Project of live streaming must be implemented in a progressive, structured and phased manner, with certain safeguards.
The project will have to be executed in phases. Before the commencement of the first phase, formal rules will have to be framed by the Supreme Court to incorporate the recommendations.
Only cases of constitutional or national importance being argued for final hearing before a Constitution Bench with advance written permission of the Court concerned be live streamed as pilot project.
Prior consent of all parties to be insisted and in case of objections Court to decide and that decision shall be final.
Court would retain the power to revoke permission at any stage of the proceedings.
There must be a reasonable time-delay between live court proceedings and the broadcast to edit any information which ought not to be shown.
Appointment of a technical committee comprising of the Registrar (IT), video-recording experts, etc. to develop technical guidelines for recording and broadcasting.
The focus of cameras to be either towards Judges/Bench or the arguing advocates. No broadcast of any interaction between the client and advocate.
Court to retain copyright over the broadcast material.
Reproduction, publication, etc. of the original broadcast material in any form shall be prohibited.
The Court concluded by reiterating that the Supreme Court Rules, 2013 will have to be suitably amended to provide for the regulatory framework as per the contours delineated hereinabove.

Dr D.Y. Chandrachud, J. delivered a separate concurring opinion wherein he formulated Model guidelines for the broadcasting of the proceedings and other judicial events of the Supreme Court of India

A. Kind of matters to be live-streamed

1. Proceedings involving the hearing of cases before the Supreme Court shall be live-streamed in the manner provided below:

a) Cases falling under the following categories shall be excluded as a class from live-streaming:

(i) Matrimonial matters, including transfer petitions;
(ii) Cases involving sensitive issues as in the nature of sexual assault; and
(iii) Matters where children and juveniles are involved, like POCSO cases.
b) Apart from the general prohibition on streaming cases falling in the above categories, the presiding judge of each courtroom shall have the discretion to disallow live-streaming for specific cases where, in his/her opinion, publicity would prejudice the interests of justice. This may be intimated by the presiding judge in advance or live-streaming may be suspended as and when a matter is being heard; and
c) Where objections are filed by a litigant against live-streaming of a case on grounds of privacy, confidentiality, or the administration of justice, the final authority on live-streaming the case shall lie with the
presiding judge.

2. In addition to live-streaming of courtroom proceedings, the following events may also be live-streamed in the future subject to the provisions of the Rules:
(a) Oath ceremonies of the Judges of the Supreme Court and speeches delivered by retiring judges and other judges in the farewell ceremony of the respective Supreme Court Judges; and
(b) Addresses delivered in judicial conferences or Full Court References or any event organized by the Supreme Court or by advocate associations affiliated to the Supreme Court or any other events.

B. Manner of live-streaming

1. Live-streamed and archived videos of the broadcast shall be made available on the official website of the Supreme Court. The recorded broadcast of each day shall be made available as archives on the official website of the Supreme Court by the end of the day;

2. Live-streaming shall commence as soon as the judges arrive in the courtroom and shall continue till the Bench rises;

3. The presiding judge of the courtroom shall be provided with an appropriate device for directing the technical team to stop live-streaming if the Bench deems it necessary in the interest of administration of justice;

4. Live-streaming of the proceedings should be carried out with a delay of two minutes;

5. Proceedings shall only be live-streamed during working hours of the court;

6. Courtroom proceedings will continue to be live-streamed unless the presiding judge orders the recording to be paused or suspended;

7. To give full effect to the process of live-streaming, advocates addressing the Bench, and judges addressing the Bar, must use microphones, while addressing the Court;

8. Recording of courtroom proceedings shall be done by the Registry with the technical support of National Informatics Centre or any other public/private agency authorized by the Supreme Court or the Ministry of Information and Technology; and

9. The portions of proceedings which are not broadcast online, on the direction
of the presiding judge of the Bench shall not be made part of the official records and shall be placed separately as ‘confidential records’.

C. Technical specifications for live-streaming

1. Live-streaming shall be conducted by the Supreme Court with its own camera-persons or by an authorized agency. No person who is not authorized by the Supreme Court will be permitted to record any proceeding;

2. Cameras should be focused only on the judges and advocates pleading before the Bench in the matter being live-streamed;

3. Cameras shall not film the media and visitor’s galleries;

4. Cameras may zoom in on the Bench when any judge is dictating an order or judgment or making any observation or enquiry to the advocate; and

5. The following communications shall not be filmed:
a) Discussions among the judges on the Bench;

b) Any judge giving instructions to the administrative staff of the courtroom;

c) Any staff member communicating any message to the judge or circulating any document to the judge;

d) Notes taken down by the judge during the court proceedings; and

e) Notes made by an advocate either on paper or in electronic form for assistance while making submissions to the court.

