Showing posts with label Judgements. Show all posts
Showing posts with label Judgements. Show all posts

Introduction to Section 377 of the Indian Penal Code

Section 377 of the Indian Penal Code, 1860 deals with unnatural offences. The literal elucidation of this section implies that it makes buggery, sodomy, pedication, bestiality, paedophilia, tyke sexual abuses and homosexuality punishable by law. Thus, it prohibits every kind of sexual intercourse excluding the heterosexual penile-vaginal intercourse. In addition to that, the consent of the individuals who are part of the intercourse is immaterial in such cases. This section has attracted a lot of disagreement, argument, and contention resulting in controversy over the past decade and the demand to decriminalise homosexuality. The first petition for this cause was filed in the year 1994 by AIDS Bhedbhav Virodhi Andolan.
Timeline-
1861 → Section 377 of the Indian Penal Code, 1860 was introduced by the British India.
2009 → NAZ Foundation vs. Government of NCT Delhi
2013 → Suresh Kumar Koushal vs. NAZ Foundation
2014 → NLSA vs. Union of India and others
2017 → Justice Puttaswamy vs. Union of India
2018 → Navjot Singh Johar vs. Union of India

Definition of Section 377 in the Indian Penal Code

Section 377 of the Indian Penal Code, 1860 states-
Unnatural offences- Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

Landmark Judgements related to Homosexuality in India

NAZ Foundation vs. Government of NCT Delhi, 2009

This case is also known as the ‘NAZ Foundation Case’. NAZ Foundation is an NGO which deals with health issues such as HIV, AIDS, etc.
This case raised an issue, whether to remove Section 377 of the Indian Penal Code, 1860 or not. The court dealt with this issue with two aspects.
Firstly, it laid down Article 21 of the Constitution of India, 1949, Right to life and stated that without dignity and privacy no individual can enjoy their Right to Life. Secondly, it laid down Article 14 of the Constitution of India, 1949 and Article 15 of the Constitution of India, 1949, Right to Equality and stated that Section 377 of the Indian Penal Code, 1860 is violative of Article 14 of the Constitution of India, 1949 as it unreasonably discriminates homosexuals as a class and criminalises their consensual intercourse. Moreover, discrimination based on sex is prohibited and violative of Article 15 of the Constitution of India, 1949. The term ‘sex’ used in Article 15 of the Constitution of India, 1949 does not only include biological sex but also sexual orientation.
The Delhi High Court held, the part of Section 377 of the Indian Penal Code, 1860 which criminalises homosexual act shall be declared unconstitutional. However, to amend or not to amend was left on the discretion of the Parliament. 

Suresh Kumar Koushal vs. NAZ Foundation, 2013

In this case, two arguments were raised. Firstly, homosexuality is a criminal offence, only parliament has the authority to decriminalise it and courts cannot interfere in this matter. Secondly, the right to privacy cannot be extended to such an extent that an individual can commit an offence under it.
It was held, the right to privacy does not cover homosexual acts.

NLSA vs. Union of India and others, 2014

This case is also known as the ‘Transgender Case’. In this case, a loophole was recognised which laid down that all the existing Indian laws only focuses on binary genders, which is either male or female and no provision is enacted for protecting the rights of the transgender community. As a result of which the transgender community has been continuously discriminated.
The Supreme Court recognised multi-faceted rights for the transgender community to deal with this loophole. This case gave the transgenders the right to self-identify their gender, equal treatment to all people, and legal recognition of gender identity.

Justice K.S. Puttaswamy vs. Union of India, 2017

This case is also known as the ‘Privacy Case’. In this case, the Supreme Court affirmed that the right to privacy is a fundamental right. To decide upon this case a bench of nine judges was constituted and over-ruled M.P. Sharma case and Kharak Singh case.
Justice Chandrachud said that this case is an opportunity for the Supreme Court to rectify its mistake committed in Suresh Kumar Koushal’s case. He further stated that sexual orientation is an essential attribute of privacy and is protected under many rights of Part 3 of the Constitution of India, 1949.

