Category: Judgement Review

SC Judgement on Inheritance of Daughters

Reading time : 7 minutes

Recently, the Supreme Court (SC) has ruled that daughters will have equal rights to their father’s property even prior to the enactment of the Hindu Succession Act (HSA) of 1956. The case involved a dispute over the property of a person who died in 1949 having a Daughter who also died issueless in 1967.

Earlier, the trial court held that since the person had died prior to the enforcement of the Hindu Succession Act, 1956 therefore the petitioner and her other sisters were not the heirs as on date and not held for partition of shares of their property. But later on the supreme court dismissed the appeal against the trial court.

The Supreme Court has ruled that the property of a man who has died without executing a will and is survived only by a daughter will devolve upon the daughter and not others such as his brother. What was the case? How did SC come to this conclusion?

What is the case?

One Marappa Gounder died intestate in 1949 leaving behind a daughter, Kupayee Ammal, who also surpassed in 1967 issueless. Marappa has a brother known as Ramasamy Gounder. Gurunatha Gounder and four other daughters are the children of Ramasamy.

One of those daughters, Thangammal, sought legal intervention annoying a one-fifth percentage inside the property of Marappa.

She contented in court that once after Marappa’s loss of life, the assets become handed directly to  Kupayee Ammal, the man’s daughter, and after she died childlessly, it ended up with Ramasamy Gounder, Marappa’s brother, and that is how she is an heir and as a consequence, she’s entitled to a one-fifth share of the inheritance.

And on the other side, the children of Gurunath, who’s the son of Ramasamy, maintained that Kupayee Ammal had no right to inherit the property inside the first location. because Gurunath became the only inheritor to be had, they are the rightful heirs to the property.

What the Supreme Court said

A two-judge bench of Justices S Abdul Nazeer and Krishna Murari stated that “right of a widow or daughter to inherit the self-obtained assets or proportion obtained in the partition of coparcenary belonging of a Hindu male demise intestate is properly acknowledged now not only under the antique customary Hindu law” but additionally under preceding judicial pronouncements.

including, “if a property of a male Hindu dying intestate is a self-acquired asset or acquired in the partition of a co-parcenery or own family belonging, the equal might devolve through inheritance and no longer by means of survivorship, and a daughter of such a male Hindu might be entitled to inherit such property in preference to other collaterals”.

The court upheld that the Hindu Succession Act of 1956 shall apply considering the query of succession in the case simplest opened after the loss of life of Kupayee Ammal in 1967. sooner or later, Thangammal, the appellant, is described as an heir and is entitled to the only-5th percentage of the inheritance.

The judgment further clarified that if a girl Hindu dies intestate and childless, the property she inherited from her parent might go to the father’s heirs. And the belongings she received from her husband or father-in-law could go to the husband’s heirs.

And in case a woman Hindu dies leaving a husband behind, then the residences surpassed directly to the husband and her children might encompass the inheritance from her mother and father, in keeping with Hindu Succession Act.

The Supreme Court’s view and analysis

The issue, earlier than the Supreme Court, for consideration,  become whether or not the late Marappa Gounder’s sole surviving daughter Kuppayee Ammal could inherit the self-obtained property by inheritance or it’d devolve with the aid of survivorship, upon the father dying intestate, previous to the enactment of the Hindu Succession Act, 1956 (HSA).

Relating to customary Hindu law in addition to judicial pronouncements, the bench observed that the rights of female heirs, especially the wives and daughters are acknowledged in law.

The Court mentioned out that, in step with the Mitakshara law, the property of a Hindu male is devolved upon his death, keeping in mind the subsequent propositions:

“(1) Where the deceased was,  turned into, on the time of the death, a member of joint and undivided circle of relatives, technically referred as coparcenary, his undivided interest inside the coparcenary property belongings on his coparceners by using survivorship.

(2) (i) Even supposing the deceased was joint at the time of his death, he would have left self-acquired or separate property. Such property is going to his heirs by succession and not to his coparceners;

(ii) If the deceased became at the time of his death, the sole surviving member of coparcenary property, the whole of his property, including the coparcenary assets, will pass to his heirs by way of succession ;

(iii) If the deceased became separate on the time of his death from his coparceners, the whole of his property, including the coparcenary assets, will pass to his heirs by way of succession

(3) If the deceased turned into re-united at the time of his death, his property will pass to his heirs  with the aid of succession.”

The bench further held that in the case of Gopal Singh v Ujagar Singh,(1954), it became located with the aid of the ultimate courtroom that “the daughter succeeds to the self-obtained assets of her father in preference to collaterals”.

The courtroom, therefore, proceeded to preserve that if a belonging of a male Hindu demise intestate is a self-received property or received within the partition of a coparcenary or own family belonging, the same could devolve via inheritance and now not by using survivorship, and a daughter of this type of male Hindu would be entitled to inherit such property in choice to different collaterals.

The matter in the trial court and High Court

The trial court, dismissing Thangammal’s case in 1994, noted that since Marappa died before Hindu Succession Act, 1956 came into force, she and her sisters were not entitled as heirs to the inheritance. The High Court dismissed the appeal against the trial court in 2009.

The High Court dismissed the appeal against the trial court order in 2009.

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Studying older Hindu laws and judicial pronouncements

According to the supreme court the Mitakshara law recognizes inheritance through a succession of property owned by way of a person, male or female. And over time, various sub-schools of the regulation brought more than one woman member of the family to define inheritor to the inheritance. The court, after noting several such previous judicial clauses, concluded that it’s far abundantly clear that a daughter turned into in truth able to inherit the Father’s separate estate.