D. Archiving

1. The audio-visual recording of each day’s proceedings shall be preserved in the Audio-Visual Unit of the Supreme Court Registry;

2. Archives of all broadcasts of courtroom proceedings which have been live-streamed should be made available on the website of the Supreme Court; and

3. Hard copies of the video footage of past proceedings may be made available according to terms and conditions to be notified by the Supreme Court Registry. The video footage shall be made available for the sole purpose of fair and accurate reporting of the judicial proceedings of the Supreme Court.

E. Broadcast Room
1. The Registry will make one or more rooms or a hall available within the premises of the Supreme Court for the purpose of broadcasting the proceedings. Multiple screens along with the other necessary infrastructural facilities shall be installed, for enabling litigants, journalists, interns, visitors and lawyers to view the courtroom proceedings in the broadcast room(s). Special arrangements will be made for the differently abled.

F. Miscellaneous

1. The Supreme Court shall hold exclusive copyright over videos streamed online and archived with the Registry; and

2. Re-use, capture, re-editing or redistribution, or creating derivative works or compiling of the broadcast or video footage, in any form, shall not be permitted except as may be notified in the terms and conditions of use and without the written permission of the Registry.

Simultaneously, he clarified that the model guidelines were of a suggested nature and would not detract from the authority of the Court to frame Rules under Article 145(1) in order to determine all the modalities.

As a result, the Supreme Court allowed the writ petitions with the aforementioned observations and hoped that the relevant rules will be formulated expeditiously and the first phase project executed in right earnest by all concerned. [Swapnil Tripathi v. Supreme Court of India,2018 SCC OnLine SC 1667, decided on 26-09-2018]

25% husbands net salary just & proper awarded maintenance to wife : SC

The Supreme Court, in Kalyan Dey Chowdhury vs Rita Dey Chowdhury, has upheld a Calcutta High Court observation, which by relying on a judgment of the apex court, had held that 25 per cent of the husband’s net salary would be just and proper to be awarded as maintenance to the wife.

The high court, in the instant case, observing that the net salary of the husband was Rs. 95,000 per month, enhanced the maintenance amount to Rs. 23,000 per month. This was assailed before the apex court.

A bench comprising Justice R Banumathi and Justice Mohan M Shantanagoudar observed that the amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance and it is always dependent on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors.

The court also upheld the observation made by the high court, referring to Dr Kulbhushan Kumar vs Raj Kumari and Anr, wherein it held that 25 per cent of the husband’s net salary would be just and proper to be awarded as maintenance to the wife.

“However, since the appellant has also got married second time and has a child from the second marriage, in the interest of Page 9 justice, we think it proper to reduce the amount of maintenance of Rs. 23,000 to Rs. 20,000 per month as maintenance to the respondent-wife and son,” the bench said while partly allowing the appeal.

Kalyan Dey Chowdhury Vs Rita Dey Chowdhury Nee Nandy, SC -CA -5369 of 2017

Directions regarding the registration of FIR, arrest and bail in cases under Section 498-A IPC reiterated and modified: SC

Supreme Court: The Bench comprising of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ., while disposing of a writ petition related to Section 498-A IPC, modified the directions concerning registration of FIR, arrest and bail under the said section as given in a recent judgment in Rajesh Sharma v. State of U.P., 2017 SCC OnLine SC 821.

The writ petition, under Article 32 of the Constitution, was filed seeking directions to the respondents to create an enabling environment for married women subjected to cruelty to make informed choices and to create a uniform system of monitoring and systematically reviewing incidents of violence against women under Section 498-A IPC including their prevention, investigation, prosecution and rehabilitation of the victims and their children at the Central, State and District levels. That apart, prayer was made to issue a writ of mandamus to the respondents for a uniform policy of registration of FIR, arrest and bail in cases of Section 498-A IPC in consonance with the law of the land, i.e., to immediately register FIR on complaint of cruelty and harassment by married women as per the IPC. It is worthy to note here that during the pendency of the instant petition, the judgment was pronounced in Rajesh Sharma. During the course of proceedings, learned Amicus Curiae submitted that the said decision requires reconsideration.