Navjot Singh Johar vs. Union of India, 2018

In this case, Section 377 of the Indian Penal Code, 1860 was partially declared as unconstitutional. The judgement was delivered on 6th September 2018 and de-criminalised all consensual sex among adults in private, including homosexual sex. This case composed of a constitutional bench of five judges namely Chief Justice of India (CJI) Deepak Misra, Justice Indu Malhotra, Justice Rohinton Nariman, Justice A.M. Khanwilkar, and Justice D.Y. Chandrachud.
The Supreme Court took the support of Article 14 of the Constitution of India, 1949 and stated that to criminalise consensual sex of two adults based on their homosexuality is neither a valid intelligible differentia nor a rationale nexus. It was further stated that such ambiguous and subjective norms based on morality shall be given up by the society.
The Supreme Court took Article 15 of the Constitution of India, 1949 as contention and stated that during the case of NAZ Foundation, the Delhi High Court’s approach which said ‘sex’ includes both biological sex and sexual orientation is appropriate, and this approach reflects the improved understanding.
Justice Chandrachud supported Article 19 of the Constitution of India, 1949 and stated that human sexuality cannot be defined narrowly and discrimination under LGBT ( Lesbian, Gay, Bisexual, Transgender) is unconstitutional. Article 19 of the Constitution of India, 1949 protects the right of every individual and allows them to express their identity with full freedom.

Lastly, the Supreme Court took the support of Article 21 of the Constitution of India, 1949 and stated that the right to life and liberty includes privacy, dignity, and autonomy. However, these rights can be curtailed by putting reasonable restrictions but not be applying Section 377 of the Indian Penal Code, 1860.
Rights recognised by the Supreme Court for the Transgender Community
The Supreme Court stated that under Article 14 of the Constitution of India, 1949, rights of all individuals are protected, it includes men, women, and transgender.
The Supreme Court stated that under Article 15 of the Constitution of India, 1949 and Article 16 of the Constitution of India, 1949, discrimination based on gender is prohibited. Thus, if there is any kind of discrimination based on sexual orientation then it is violative of Article 15 of the Constitution of India, 1949 and Article 16 of the Constitution of India, 1949.

The Supreme Court stated that Article 19(1)(a) of the Constitution of India, 1949 protects privacy, gender identity, integrity, etc. And, Section 377 of the Indian Penal Code, 1860 can also be protected under this Article.
The Supreme Court stated Article 21 of the Constitution of India, 1949 and laid down that the right to live with dignity includes the right to choose gender identity.

Conclusion

Hence, this article discusses the entire event of Decriminalization of Section377 of Indian Penal Code, 1860 in India through 5 Landmark cases including the recent Important Judgments of Supreme Court Of India. This Article elucidates Article 14 of the Constitution of India, 1949, Right to Equality; The Test of Intelligible Differentia and Rational Nexus; Article 15 of the Constitution of India, 1949, Prohibition of Discrimination on the Ground of Sex - Biological Sex and Sexual Orientation; Article 19 of the Constitution of India, 1949, Freedom of Speech and Expression, Freedom to Express Personal and Gender Identity and Article 21 of the Constitution of India, 1949, Right to Life and Liberty with  Dignity - The Privacy Attribute.

References

Meaning of the term ‘Judgement’ 

The term ‘Judgement’ is the combination of two words which are judge and statement that can be described as an act of judging. Judgement is the result of judging. Section 2(9) of The Code of Civil Procedure, 1908 defines the term ‘Judgement’. Every judgement consists of certain facts related to the suit filed, the issues involved therein, the evidence submitted by the parties of the suit, and findings based on the evidence, arguments & issues. Every judgement acts as a precedent for future cases. It is an indispensable element of the judiciary. 



Major Landmark Judgements of 2019-2020

  1. CJI Sexual Harassment Case

In this case, an ex-staff of the Supreme Court alleged that the then Chief Justice of India (CJI) Ranjan Gogoi harassed him sexually. This allegation was made via a letter to 22 Supreme Court judges and coming upfront in the media. CJI Ranjan Gogoi replied to this allegation stating that this allegation is fabricated and is to undermine the independence of the judiciary. The Supreme Court bench of Arun Mishra, R.F. Nariman, and Deepak Gupta suo moto held that former Supreme court judge Justice A.K. Patnaik will hold an inquiry regarding an alleged conspiracy against CJI Ranjan Gogoi. Another inhouse panel was created to inquire about the sexual charge made against CJI Ranjan Gogoi. 

Both the panels gave a clean chit to the CJI Ranjan Gogoi but the reports of the panel were not made public due to which inquiry proceedings were widely criticised by several lawyer bodies as opaque and unfair. 

