Supreme Court’s historic judgement

In an unanimous decision, the Supreme Court has held that the right to privacy is a fundamental right protected under Article 21 of the Constitution of India, thereby settling a hugely controversial issue raised by the Government of India. This issue arose in a bunch of petitions challenging the validity of Aadhar, and its linkages with the government benefits provided to the poor and marginalised sections of the society. During the proceedings, the Government argued that there was no fundamental right to privacy guaranteed in the Constitution, since the earlier decisions of M.P. Sharma (8 judges bench, 1954) and Kharak Singh (6 judges bench, 1964) had rejected the plea of the right to privacy, and the later judgments expounding on privacy had overlooked these binding decisions. Accordingly, the matter was referred to a five judges bench in October, 2015, who then referred it to a nine judges bench in July, 2017. Though the nine judges had different reasons, but the conclusion of all the opinions was that right to privacy is an intrinsic part of life and liberty of an individual, and other fundamental freedoms guaranteed in the Constitution.
The main judgment is written by Justice Dr. D.Y. Chandrachud, which is agreed by three other judges, including the former Chief Justice of India, J.S. Kehar. Other five judges have written five separate opinions. While overruling MP Singh, J. Chandrachud observed that privacy is a concomitant of the right of the individual to exercise control over his or her personality. It is traced to the fact that there are certain rights which are natural to or inherent in a human being. Natural rights are inalienable because they are inseparable from the human personality. He further stated that the need to protect the privacy of the being is no less when development and technological change continuously threaten to place the person into public gaze and portend to submerge the individual into a seamless web of inter-connected lives. J. Chandrachud then expressly overruled the infamous judgment of A.D.M. Jabalpur that had upheld the suspension of fundamental rights during the Emergency in 1976, while disagreeing with the reasoning of the decision in Suresh Kumar Koushal that upheld Section 377, Indian Penal Code, which prohibits homosexual acts in India. He went on to remark that privacy includes preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.
Justice Bobde held that right to privacy was bound up inextricably with exercise of human liberty and is guaranteed by Article 21, which is the reservoir of the remaining rights. Any interference by the State has to stand the test of fundamental rights. Justice Nariman highlighted India’s international obligations and pointed out that India had to guarantee these rights under various international covenants and overruled the decision in ADM Jabalpur. Justice Chelameshwar also recorded his reasons for agreement with the other judges.
But the judgment did point out that any fundamental right cannot be absolute and has to be subject to certain reasonable restrictions. [Justice K S Puttaswamy (Retd.) v Union of India, Writ Petition (Civil) No. 494 of 2012, date of judgment: 24.08.2017]
Major Court Decisions:

i. Supreme Court sets Aside Triple Talaq: A constitution bench of the Supreme Court declared that the practice of divorce by triple talaq will have no legal effect. The bench was split 3-2, with former Chief Justice of India Justice J.S. Khehar leading the dissent. While two judges in the majority (Justices Rohington Nariman, and U.U. Lalit) held that the practice was arbitrary, primarily as it allowed a man to unilaterally change the marital status of a woman on his whims or fancies. The third judge (Justice Kurien) held that triple talaq was not approved in Shariat, not an essential religious practice for Islam and could not be protected by the Constitution. The three judgments read together led to the practice of Triple Talaq being set aside and not having legal sanctity [Shayara Bano v Union of India, Writ Petition (C) No. 118 of 2016, date of judgment: 22.08.2017].

ii. Evidence in Gujarat riots cases to be recorded through video conferencing: The Supreme Court has ordered that the pending cases Gujarat riot cases, relating to Gulbarga Society and Naroda Gaon, be concluded expiditiously, given that 15 years had passed since the riots. The Gulbarga society case involves the trial of four juveniles and is still pending before the juvenile court. The second, the Naroda Gaon case is at the evidence stage and since one of the witnesses lives abroad, the Court directed the authorities to record evidence through video conferencing to expedite the process. [National Human Rights Commission v State of Gujarat, Writ Petition (Criminal) 109/2003, date of order: 22.08.2017]

iii. Plea against appointment of J. Dipak Misra as Chief Justice dismissed: Baba Omji of Big Boss fame has been fined a sum of Rs. 10 lakh by the Supreme Court for filing a frivolous PIL against the appointment of Justice Dipak Misra as the next Chief Justice of India. The challenge was based on the argument that the convention of the incumbent Chief Justice of India recommending the next in line of seniority did not find mention in the Constitution. The bench headed by the then Chief Justice, Justice Kehar, observed that the the petition was a publicity stunt and fined each individual petitioner[Swami Om Ji v. Union of India, Writ Petition (C) 748 of 2017, order dated 24.08.2017].

iv. Prasar Bharti forbidden from relaying live sporting events to private cable TV operators: The Supreme Court ordered Prasar Bharati to not re-transmit the live feed of sporting events to private TV cable operators. The Court held that the feed can only be relayed to DTH networks and its own networks. It held that the content rights were owned by the BCCI and sold to ESPN/Star. Prasar Bharati could only transmit the signal shared with it to DD Kendras and DTH networks and not to private operators, which lead to a great loss in revenue for ESPN/Star [Union of India v Board of Control for Cricket in India, Civil Appeal No.(s) 10732-33 of 2017, data of judgment: 22.08.2017].

v. Lt. Colonel Purohit gets bail: Lt. Colonel Shrikant Purohit was released on bail by the Supreme Court. Purohit is an accused in the Malegaon blast case. The Bombay High Court had previously declined his plea for bail. He appealed to the Supreme Court, arguing that he was a mole and was not involved in any terrorist activity. Despite the fact that Purohit was in jail for nine years, no charge sheet has been filed against him yet [Lt. Col. Prasad Shrikant Purohit v State of Maharashtra, Criminal Appeal No. 1448 of 2017, date of order: 21.08.2017]. (IPA/To be continued)

Wednesday, 6 September, 2017