The Supreme Court, in order to adjudicate on the petition, perused scheme and object of Section 498-A as well as guidelines laid down in D.K. Basu v. State of W.B., (1997) 1 SCC 416 and also Lalita Kumari v. State of U.P, (2014) 2 SCC 1 wherein the Court opined that the scope of preliminary enquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. On perusal of directions in Rajesh Sharma, the Court found that it directed constitution of the Family Welfare Committees by the District Legal Services Authorities and prescribed the duties of the Committees. The prescription of duties of the Committees and further action therefor, in Court’s view, were beyond the Code and the same did not really flow from any provision of the Code. It was stated that there could be no denial that there has to be just, fair and reasonable working of a provision. The legislature, in its wisdom, has made the offence under Section 498-A IPC cognizable and non-bailable. The fault lies with the investigating agency which sometimes jumps into action without application of mind. In the aforesaid analysis, the Court declared the directions pertaining to Family Welfare Committee and its constitution by the District Legal Services Authority and the power conferred on the Committee is impermissible. Therefore, it is appropriate to direct that the investigating officers be careful and be guided by the principles stated in Joginder Kumar v. State of U.P., (1994) 4 SCC 260; D.K. Basu; Lalita Kumari and Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273. It was thought appropriate to direct the Director General of Police of each State to ensure that investigating officers who are in charge of investigation of cases of offences under Section 498-A IPC should be imparted rigorous training with regard to the principles stated by the Court relating to arrest. In view of the aforesaid premises, the direction contained in paragraph 19(i) as a whole was not in accord with the statutory framework and the direction issued in paragraph 19(ii) shall be read in conjunction with the directions given by the Court. Direction No. 19(iii) was modified to the extent that if a settlement is arrived at, the parties can approach the High Court under Section 482 CrPC and the High Court, keeping in view the law laid down in Gian Singh v. State of Punjab, (2012) 10 SCC 303 , shall dispose of the same. The petition was accordingly disposed of. [Social Action Forum for Manav Adhikar v. Union of India,2018 SCC OnLine SC 1501, decided on 14-09-2018]

Aadhar Act, 2016 constitutional not violative of right to privacy; linking of Aadhar with mobile phone number, bank account not mandatory: SC

Supreme Court: In a 1448-pages detailed judgment, the 5- Judge Bench comprising of CJ Dipak Misra and A.K. Sikri, A.M. Khanwilkar, Dr D.Y. Chandrachud and Ashok Bhushan, JJ., by a majority of 4:1, declared the Aadhar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 to be valid and not violative of the fundamental right to privacy. However, certain orders and/or circulars making the citing of Aadhar number mandatory have been held unconstitutional and struck down. Justice Sikri delivered the leading opinion for CJ Dipak Misra and himself and A.M. Khanwilkar, J. While Justice Chandrachud delivered a dissenting opinion and Justice Bhushan also delivered a separate opinion in which he broadly agreed with A.K. Sikri, J.

The leading issue was whether Aadhar Act violates the right to privacy? The Court, per majority, answered in the negative. Justice Sikri stated all matters pertaining to an individual do not qualify as being an inherent part of right to privacy. Only those matters over which there would be a reasonable expectation of privacy are protected by Article 21. The Aadhar scheme is backed by the statute, i.e., the Aadhar Act. It also serves legitimate State aim, which can be discerned from the Introduction to the Act as well as the Statement of Objects and Reasons which reflect that the aim in passing the Act was to ensure that social benefit schemes reach the deserving community. Aadhar Act meets the test of proportionality. The inroads into the privacy rights where these individuals are made to part with their biometrics information, is minimal. It is coupled with the fact that there is no data collection on the movements of such individuals, when they avail benefits under Section 7 of the Act thereby ruling out the possibility of creating their profiles. The Aadhar Act meets the test of balancing as well. As far as subsidies, services and benefits are concerned, their scope is not to be unduly expanded thereby widening the net of Aadhar, where it is not permitted otherwise.

The salient points regarding constitutionality of the Aadhar Act, 2016 and incidental issues are delineated hereinafter; also, the provisions, orders or circulars that have been struck down or read down or clarifies are mentioned:

A.K. Sikri, J. (for CJ Dipak Misra and himself and A.M. Khanwilkar, J.)