The court found, “From the above discussions, it’s miles clear that historic textual content as also the Smritis, the Commentaries are written by means of various famend discovered persons and even judicial pronouncements have diagnosed the rights of several lady heirs,the wives, and the daughter’s being the most of them. The rights of women in the family to maintenance were in every case very substantial rights and on whole, it would seem that some of the commentators erred in drawing adverse inferences from the vague references to women’s succession in the earlier Smritis. The views of the Mitakshara on the matter are unmistakable. Vijneshwara also nowhere endorses the view that women are incompetent to inherit,”

What does the judgment mean?

The courtroom has held that the self-received belongings of a Hindu man shall not devolve through survivorship however by using succession and girl heirs—wife and daughter—will be entitled to inheritance/succession even earlier than 1956, when the Hindu Succession Act become enacted.

What this indicates is that “anywhere the female heirs are being denied succession for the period previous to the year 1956 on the ground of succession by survivorship, shall grow to be entitled to succession and could carry a lot desired remedy to female legal heirs,” 

The court, among other things, has analyzed the right of a sole daughter to inherit the property of a father who died intestate prior to the enactment of the Hindu Succession Act.

The court went into the sources of Hindu laws and several judicial pronouncements and upheld the right of a daughter to her father’s property. This is in line with a string of judgments that have reiterated the right of a female Hindu to inherit property, said Avikshit Moral, partner at IndusLaw.

Key facts

-The apex court pronounced that, daughters of a male Hindu, dying intestate, might be entitled to inherit the self-obtained and other properties obtained in the partition by way of the father.

-Daughters can even get preference over other collateral members in their own family.

-As per the court, if a property of a male Hindu dying intestate (without a will) is a self-acquired asset or it’s been acquired inside the partition of a coparcenary or an own family property, it might devolve by inheritance and not via survivorship. The daughter would be entitled to inherit such property.

-Right of a widow or daughter to inherit the self-acquired property or proportion obtained in the partition of a coparcenary property of a Hindu male dying intestate is well recognized under old customary Hindu Law in addition to by way of numerous judicial pronouncements..

Key Points

Daughters Inheritance:It states that if a person is died without leaving any will and is survived by his daughter will devolve upon the daughter and not others such as his brother.

But before there was an amendment made in Hindu Succession Act, 2005. There it was amended that if father and daughter were alive on the amended date then the daughters have Coparcenary right. But, this clutch of the previous Judgment of the apex court has been set aside by a three-judge bench headed by Justice A.K. Sikri. SC held that daughters will have inheritance rights equal to those of the brother, Grandfather, Great grandfather right from the codification of the law in 1956.

Ancient Texts & Judicial Pronouncements:The sc referred to ancient tex by various named persons even judicial pronouncements which have recognised the rights of several female heirs, the wives and the daughter’s being the foremost of them.

Supreme court also looked into vyavastha chandrika,a renowned learner of Hindu law by shyama charan sarkar vidya Bhushan who quoted vrishaspati by saying that thr wife is pronounced successor to the wealth of her husband as a son,so the daughter of a person also proceed from her second limbs.

Supreme court also noted that the book also quoted manu as saying The son of a person even himself and a daughter is equal to a son.How can any other inherit his/her property not withstanding the survival of her,who is,as it were,himself.

Old law:The previous law stated that right of a widow or daughter to inherit the self-acquired property or share received in the partition of a coparcenary property of a hindu male dying intensity is well recognized not only under the old customary Hindu law

-If a property of a male Hindu dying who has died without having made a will is said to be self-acquired property or obtained in the partition of a unity of little or family property, the same will be developed by inheritance and not by survivorship and a daughter of such a male hindu will be entitled to inherit such property in preference to other property or something valuable that you agree to give to somebody if you can not pay back money that you have borrowed.

Property after womens death

the court also said that if a female Hindu dies without having made a will or without leaving any issue then the property inherited from her father would go to their inheritance of father or mother whether if in case the property of father is inherited from her husband or father in law.would go to the heir of her husband.

Land Rights and Women in India

Property in India was largely towards to male heirs. In this case, it turns deprives women of agency, financial independence, and entrepreneurship. According to the national family health survey, 43% of women respondents were reported to be owing house/land alone or jointly but the main point is women’s ability to actually access and control property.

-In fact, in 2020 university of manchester working on a paper found that hardly 16% of women in rural landowning households own land.

-Patriarchy=In deep patriachal mores and rural agrarian settings, property which were seen as their primary source of wealth is largely contributed to the male heirs of the family.

-state laws=Inheritance laws for agricultural land remain a minefield with conflicting cultural personal laws and state laws.

-In this point of view states like punjab,haryana, Uttar Pradesh, and even Delhi have regressive inheritance provisions.

-In fact, Haryana also twice tried to take away the progressive rights which were given to women through the Hindu succession Act 1956, while in Uttar Pradesh since 2016 Married daughters were not considered primary heirs.

-Ground-level resistance =There was also a lot of ground-level resistance for registering land for women in the northern parts of India. But in fact, women’s empowerment and property rights remain an unfinished project in India.

Hindu Succession Act, 1956:

About:

-The Mitakshara school of Hindu law was codified because the Hindu Succession Act, 1956 governed succession and inheritance of property but only to the acknowledged males as their legal heirs.

-It was applied to everyone who isn’t a Muslim, Christian, Parsi, or Jew via religion. Buddhists, Sikhs, Jains, and followers of Arya Samaj, Brahmo Samaj, are also were considered Hindus for this law.

-In a Hindu Undivided Family,  numerous legal heirs through generations can exist jointly.

Traditionally, only male descendants of a commonplace ancestor in conjunction with their mothers, wives, and unmarried daughters are taken into consideration in a joint Hindu family. The legal heirs preserve the family belongings mutually.