  1. Md. Siddiq(D) vs. Mahant Suresh Das (Ayodhya-Babri Land Dispute)

It is a 70-year-old case, the judgement of which was delivered on 9th November 2019. After the hearing of 40 continuous days, the Supreme Court unanimously held that the entire disputed land of 2.77 acres in Ayodhya must be handed over for the construction of Ram Mandir. Using its power under Article 142 of the Constitution of India, the Supreme Court held that an alternate plot of 5 acres must be allotted to the Sunni Waqf Board for construction of the mosque. The Supreme Court also observed that the destruction of Babri Masjid in 1992 was a violation of the law. The Act of placing idols beneath the central dome of the mosque in 1949 was an act of ‘Desecration’. 

  1. Indian Hotel and Restaurant Association (AHAR) vs. State of Maharashtra 

In the year 2016, the Government of Maharashtra enacted the ‘Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016’. After the enforcement of the Act, all the dance bars in Maharashtra were under the complete ban.

A case was filed and the Supreme Court held there cannot be a total prohibition of dance bars in Maharashtra. Moreover, dance bars were not to put CCTV inside the bars as they invade the Right to Privacy of an individual. But a CCTV at the entrance was made mandatory. This Act enacted by the Maharashtra Government contained a provision that stated that a dance bar can be opened only at a distance of a minimum of 1 km from the educational institutions. This provision was removed by the Supreme Court as it prohibits the Right to conduct business. The complete prohibition on serving alcohol is removed by the Supreme Court. The stringent conditions imposed by the Government for getting a license for dance bars were relaxed.  However, the showering of currency notes was banned. Thus, the blanket ban on Maharashtra dance bars overturned. 

  1. Indibily Creative Pvt. Ltd. vs. Government of West Bengal

This case is related to Article 19 of the Constitution of India. In this case, a Bengali film named ‘Bhobhishyoter Bhoot’ was declared as unofficial and a ban was imposed by the Government of West Bengal. Police authorities by citing law and order issued by the government had coerced the movie screens to withdraw the film.

The bench of the Supreme Court consisted of Justice C.Y. Chandrachud and Justice Hemant Gupta said ‘Free speech cannot be curtailed by fear of mob-violence’.

The Supreme Court stated that the police are not in a free society the self-appointed guardians of public morality cannot decide what is correct for the public to watch and vice-versa. The uniformed authority of their force is subject to the rule of law. Thus, the Supreme Court removed the ban imposed on the film and awarded the filmmakers with compensation of Rs.20,00,000/-. 

  1. Central Public Information Officer, Supreme Court vs. Subash Chandra Agarwal

In this case, the Supreme Court held that CJI falls under RTI that is Chief Justice is a public authority under the Right to Information Act. To support this judgement Justice C.Y. Chandrachud stated that it is necessary to put information related to how a judge is selected on a public domain i.e., putting information in the public realm. However, the Court also underlined the importance of maintaining confidentiality in some aspects of judicial administration. 

  1. Kantaru Rajeevaru vs. Indian Young Lawyers Association

This case is also known as the Sabarimala Review Petition Case. 

The original case was Indian Young Lawyers Association vs. State of Kerala, which was filed in the year 2006. A landmark judgement was delivered in the year 2018 with a majority of 4:1 and the prohibition of women entering into the Sabarimala temple was removed for all ages of women. Against which this case was filed namely, Kantaru Rajeevaru v. Indian Young Lawyers Association. 

The major issue stated is whether the Supreme Court has the authority to interfere in essential practices of religion or not. To examine this matter a larger bench was referred. By 3:2 CJI Ranjan Gogoi, J. Khanvilkar, and Indu Malhotra expressed that the issue of whether the Court can interfere in essential practices of religion needed examination by a larger bench. Justice Chandrachud and Justice Nariman dissented the idea of a larger bench as most of the issues have been discussed in the judgement of 2018. It was further stated by Rohinton Fali Nariman, let every person remember that the ‘holy book’ is the Constitution of India. 

  1. Anokhilal vs. State of Madhya Pradesh

In this case, the Supreme Court issued its guidelines which stated that any individual who is accused of a serious offence such as offences which are punishable with a life sentence or death then the advocates representing such accused shall have a minimum of 10 years of practice at the bar. 

  1. B.K. Pavitra and others vs. Union of India

Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (To the Posts in the Civil Services of the State) Act, 2018 was introduced to explain consequential seniority. 