Adhar project does not create surveillance State; this is ensured by the manner in which the project operates. Security measures, as per the provisions of Section 29 (3) read Section 38 (g) as well as Regulation 17 (1)(d) of the Authentication Regulations, are strictly followed and adhered to.
Section 7 is the core provision of the Aadhar Act and it satisfies the condition of Article 110 of the Constitution. Thus, the Aadhar Act was validly passed as Money Bill.
Section 139-AA of the Income Tax Act, 1961 which mandates quoting of Aadhar for filing IT Returns and applications for PAN is not violative of the right to privacy. It satisfies the test of permissible limits and therefore is not unconstitutional.
Rule 9 of the Prevention of Money Laundering (Maintenance of Records) Rules, 2005 which mandates linking of Aadhar with bank accounts in its present form does not meet the test of proportionality, violates the right to privacy.
Circular dated 23 March 2017, mandating linking of Aadhar with mobile number held to be illegal, unconstitutional and thereby was quashed.

Clarification of a few provisions:

Authentication records are not to be kept beyond period of six months.
Metabase relating to transaction held to be impermissible; needs amendment.
Section 33(1) read down; an individual whose information is sought to be released, shall be afforded an opportunity of hearing.
Section 57 partially unconstitutional insofar as it enables body corporate or individual to seek authentication.
Benefits and services as mentioned in Section 7 should be those which have the colour of same kind of subsidies etc., namely, welfare schemes of the Government whereby Government is doing out such benefits which are targeted at a particular deprived class. It would cover only those benefits etc. the expenditure whereof has to be drawn from the Consolidated Fund of India. On that basis, CBSE, NEET, JEE, UGC etc., cannot make the requirement of Aadhar mandatory as they are outside the purview of Section 7 and are not backed by any law.
For enrollment of children under Aadhar Act, it would be essential to have consent of their parents. On attaining majority, they would have the option to exit from the project.
Requirement of Aadhar not to be mandatory for school admission of children as it is neither a service nor subsidy.
Dr D.Y. Chandrachud, J., gave a 23-points conclusion to the opinion wherein he dissented from the majority. In his opinion, the entire Aadhar programme, since 2009, suffers from the constitutional infirmities and violations of fundamental rights. The enactment of the Aadhar Act does not save the Aadhar project. The Aadhar Act, the Rules and Regulations framed under it, and the framework prior to the enactment of the Act are unconstitutional.

The opinion of Justice Chandrachud can be summarized in the following paragraph as stated by the dissenting Judge himself:

“Creating strong privacy protection laws and instilling safeguards may address or at the very least assuage some of the concerns associated with the Aadhar scheme which severely impairs informational self-determination, individual privacy, dignity and autonomy. In order to uphold the democratic values of the Constitution, the government needs to address the concerns highlighted in this judgment which would provide a strong foundation for digital initiatives, which are imminent in today’s digital age. However, in its current form, the Aadhar framework does not sufficiently assuage the concerns that have arisen from the operation of the project…”

Ashok Bhushan J., divided the batch of cases into two parts, firstly, the challenge to Executive’s Scheme dated 28 January 2009 notified by the Government of India, by which the Unique Identification Authority of India was constituted to implement the UIDAI Scheme, and secondly, challenge to the Aadhar Act, 2016. The learned Justice broadly agreed with the leading opinion of Justice Sikri. However, Rule 9 of the Prevention of Money Laundering (Maintenance of Records) Rules, 2005 which is struck down as violative of right to privacy by A.K. Sikri J., was upheld by Ashok Bhushan, J.

In view of the aforesaid discussion and observations, the writ petitions, transferred cases, special leave petition, contempt petitions and all the pending applications were accordingly disposed of. [K.S. Puttaswamy v. Union of India (Aadhar-5 Judge), 2015 SCC Online SC 1642, decided on 16-09-2018]

Section 497 IPC ‘deprives women of dignity’ – Adultery decriminalised and held unconstitutional: SC

Supreme Court: A five-Judge Constitution Bench consisting of CJ Dipak Misra, R.F Nariman, A.M Khanwilkar, Dr D.Y Chandrachud and Indu Malhotra, JJ., pronounced the verdict for reconsideration of the judgments on the constitutional validity of Section 497 IPC that brings adultery into the box of criminalisation.

Legal subordination of one sex by another is wrong. Social progression of women and views of Justice Nariman in Triple Talaq case considered. Adultery can be grounds for dissolution of marriage: CJ Dipak Misra

CJ and Khanwilkar J., said that mere adultery cannot be a crime, but if any aggrieved spouse commits suicide because of life partner’s adulterous relation, then if evidence produced, it could be treated as an abetment to suicide

Section 497 of the Penal Code is unconstitutional: CJ Dipak Misra

R F Nariman J.: Concurred with the opinion of CJ Dipak Misra. Section 497 of IPC has lost its rationale. It is manifestly arbitrary.