Hindu Succession (Amendment) Act, 2005:

-The 1956 Act was changed into amended in September 2005 and women had been regarded as coparceners for property partitions arising from 2005.

-Section 6 of the Act was amended to make a daughter of a coparcener also a coparcener via birth “in her own right in the same manner as the son”.

-It also gave the daughter the identical same rights and liabilities “within the coparcenary property as she might have had if she had been a son”.

-The law applies to ancestral property and to intestate succession in personal property, where succession takes place as per law and no longer thru a will.

How did the court reach the conclusion?

Tracing the sources of commonplace Hindu law on inheritance, the court docket mentioned Mitakshara law and appeared into amongst others to ‘Vyavastha Chandrika’, a digest of Hindu law by using Shyama Charan Sarkar Vidya Bhushan which quoted ‘Vrihaspati’ as pronouncing ‘the spouse is pronounced successor to the wealth of her husband; in her default, the daughter. As a son, so does the daughter of a man continue from his several limbs. How then, have to every other individual (b) take her father’s wealth?”.

The SC also referred to that the ebook quoted Manu as pronouncing “the son of a person is at the same time as himself, and the daughter is identical to the son. How then can another inherit his assets, notwithstanding the survival of her, who is, as it has been, himself.”

Author: ADARSH DEBASISH, KIIT UNIVERSITY.

Editor: Kanishka Vaish, Senior Editor, LexLife India

JURISDICTION OF KRISHNA AND GODAVARI RIVER BOARDS NOTIFIED

Reading time : 6 minutes

ABSTRACT:

This article generally talks about the major and contemporary issue which is in a process to kill the Indian federal structure. It also revolves through Article 262 of the Indian Constitution and the Water Dispute Act, 1956 mechanism to tackle the river water related problems. The role of the Parliament and the judicial review of the Supreme Court were in vague as States of Andhra Pradesh and Telangana went against each other and vehemently opposed to each other’s river water projects. The final and firm decision of the Centre made it effective and the jurisdiction over the waters are to be utilized in a reliable way. The River Boards’ criteria of undertaking projects of constructing numerous dams, irrigational mechanisms and canal strategies have given quite hopeful works that would enrich in using the river waters. The article also focuses the historical and politically issues attached to the water dispute purpose and the set up of tribunals which led a great aid in providing huge relief to the disputed states.

INTRODUCTION:

India is a multi-diversified country with boundless land of 2.4% of the total world and has most of its water availability as compared to other countries of the world but due to its high crowded population, apiece of people getting regular availability of the water is very less and little in amount (according to the 2019 report). Due to the continuous increase in the number of population and uneven distribution of rainfall accompanied by various other different geographical and climatic prime reasons poses a big threat to the storage, collection and harvesting of water resource processes. India has downright 25 river basins which flows through almost in every States, rivers are the key sources of water so they are in agreement bound by laws and policies between the States and Centre. India is a federal country having ministerial framework urgently needs the protection, reservation, equal division of water among states and most importantly justifiable use of it. All these processes and stages requires the Central Government interference to solve out these water-related issues.[1]

Inland water disputes in this contemporary world have been the top rising problem, which in a way includes disputes relating to rights over property, management policies of ecosystem, fluvial of water constructive methods and economical approaches of food reliability. These conflicts have its relevancy since Pre-Independence bounded by political, historical and numerous other fields. The root cause lies in the huge difference between rural prone areas and urban sectors comprising of uneven political ideas and controversies which is giving great impact to the ecological balance system. [2]The proposal of the River Basin management Bill, 2018 lend a helping hand in curtailing these obstacles for the better improvisation the inter-state water management. Currently, there has been a lot betterment in the water sector field by adopting various procedures, advanced technologies and methods to use water sources sustainably. Greater than 80% of the water in India comprised of inland basin, so it is quiet absolute that ongoing disputes on the use of river water is the usual phenomenon in India is a complete valid one, recently the squabble over the utilisation of the river waters of Yamuna River among the Sates of Delhi, Haryana and Uttar Pradesh came into peace by a reliable and negotiable agreement of among the three Chief Ministers with the help of the Union government. The Krishna-Godavari, Narmada, Cauvery are the most attentive rageous conflicts of the Indian sub-continent. It stands as such that when the river flows through the states, one state cannot possess sole authority over it, it cannot frame any laws or execute it beyond its jurisdiction. In taking Article 262 the Indian Constitution openly talks about the setting up of tribunals to end up the conflicts of inland water basins and equitable use of river waters and the matters is to involve the Union government in between fights among the states. The Indian Constitution of India empowers the Supreme Court to deal with such issues involving question law or fact which determines the extensive rights. Later, the role of Parliament came into the scene and the establishment of tribunals generally excluded the Supreme Court to participate in these conflicts. [3]

Therefore, the incontrovertible adjudication of water related issues plays over the constitutional arrangements of Indian Constitution and the structural framed legal polices to which this article normally focus its attention on the long dispute of Krishna and Godavari river basins.

HISTORICAL BACKGROUND OF THE INLAND WATER DISPUTES:

BEFORE 1947:

SECRETARY OF STATE COUNCIL SPAN

The inland water disputes in the British period were resolved by the Governor in Council with Secretary of State as its head who was the main controller of the conflict. It was a mandatory task of every provincial government to attain the Secretary’s approval before undertaking any matter relating to water issues, even in the cases of withdrawing more five million amounts of rupees for the development or construction purposes of any water related strategy.

GOVERNTMENT OF INDIA ACT, 1919 PERIOD

Prior to the operation of the Act 1919, irrigation was the subject matter of the Centre. Then after the Act of 1919 it was transferred to the State and state related disputes were begun get resolved by the Governor in Council under the Supreme control of the Secretary of the State.