This Act was challenged in this case. It was held that if once seniority is attained due to some consequences then it will be retained no matter what. The Supreme Court declared this Act as a valid exercise under Article 16(4A) of the Constitution of India.

In M. Nagaraj vs. Union of India, the Supreme Court held reservation in the promotion of government servants is not mandatory but it is left to the State’s discretion. Thus, the reservation of SC’s/ST’s in promotions upheld in the Karnataka Act.

  1. D.A.V. College Trust & Management Society vs. Director of Public Instructions

In this case, the Supreme Court has held that NGOs substantially financed, whether directly or indirectly, by the Government fall within the ambit of ‘public authority’ under Section 2(h) of the Right to Information Act, 2005. Thus, NGOs substantially financed by the Government will come under the RTI Act. 

  1. Bikram Chatterjee & others vs. Union of India & others

In this case, the RERA Registration of the Amrapali group was cancelled. 

The bench of Justice Arun Mishra and Justice U.U. Lalit found that the Amrapali group had siphoned off homebuyers money with the connivance of Greater Noida and Noida authorities.

The Supreme Court held the judgement in three-pointers, firstly, cancelled the registration of the Amrapali group under Real Estate (Regulation and Development) Act, 2016. Secondly, directed the National Building Construction Corporation (NBCC) to take over its pending construction projects in Greater Noida and Noida. Lastly, directed the Enforcement Directorate to take action against Amrapali’s director and authorities under the Prevention of Money Laundering Act (PMLA) and Foreign Exchange Management Act (FEMA) by filing a lawsuit.

  1. Yashwant Sinha and others vs. C.B.I. and others

During the ongoing hearing of this case, the petitioners released some of the documents which were protected under the Official Secrets Act. After such documents were released the issue which came into the picture was whether such documents will be admissible in the Court of law or not. The Court held that the Official Secrets Act does not prohibit any documents to be presented in the Court and thus the documents are admissible. However, a lawsuit can be initiated against the person who has obtained the documents without authorisation. Thus, the documents leaked from the Official Secrets Act are admissible in Court. 

  1. Manohar Lal Sharma vs. Narendra Modi

This case is related to the Rafael fighter jets deal. In this case, the Supreme Court held that there are no irregularities in the purchase of 36 Rafael fighter jets and no further inquiry is required.  

Conclusion 

Hence, judgements are delivered by various Courts but once a judgement is delivered by the Supreme Court it is the final one. A judgement delivered by the Supreme Court acts as a precedent to all other cases to be occurring in the future

References


This article is written by Sneha Mahawar from Ramaiah Institute of Legal Studies.
- Yashvardhan Pandey


Introduction

In this modern time, with the rapid growth in the technological field and the information technology, and increasing use of electronic devices such as, computers, mobile phones etc. any information can be move from one place to another within seconds. In this era of the modern technology electronic evidences are proved very crucial for any investigating agency. A need was realized that digital evidences must have access in the judicial procedure by some legally prescribed means. Information technology act 2000 was passed and certain amendments were also made in the Indian evidence act and mainly section 65A and 65B were incorporated which deals with the admissibility of electronic evidences. These sections primarily deal with the procedure to be followed in the admissibility of electronic records and at the end requires a certificate of authentication for furnishing of electronic evidences. Supreme court have also from time to time delivered the landmark judgements on the issue of the requirement of certificate. Recently, in the Arjun pandit rao case the apex court held that the certificate is a condition precedent for the admissibility of electronic records. 

Developing jurisprudence through the landmark judicial pronouncements

Over the years, judicial pronouncements have primarily disagreed on whether this certificate of authentication of electronic evidence is necessary or not. There are two views regarding the requirement of certificate. One view is that stricter procedures (such as a mandatory certificate) would prevent against tampered evidence being introduced. A contrary perspective views that the requirement of a mandatory certificate creates unnecessary procedural roadblocks, leading to delays in the judicial process, and potentially excluding important pieces of evidences.

A three judge bench of Supreme Court in 2014 overruled the Navjot Sandhu case [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600], and in the case of Anvar P.V vs. P.K basheer (2014) 10 SCC by three-judge bench of supreme court it was held that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible. Thus, in this case Supreme Court made the furnishing of certificate mandatory for the admissibility of electronic evidences. Since then, this Judgment became landmark on the issue as it authoritatively held that furnishing of Certificate under Section 65 B(4) is mandatory.