Dr D.Y. Chandrachud, J. : Section 497 is based on a notion that a woman loses her agency upon marriage. Human sexuality is essential aspect of identity of an individual.

Dr D.Y. Chandrachud, J. Section 497 is based on gender stereotypes. Violative of Article 15. Also violative of Articles 14 and 21. Declared as unconstitutional.

Indu Malhotra J., : Section 497 IPC makes two classification. Who can prosecute and who can be prosecuted. Law that perpetuate stereotypes and institutionalises discrimination is unconstitutional. Section 497 IPC is violative of Articles 14, 15 and 21 of the Constitution and therefore struck down.

Insolvency and Bankruptcy Code, 2016 prevails over SARFAESI Act, 2002: NCLAT

National Company Law Appellate Tribunal (NCLAT): A two-member bench comprising of Justice S.J. Mukhopadhaya, Chairperson and Justice Bansi Lal Bhat, Member (Judicial), dismissed an appeal filed by the Financial Creditor, holding it to be sans merit.

The appeal was filed by the appellant Bank (Financial Creditor) against the order passed by the National Company Law Tribunal, Chennai whereby and whereunder the application preferred by the Operational Creditor under Section 9 of Insolvency and Bankruptcy Code, 2016 against the Corporate Debtor was admitted, order of moratorium was passed and name of the Interim Resolution Professional was called for. It was submitted that the Bank had taken possession of certain lands of the Corporate Debtor, and therefore, the Corporate Debtor colluded with the Operational Creditor to file the application under Section 9.

The National Company Law Appellate Tribunal rejected the submission of the Bank in absence of evidence. Moreover, NCLT could not have decided the issue of collusion which could only be decided by a Court of competent jurisdiction. The contentions regarding insufficiency in service of Demand Notice to the Corporate Debtor were also rejected as the Corporate Debtor itself did not raise any such objection. It was observed that as per the Supreme Court decision in Innoventive Industries Ltd. v. ICICI Bank, (2018) 1 SCC 407, if the application under Section 9 is complete and there is no existence of dispute and there is a debt and default, then the Adjudicating Authority (NCLT) is bound to admit the application. The Appellate Tribunal also noted that the appellant Bank had already taken steps under Securitisation and Reconstruction of Financial Assets and Enforcement of Interest Act, 2002. It was held, however, that such action could not continue as I&B Code prevails over SARFAESI Act. In the result, the appeal filed by the Bank was dismissed. [Canara Bank v. Sri Chandramoulishvar Spg. Mills (P) Ltd.,2018 SCC OnLine NCLAT 389, order dated 03-08-2018]

The Negotiable Instruments (Amendment) Act, 2018 

The Negotiable Instruments (Amendment) Act, 2018 was notified on 02-08-2018.

The following amendments have been made —

  • Section 143 — now introduces a new proviso 143A, giving power to a Court to try an offence under S. 138 to order the drawer of cheque to pay interim compensation to the complainant in summary trials/summons case where he pleads not guilty to the accusations in the complaint. Furthermore, the interim compensation shall not exceed 20 % of amount of the cheque and shall be payable within 60 days from date of the order.
  • Recovery of fine shall be same as under Section 421 of the Code of Criminal Procedure, 1973.
  • In cases of acquittal, the Court is now empowered to direct the complainant to repay to the appellant the amount so released, at interest rates as prescribed by RBI.
  • Section 148 — now empowers the appellate court, for appeals against conviction under S. 138, to direct the appellant to deposit a minimum 20 % of the fine/compensation awarded, in addition to interim compensation paid under S. 143A.

Cabinet approves DNA Technology (Use and Application) Regulation Bill, 2018

The Union Cabinet has approved The DNA Technology (Use and Application) Regulation Bill, 2018.

Details of the Bill:.

The primary intended purpose for enactment of “The DNA Technology (Use and Application) Regulation Bill” is for expanding the application of DNA-based forensic technologies to support and strengthen the justice delivery system of the country.
The utility of DNA based technologies for solving crimes, and to identify missing persons, is well-recognized across the world.
By providing for the mandatory accreditation and regulation of DNA laboratories, the Bill seeks to ensure that with the proposed expanded use of this technology in the country, there is also the assurance that the DNA test results are reliable and the data remain protected from misuse or abuse in terms of the privacy rights of our citizens.
Speedier justice delivery.
Increased conviction rate.
Bill’s provisions will enable the cross-matching between persons who have been reported missing on the one hand and unidentified dead bodies found in various parts of the country on the other, and also for establishing the identity of victims in mass disasters.
Background: Forensic DNA profiling is of proven value in solving cases involving offences that are categorized as affecting the human body (such as murder, rape, human trafficking, or grievous hurt), and those against property (including theft, burglary, and dacoity). The aggregate incidence of such crimes in the country, as per the statistics of the National Crime Records Bureau (NCRB) for 2016, is in excess of 3 lakhs per year. Of these, only a very small proportion is being subjected to DNA testing at present. It is expected that the expanded use of this technology in these categories of cases would result not only in speedier justice delivery but also in increased conviction rates, which at present is only around 30% (NCRB Statistics for 2016).