GOVERNMENT OF INDIA ACT,1937 ERA

In this era, the provinces will able to acquire the complete exercise of its control over the irrigation subject. All the water disputes factors were determined by coming into a mutual agreement governing various policies, basically resolved by the Governor General along with many expertise commissions under the Sections of 130-134 of the Government of India Act 1935.

But there was no proper permanent establishment of any medium in resolving the issues, before the formation of the Constituent Assembly, Dr. B.R. Ambedkar opined that water related conflicts are the biggest issues that India has to deal with forever if not any permanent pan India Tribunal is not set up, negotiating and setting up of various committee can only ruin the structure by dominating each other and becoming more autocratic and finally led to the incorporation of the Article 262 which gave power to the Parliament to exercise over the inter-state water disputes.

KRISHNA AND GODAVARI RIVER WATER DISPUTE:

The Krishna river rises near Mahabaleshwar i.e., Satara in the State of Maharashtra and it flows through the States of Maharashtra, North Karnataka, and the remaining of its 1300 km part crosses Telangana and Andhra Pradesh and then drains into Bay of Bengal. River Krishna is considered to be the second widest river after Godavari because it originates in the Western Ghats and flows in eastward peninsular direction, finally drains into Bay of Bengal. Krishna forms the expansive basin by covering 33% of the total area of four states. Therefore, its heavy amount of water carriage made the four states to quarrel over it and their rights of adjudication. Krishna river water dispute has been marked as long ongoing dispute between the Hyderabad and Mysore states, then it became relevant between Maharashtra, Karnataka and Andhra Pradesh. T bring the conflicting states into peaceful cooperation, in 1969, the Krishna Water Dispute Tribunal (KWDT) was set up under the Government of India in accordance with the Inter-State Water Dispute Act of 1956, came to be known as the Bachawat Tribunal. The decision along with the report was delivered in December 1973, and again in May 1976 which made division of the Krishna river into three parts in thousand million cubic feet 560 TMC for Maharashtra, 700 TMC for Karnataka and 800 TMC for Andhra Pradesh respectively. In addition to this very importantly it was notified that in May 31, 2000 it may be revised. The main cause that started to revolve is that the rainfall is very unpredictable due to which many districts remain dry whereas in monsoon excess amount of water goes as a waste to the sea, as many of canals were unlined and not properly maintained because of fund issues. But in general, the Tribunal were in a quiet position regarding the non-riparian states.

Under Article 131 of the Indian Constitution Andhra Pradesh filed against the state of Karnataka for violating the norms of the decision by building up dams to a greater height which affected the residentials residing nearby and urgently urged for immediate relief. In the case of State of Andhra Pradesh v. State of Karnataka,[4] the Supreme Court made a very clear and transparent declaration that though the decision was delivered by the Tribunal it cannot interfere or adjudicate its rights on the Tribunals in such matters the parties facing issue should approach the existed Tribunal.

Similarly like the river Krishna, Godavari too is eastward peninsular flowing river, Godavari river originates from Trimbakeshwar which is near Nasik in the State of Maharashtra and has its total length 1465 km flowing a through and finally meets its source into Bay of Bengal. Its basin extends flowing across the states of Maharashtra, Telangana, Andhra Pradesh, Chhattisgarh and Odisha and its little part flows through Madhya Pradesh, Karnataka and Union territory of Puducherry. Godavari being the widest river and carrying maximum of it flow led to the rise of dispute for utilising the water judiciously. So, in April 1969, The Godavari Water Disputes Tribunal under the head of Justice Bachawat by the Government of India for resolving the Godavari related issues. There were few bilateral and tripartite agreement for the efficiently use of the river up to a particular defined territory. Like Maharashtra was directed to flow in Godavari up to Paithan, in this way the States were directed to judiciously utilised the water. Two projects were undertaken namely Inchampally and Polavaram having Full Reservoir Levels in July, 1980. In the strategy of Polavaram Project 80 TMC diversion of water from the Godavari river to Krishna River upstream of Vijaywada Anicut. Inchampally Project was basically a tripartite agreement among the states of Madhya Pradesh, Maharashtra and Andhra Pradesh, where 80 TMC of water was permitted to Andhra Pradesh to take out its diversion. In the 2010 report, Andhra Pradesh challenged by a special leave petition in 2011, which gave proper allocation to the States for the use of waters.

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All the agreements made on the water related issues on Krishna and Godavari rivers should have the involvement of the Parliament through a framed legislation and between States.

CENTRAL GOVERNMENT’S INTERFERENCE IN THE WATER DISPUTES:

Union Government of India plays a very vital role in keeping space with the conflict related river water among the states. The subject of irrigation and construction of barrages and dams are the sole responsibilities of the States to look into the disputes and its betterment. During the colonial rule, the Britishers had put some efforts by deploying the States into mechanism of river constructive strategy and its harvesting so that during monsoon the water does not go in waste, most of its policies were never got executed but out of its only the Godavari River Water Tribunal enables the states to utilise effectively. The National Hydro Power Corporation enterprise deals with the construction of the hydroelectric dams. The Government of India has also formed the Damodar Valley Corporation which activaley participates in flood management process and utilising the Damodar river basin in electricity purpose. Finally, the Ministry’s Central Water Corporation looks and deals to combat the conflicts between the States relating to water sharing issues.