In 2015, in the case of Tomaso Bruno vs. state of U.P (2015) 7 SCC 178 the Apex Court observed that advancement of information technology and scientific temper must pervade the method of investigation and electronic evidence can be a great help to an investigating agency. Without giving no reference to Anvar case held that the content of an electronic record may also be proved by treating as a secondary evidence and the certificate will not be necessary.

In 2018, a two-judge bench of the Hon’ble Supreme Court in the case of Shafi Mohammad vs. State of Himachal Pradesh (2018) 2 SCC 801, , while deliberating upon the significance of videography as a crucial means of evidence in conjunction with the scope of applicability of procedural requirements under Section 65B(4) of the Indian Evidence Act, 1872 observed that a party, who is not in possession of a device which has produced an electronic document, cannot be required to produce a certificate under Section 65B(4) of the Act. It was further held that the requirement of producing a certificate can be relaxed by the court as long as authentic and relevant or if it is justified in the interest of justice.

Supreme court decision in the Arjun Pandit Rao case

Three judge benches of Supreme court comprising Rohinton Fali Nariman, S. Ravindra Bhat, V. Ramasubramanian in Arjun pandit rao khotkar vs. kailash kushanrao gorantyal and others (2020) 3 SCC 216 has made the following observations regarding the admissibility of electronic evidence and production of certificate for the authentication-

● It is mandatory for the party relying upon Electronic Evidence to produce the certificate required by Section 65B(4). Supreme court made it clear that certificate is the condition precedent for the admissibility of electronic records.

● The requirement under section 65B(4) will not be necessary if the original document is produced but where it is impossible to physically bring the system or network to the court then the electronic records can be produced only by the provisions under section 65B with the certificate.

● Where the Certificate is sought from the person or authority concerned and the person or the concerned authority refuses to give certificate and does not give any reply then the party can apply to the court. The Court may order the production of the Certificate by concerned Authority which will be bound to issue the same upon passing of such order.

● Section 65b is non obstante clause which is a special provision regarding the admissibility of electronic evidences then section 62 and 65 are relevant for this purpose.

● The Certificate should have been produced at the time of filing of document. However, if it could not be produced at that stage, it may be permitted to be produced later. But such later production of certificate should not prejudice the rights of the accused.

● The law laid down in Anvar P.V. case need not be revisited. However, the last sentence in paragraph 24 of the said judgment which reads as “if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act” is to be read without the words “under Section 62 of the Evidence Act”.

Whether the controversy is set at rest?

In Arjun Pandit Rao case Supreme court has failed to consider all preceding judicial decisions while laying down the law. As a result, it has widened the gap between two views - one that the certificate is a mere procedural requirement and the other that it is at the root of admissibility of electronic records. Further the judgment contains several internal contradictions on issues such the stage at which such a certificate ought to be produced. Overall, this longstanding judicial ambiguity around the admissibility of electronic evidence, may be a sign for the legislature to intervene and bring clarity to the law.

Conclusion

Now we can conclude that the Supreme Court in the recent judgement of arjun panditrao adopted the view of stricter procedure and made the certificate mandatory for the admissibility of electronic evidence in order to prevent the tempered evidence which may be produced in the court. Finally, it may be observed Anvar P.V. v. P. K. Basheer is restored and Shafhi Mohammad is expressly overruled and all the judgments which followed Shafhi Mohammad and disregarded Anvar P.V. were held per in curium.

References
https://www.vidhiwise.in/admissibility-of-electronic-evidence-a-critical-analysis-of-arjun-panditrao-khotkar-v-kailash-kushanrao-gorantyal-and-others/
https://economictimes.indiatimes.com/news/politics-and-nation/courts-can-rely-on-electronic-records-without-certificate-supreme-court/articleshow/62777759.cms#:~:text=Section%2065(B)%20of%20Indian,evidence%20in%20any%20court%20proceedings.&text=Such%20party%20cannot%20be%20required,Act%2C%22%20the%20bench%20said.
http://ceac.in/wp/2018/04/18/shafhi-mohammad-final-judgement-on-section-65b-issue/
https://www.lexology.com/library/detail.aspx?g=d258e6dd-7a24-4d91-a28a-b3681e0c0148
https://indiankanoon.org/doc/172105947/
https://medcraveonline.com/FRCIJ/admissibility-of-electronic-evidence-an-indian-perspective.html