Cabinet

LG, Delhi is bound by “Aid and Advice” of the Council of Ministers of the Delhi Government: SC

“Lieutenant Governor and the Council of Ministers must attempt to settle any point of difference by way of discussion and dialogue.”

Supreme Court: The 5-Judge Constitutional Bench delivered a 535-page long Judgment in the much-hyped case requiring adjudication on the Constitutional matter of ‘statehood’ to NCT of Delhi. There was coalescence in views of the Hon’ble Judges, who in their separate opinions held that the real power for the administration of the Capital lies with the democratically elected Government of NCT of Delhi.

The appellant was before the Supreme Court, challenging the decision passed by the Delhi High Court dated 04-08-2016. The High Court had negatived appellant’s claim that status of the voters of NCT of Delhi, after 69th Constitutional Amendment, has moved from notional to real. The present reference to the Supreme Court invited the interpretation of Article 239AA of the Constitution that provides special status to the Capital. The appellant-Government of NCT of Delhi was represented by a battery of lawyers including Senior Advocates P. Chidambaram, Gopal Subramanium, Rajiv Dhawan, Indira Jaising and Shekhar Naphade. They contended that insertion of Article 239AA was intended to eradicate the hierarchical structure which functionally placed the LG in a superior position to that of the Council of Ministers. Maninder Singh, learned Additional Solicitor General of India, advanced arguments on behalf of the Respondent-Union of India and the LG. He argued that though Article 239AA envisages constitution of Legislative Assembly for the Capital, yet the President remained its Executive Head who exercised powers through LG.

A summary of conclusions as reached by the Hon’ble Judges in their separate opinions is mentioned hereinafter:

Dipak Misra, CJI for himself and A.K. Sikri and A.M. Khanwilkar, JJ.

Our Constitution contemplates a meaningful orchestration of federalism and democracy.
Union and State Government must embrace a collaborative federal architecture.
In light of NDMC v. State of Punjab, (1997) 7 SCC 339, it was clear that NCT of Delhi could not be accorded the status of ‘State’ under the present Constitutional scheme.
An interpretative dissection of Article 239AA reveals that both the Union and the State Government exercise power of making laws according to the Union, State, and Concurrent lists.
The words “aid and advice” employed in Article 239AA(4) mean that LG is bound by aid and advice of the Council of Ministers unless he exercises his power under the proviso.
Exercise of power under the proviso for reference of the matter to the President has to be done in exceptional cases only.
Decisions of Council of Ministers must be communicated to LG but that does not mean that his concurrence is required.
Dr D.Y. Chandrachud, J.

Article 239AA represent a clear mandate of the Constitution to provide institutional governance founded on participatory, representative and responsive government.
If the expression ‘any matter’ mentioned in proviso to Article 239AA were to be read as ‘every matter’, it would lead to the President assuming administration of every aspect of the affairs of the Union Territory, thereby resulting in the negation of constitutional structure adopted for governance of the Capital.
The LG acts on the “aid and advice” of Council of Ministers; this recognizes that real decision making authority in a democratic form of government vests in the Executive.
Ashok Bhushan, J.

Executive power is coextensive with the legislative power. The policy of legislation can be given effect to only by executive machinery.
Legislative Assembly of NCT of Delhi represents views of elected representatives; their decisions have to be respected except where LG decides to make a reference to the President.
From persons holding high office, it is expected that they shall conduct themselves in the faithful discharge of their duties so as to ensure the smooth running of administration so that rights of all can be protected.
This matter traveled to the present Bench when a 2-judge bench comprising of A.K. Sikri and R.K. Agrawal, JJ. referred the matter to a Constitution Bench as substantial questions of law were involved. The reference was answered in the above terms and was further directed to be placed before appropriate regular Bench. [Government (NCT of Delhi) v. Union of India, Civil Appeal No. 2357 of 2017, decided on 04-07-2018]