SCENARIO OF THE CONSTITUTION:

The Constitution of India under the Article 262 has laid down that in relating to inter-state river water disputes the Parliament may by law as prescribed may adjudicate any river water related disputes, along with it can also look into the distribution of the rivers on the basis of territorial jurisdiction. Article 262 also clearly points out that relating to water dispute scenario neither the Supreme Court nor any Court can interfere into the matter. The Constitution of India has clearly included the disputes of inland river waters in the Entry 17 of List II and Entry 56 of List I independently. The power to make laws on any subject is divided between the Centre and States in accordingly mentioned in the Constitution. Entry 17 of List II is the dominant power of the Union over the states which says that all the water related disputes, harvesting of water, construction of dams and barrages along with various other developmental stages are enumerated under entry 56 of List I. This power is given to the Union because of the one whole reason that no state can individually own or exercise its sole powers over any river flowing across their states rather if the river is flowing between other states then they too also have their rights to use it. So, the entry 17 of List II simply concludes that the upper riparian states undertake any projects over the river which consequently effects the lower riparian states, powers cannot be exclusively given to the states independently. If any particular state single-handedly tries to control over a river without taking in consideration of the other lower riparian states then the situation goes into the state of war by the encroachment of the Article 2459(1), in order to make it settle, the of doctrine of harmonious construction as established between the entries respectively to avoid any conflict further.

The River Boards Act, 1956 was enacted and executed to synchronize and adjudicate the Inter-State rivers. The main aim was to assist and give proper recommendations to the State Governments in construction of dams to raise to a certain height and river valleys. The Boards are mainly constituted by the Central Government on the appeal of the State Government, so that the constituted board can five better advises to the States. Article 262, 263 and 131 are the articles that talks about the water related disputes but Article 131 can only be bring out on definite circumstances. The 1956 Act, solely gave more power to the Union Government to exercise its power over it. Article 245 plays a role in it as it says that there is limitation provided on the state governments to adjudicate within its territory beyond to which is strictly prohibited and when this article is read with article 246(3) which enshrines that states has the full exclusive power to adjudicate upon any subject under List II of the Seventh Schedule and some under List III, over their territory only and not beyond it. In spite of various construction of articles and doctrines still various disputes outside the territories among the states continues to go on.

CURRENT SCENARIO OF KRISHNA AND GODAVARI RIVER BOARDS:

Andhra Pradesh and Telangana are the two states who were in continuous conflict over the two rivers Krishna and Godavari, as both of these states shares both the rivers and its tributaries to some extent and these ongoing disputes was not willing to end till the Centre (Union Ministry of Jal Shakti) finally gave the jurisdiction to execute over the Krishna and Godavari rivers through Krishna and Godavari River management Boards (KRMB and GRMB).

REASON BEHIIND THE DISPUTE BETWEEN ANDHRA PRADESH AND TELANGANA:[5]

  1. The hydel power generation and the constructive project strategy undertaken at Srisailam, Nagarjunsagar and Pulichintals reservoirs are the long stand reasons for the ongoing conflict between Andhra Pradesh and Telangana.
  2. Andhra Pradesh for long time wanting the Boards to give proper and finally advisory command over the water dispute, but Telangana tried to go against Andhra Pradesh and posing hurdles.
  3. Andhra Pradesh put forward various projects one of it was a lift irrigation scheme for Rayalaseema, on top of this Telegram advance with more projects than the later. Therefore, the Board, Central Water Commission and the Apex Council found it quite skeptical in transferring the power of share of water over the two disputing states because both the states without taking any clearance they recommend dozens of strategies regarding the use of the river.
  4. The Board was formed prior to seven years under the Andhra Pradesh Reorganisation Act, 2014. to resolve the conflict but it took long time to come to a solution.
  5. The Board further formed the Apex Council consisting of the Union Water Resources Minister and the Chief Ministers of Telangana and Andhra Pradesh.
  6. The Government of Andhra Pradesh came forward and brought that they were willing to use the Krishna river a bit more from the Srisailam Reservoir which in turn outraged the Telangana government who filed a complaint against Andhra Pradesh. To encounter the Telangana state, the government of Andhra Pradesh complained that the projects of Palamuru-Rangareddy, Dindi Lift irrigation Schemes were under taken on the river Krishna while Kaleswaram, Tupakulagudem programme on the Godavari river.

KRISHNA WATER DISPUTE TRIBUNAL:

To resolve the ongoing water dispute over the Krishna River two tribunals were constituted, in which the second tribunal did not give satisfaction to Andhra Pradesh because the second tribunal named The Brijesh Kumar Tribunal granted only 196 thousand million cubic feet to them whereas 81 tmcft of excess flow of water to Maharashtra and 177 tmcft to Karnataka, and the Government of Andhra Pradesh resorted. When the new state Telagana came into existence in 2012, Andhra Pradesh urged to involve Telagana as another different party to KWDT and the water is to be divided among the four states. Finally, objected the order of the Brijesh Kumar Tribunal in Supreme Court.

GODAVARI WATER DISPUTE TRIBUNAL:

The Godavari Water Dispute Tribunal was constituted in 1969 by the Government in April headed by Justice Bachawat and gave ultimate decision in 1980 to utilise the river water judiciously. Then the Andhra Pradesh government diverted 80 tmcft of the river water from Polavaram to the Krishna river. After the formation of the Telangana state, the dispute started between the two states mainly because Andhra Pradesh came up with many projects which instilled fear within Telangana, which had chances of drowning some of its districts.

FINAL JURISDICTION NOTIFIED FOR KRISHNA AND GODAVARI RIVERS:

Fighting over the two rivers for long seven years under the constituted constitution of Andhra Pradesh finally came to an end, when the Centre gave its notification of jurisdiction of Krishna and Godavari rivers recently to the Krishna and Godavari River Management Boards (KRMB and GRMB) which will come into effect from October 2014. The Centre gave them power to go with 35 projects in the Krishna basin and 71 projects in the Godavari basin. Now, they can peacefully head towards in the construction of dams and barrages, imparting of power supplies, even they can carry out part of canal development strategies. Therefore, from the onset of the notification the governments of both the states will transfer their complete jurisdiction and its requirements to the Boards. The Centre has wilfully commanded that both the states have to deposit of rupees 200 crore to the Boards respectively to enable it carry out their duties, in addition to this the Centre provided strong Central Industrial Security Force (CISF) to aid them in their functional processes.[6]

The Centre in its notification included Schedule 1, 2, and 3 for the water related purposes.

  1. Schedule 1- It enumerates structural and developmental work that includes barrages, barricades, embankment, tanks regulating structures and supply of power connections under the complete jurisdiction of the KRMB, this schedule expressed that KRMB will undertakes all the remain and under way projects in the Krishna river basin in the states of Andhra Pradesh and Telangana.[7]
  2. Schedule 2- This schedule lays down that all the head works performed under the jurisdiction of the KRMB would have to perform in accordance with the act including administration, operation, maintenance and regulation.
  3. Schedule 3- – It briefly highlights that all the leading projects and works falling under the KRMB jurisdiction will be carried out but the dischargement of the functions as per act will be governed by both the states.

In consonance with the notification, that the unapproved projects of Telugu Ganga, Veligonda, Handri-Niva, Muchumarri, Galeru-Nagari, Siddapuram and Guru Raghavendra undertaken by the A.P. government in the Krishna basin, Similarly, projects of Pattiseema, Purushotthapatnam, Chintalapudi, and Venktanagaram were of Andhra Pradesh in the Godavari basin and in other projects of Telangana such as Kanthanapally, Kaleshwaram, Pranahitha, Gudem, Mukteshwar, Sitarama Ramappa-Pakhal were also there. The notification laid down that all the projects that were not approved will stand as in for approval in accordance with the Act. Finally, the respected State Governments will have to immediately cease their unnecessary unapproved projects with the effect of the notification.[8]

CONCLUSION:

The river water dispute is the biggest conflict that goes on for centuries and years ruining the very relationship among the states. Krishna and Godavari river dispute went for long seven years even the River Boards committee but finally gave a ray of light when the jurisdiction of Krishna and Godavari rivers were given notification by the Centre by solving the long-standing problem. Though for now the conflict has been ended but it can arise in future at any time. There should strong set of Pan-India Tribunal to mitigate all the rising water related issues. Moreover, the rivers in should be linked to each other so that there can be proper utilisation of waters without any disputes. Setting up of one single tribunal for the management of water disputes would not serve its purpose to the fullest, side by side there should be a constitution committee or any medium of institution where the financial, administration and summarisation of up-to-date data and information should go in hand to hand. Inland river water issues ultimately become the nation problem in the hands of the politicians and goes on to become finally political issues[9], which in a way gets resolved ultimately.

Central Government has been playing an important and crucial role in this hour of need by sorting to every level that it can make best possible way. The Sarkaria Commission has also actively made its active presence in the water-related on-going disputes of the rivers. The huge and big projects undertaken by the Telangana and Andhra Pradesh states over the Krishna and Godavari river basin can have biggest consequences on the environment and can even create disbalance in the ecosystem. The adversarial effects have its impact on the residentials of both the states too. The Centre’s notification on the jurisdiction over the Krishna and Godavari rivers was the most remarkable and to the mark solution till now, which helped in wiping out the dispute. The best way of coming into a solution to these water disputes is to take previous references, case laws and precedents decided. National water disputes are also the elements for the destruction of the federal structure of the country, thus it is high time to keep our strong intentions on implementing and making various policies, building up of secured administrative laws and improving the constitutional systems, which could bring peaceful situations between the states and water disputes could away in an easier way.[10]

[1] C. B. Griffin, “Watershed councils: An emerging form of public participation in natural resource management,” 35 Journal of the American Water Resources Association 505–18 (1999).

[2] Ramaswamy R. Iyer, “Indian Federalism and Water Resources,” 10 International Journal of Water Resources Development 191–202 (1994).

[3] P Abraham, “Notes on Ambedkar’s Water Resources Policies,” 37 4772–4.

[4] Abhiraj Singh, “Andhra Pradesh versus Karnataka Krishna River Water Dispute.”

[5] Jurisdiction of Krishna & Godavari River Management Boards – INSIGHTSIAS, 17 July, 2021.

[6] MOUSHUMI DAS GUPTA, “Jurisdiction of Godavari & Krishna boards finally notified as AP-Telangana water row rages” 16 JULY 2021.

[7] “Andhra Pradesh: Centre takes control of irrigation projects on Krishna & Godavari river | Amaravati News – Times of India,”available at: https://timesofindia.indiatimes.com/city/amaravati/andhra-pradesh-centre-takes-control-of-irrigation-projects-on-krishna-godavari-river/articleshow/84491332.cms (last visited August 15, 2021).

[8]“Jurisdiction of Krishna & Godavari river boards,” 27 JULY 2021.

[9] William Blomquist and Edella Schlager, “Political pitfalls of integrated watershed management,” 18 Society and Natural Resources 101–17 (2005).

[10] Pratik Dixit, “Rivers and social justice: adopting an ethical approach to river basin management in India,” 3 Indian Law Review 97–115 (2019).

Author: SWAGATIKA BEHERA, KIIT UNIVERSITY

Editor: Kanishka Vaish, Senior Editor, LexLife India.

Journalist and Title to Protection of Kedar Nath Judgement: Supreme Court quashes sedition case against Journalist Vinod Dua

Reading time : 8 minutes

Of the for the most part tremendous number of laws that were obtained from the wild construction in India, few have been just probably as questionable as those related to rebellious offenses. Since a promising condition, the law has been changed and loosened up to mix shields so it may withstand blessed assessment. Notwithstanding, it truly goes probably as a helpful technique to limit free talk, and has been utilized by contemporary governments for reasons that are obviously like those of our past genuine rulers. In this paper, we present a safeguard for holding the law back from getting resistance. it was explored down in Kedar Nath v. Union of India; it is battled that it is hazardous and befuddled by its actual nature and can’t be applied dependably. Further, the law was upheld by an edges absolutist construction for a specific explanation, which can’t create to a post-opportunity sensibly picked government. An evaluation of the examples of sedition under the wary look of the High Courts and Supreme Court show that the offense of sedition is continuously escaping date. Issues of public deals, which the law purportedly addresses, may rather be tended to through various laws that have been composed for that specific explanation.

Introduction

THE law of sedition has dependably been perhaps the most divisive subjects of set up law in India, with sees going from requires the hard and fast nullification of the strategy from our standard books to those supporting for holding the disruption condition absolutely with a more eager execution. While different others have called for holding the course of action at any rate keeping its execution inside depicted lawful eliminate centres, to find a type of friendliness between open prosperity and principal rights.

The Public discussion over this issue was reignited last week once a three-judge division seat of the Supreme Court recently referenced in AN extraordinarily request on would possibly 31, 2021, by goodness of M/s Aamoda association Pvt. Ld. besides, Anr. v. The State of an area and Ors. (W.P. (Cr.) No. 217/2021) that “there can be a need to portray the constraints of sedition “. Later inside the week, a two-judge division seat of the best court, on account of Vinod Dua v. Relationship of Bharat and Ors., smothered a FIR (first data report) against the trained professional, maker Vinod Dua, for the offense of sedition  . In its judgment, the court referred to a reasonable undeniable truth that every maker is protected from the charge of offense considering the understanding of the offense as propounded inside the court’ accomplishment judgment as a result of Kedar Nath Singh v. State of state (AIR 1962 SC 955).

Since the Supreme Court itself has seen that there is a need to rethink these laws, it is crucial to keep the law by Indian courts that have added to the present-day start of the law of sedition .

Beginning of Section 124A of the Indian Penal Code, and pre-freedom statute

Diverse credible experts battle that the sedition is a rest of British explorer rule, from the beginning familiar with cover significant voices radiating from the Indian chance new improvement Section 124A of the Indian Penal Code, 1860 (IPC), as we have today, was missing from the focal draft of Macaulay’s IPC in 1860, and was essentially presented in the year 1870, composed by James Stephen. This combination went through additional change through the IPC (Amendment Act), 1898, since when it has reliably held its new development.

The major clear case for the offense of disobedience was tended to in 1891, in view of Queen-Empress v. Jogendra Chunder Bose and Ors., (1892) ILR 19 Cal 35, in which the editors of a Bengali magazine were charged for their assessment of the British Government’s diagrams, unequivocally concerning the Age of Consent Act, 1891.The distributers battled that the offense of sedition just repulsed plan of safe substance and not the dispersal thereof, moreover endeavoured the presence of the sedition  law itself. They struggled that reprimanding individual for rehearsing their advantages clashed with the basic assumption for the law.

The Calcutta High Court held that the distributers couldn’t be gotten freed from genuine obligation fundamentally considering the way that they had not made the rebellious substance, as the spread of the magazine by them was proposed to be inspected by the typical vested assembling. The High Court had correspondingly highlighted upon the limit between the term’s ‘disappointment’ (that is, genuine assessment) and ‘offense’ (which imply ‘any tendency notwithstanding fellowship’. The court contemplated that since just antagonism is reprimanded, the offense of rebellion doesn’t discard people’s advantages. Around twenty years hence, Tilak was again sought after for sedition  by standards of Emperor v. Bal Gangadhar Tilak, (1917) 19 Bom LR 211, for an article he wrote in which he kept up the achievement of swarajya (‘self-rule’) for Indians. In the article, Tilak explicitly yielded his constancy to the British Crown currently continued censuring the standard affiliations, doing battling in court that the customary affiliations and the British government were two clear substances. A division seat of the Bombay High Court exonerated Tilak’s requests, holding that the typical affiliations got their force from the legitimate State, and no such ground for such separation existed. The High Court, in any case, clarified that singular such appraisal of the conventional help that with canning attributed to the state should be viewed as dissident.

The court, for the present circumstance, took a general liberal position, absolving the enthusiasm for ‘disturbance’ given by the single adjudicator seat of a commensurate court in Queen-Empress v. Tilak and Bal, which came out with the wide significance of obstruction as anything as opposed to fellowship. This judgment undeniably influenced free talk, as the legitimate impact of the alleged protester visit on everyone was thought of, while researching the objective of the charged.

Sedition law in India

The instance of Tara Singh Gopi Chand v. The State (1951 CriLJ 449) was the main event of a court in a long time intervening on the hallowed authenticity of fragment 124A of the IPC. Since India was by and by a self-sufficient republic, consecrated courses of action expected uniqueness over British perspectives. The then-Punjab High Court, for this situation, seen that part 124A was obviously a constraint on the capacity to talk uninhibitedly and verbalization, and discredited the game plan on the reason that it was in renouncement of the vital right of the option to talk unreservedly of talk and explanation under Article 19 of the Indian constitution. After a short time, self-ruling India’s first Parliament passed the Constitution (First Amendment) Act, 1951 which, notwithstanding different things, hoped to decide the anomaly in the constancy of the sedition law due to the Tara Singh Gopi Chand judgment. It did as such by introducing new grounds on which the right to one side to talk uninhibitedly of talk and explanation could be reasonably restricted.

In the principal Constitution, the single defence for confining free talk recognized in Article 19(2) were the security of the State, defame, hatred of courts, and bearableness and moral quality. The Amendment Act introduced the new grounds of public solicitation, relations with new states, and incitation to an offense, for restricting the capacity to talk unreservedly and verbalization.

The correction was put to test inside two years by virtue of Debi Soren and Ors. v. The State (1954 CriLJ 758) , in which the charged, an Adivasi pioneer, was saved for a combustible talk against the public authority. In it’s anything but, a division seat of the Patna High Court made an unquestionable capability among protest and offense and held that solitary estrangement prompts public issue. The High Court in like manner attested the defendability of region 124A of the IPC, concluding that it doesn’t mishandle Article 19.

Also read: Right to privacy; data protection law

Kedar Nath Singh, Case

In 1953, Kedar Nath Singh, an individual from the Bihar Forward Communist Party, stumbled into difficulty subsequent to going to the determination show at a gathering in Begusarai sooner or later, in which he proclaimed: “Today the canines of the CBIs in Barauni are various canines of power even sit at this gathering Individuals from India removed the British from the country and chose the Goondas of Congress to pester and pressure the Goondas of Congress lathis, photos in the United States of America. We put stock in the uprising in transit of things to come and in whose house industrialists, zamindars and pioneers of Congress could consume, and a focal authority of adverse individuals and abused individuals of India could be introduced in their rooms. “

The burning discourse started his conviction and capture by utilizing a motorway intersection to settle the disdain discourse charges and a train to the Patna High Court was upset. Then, at that point, at that point in 1962, there was an allure, with the assistance of Singh, to the Supreme Court wherein he analysed the consecrated authenticity of Section 124A and challenged it by smothering his discourse released under Article 19 of the Constitution.

Straightforwardly negating interpretations of Section 124A utilizing British contemporary courts. Resulting choices, one of every 1942 and the option in 1947, communicated restricting perspectives regarding whether impelling to hostility or the inclination to unsatisfied public petitions turns into a fundamental detail of the offense distinguished under Section 124A.

 Supreme Court decision

 In a choice of achievements, a bank of the Constitution of the Supreme Courtroom affirmed the authenticity of the IPC’s 124A area (commotion), yet kept on endeavouring to limit the extension of the ground.

Breaking length guideline for maltreatment through endeavours to depict the appraisal of both what acts presented as sedition and some not. The seat of five choices included Chief Justice BP Sinha and Judges AK Sarkar, JR Mudholkar, N Rajagopala Ayyangar, and SK Das. He said that any exhibition that utilized unforgiving methods to “sabotage the public authority” or caused public agitation could be exceptionally near impelling. 505 (proclamations helpful for public ravenousness) as unavoidably critical.

“Demonstrations of s.124A implying that sabotage the public authority by driving it to disdain or hatred, or offending it in inconsistency thereto, could fall under the remedial choice on the grounds that the sensation of treachery of the foundation of the public authority through the Regulating or loathing the chance of tendency to public aggravation through the utilization of genuine severity or gesture to the hostility of the day, any expression that has been formed or communicated, and so forth, dug out as government with the assistance of unforgiving methods to which one can even recall the term ‘disappointed’, having been detained with the assistance of the stage referenced “, prepared the record of the Supreme Court.

For each situation, the court record tracked down that a disappointment, the extents of the official personality for its turn of events or transformation with Getting near utilizing legitimate methods isn’t a sedition. He asserted that “the remarks, which are unequivocal as well as talk about disappointment with the public authority’s game, without stimulating the notions that make an inclination to utilize showings of hostility to incite public distress” didn’t the offense can be fixed longer.

The peak court clarified that part 124A couldn’t be used to cover free talk, and should be called if it might be exhibited that the dissenter talk being alluded to provoked the prompting to hostility or would achieve open issue. Since Kedar Nath denounced the Congress party and not the Indian State, and the talk being alluded to didn’t quick any actuating to brutality, consequently it didn’t amount to sedition.

The court similarly saw that the presence of a noxious tendency to incite fierceness is a precondition to gather the sedition explanation. The court kept up the new Federal Court’s interpretation of section 124A in Niharendu Dutt Majumdar v. Ruler Emperor, (1942) FCR 38, in which its judgment batted immovably for real examination of the public authority and against emotional limit on the capacity to talk openly. The Federal Court had proffered that to set up the offense of sedition, there ought to be a public issue or if nothing else a reasonable likelihood of public issue.

Post-Kedar Nath Singh Case developments

In another huge decision, because of Balwant Singh and Anr. v. Territory Of Punjab, 1995 (1) SCR 411, the accused had been arraigned for the offense of sedition as he had busy with sloganeering for an independent Sikh bigger part state in the wake of Indira Gandhi’s passing. A two-judge division seat of the Supreme Court chose for the censured, on the thinking that since the talk being alluded to didn’t speedy any agitating impact of public solicitation, and was not inclined to impel any ruthlessness in the characters of the planned vested party, Balwant Singh’s exercises, appropriately, didn’t amount to sedition.

Courts, of late, have relied upon the above comprehension in instances of sedition, several changes. One such change was seen around 10 years back in the instances of Arup Bhuyan v. the State of Assam, (2011) 3 SCC 377 which were picked by a comparative two-judge division seat of the Supreme Court inside seven days of each other. In the two choices, the court, choosing charges of sedition  and preventive confinement, set reliance on the ‘cutting-edge insubordinate action’ test set some place close to the U.S. High Court judgment because of Brandenburg v. Ohio, 395 U.S. (1969) . As indicated by this test, all talk is guaranteed by the First Amendment to the U.S. Constitution with the exception of on the off chance that it activates inevitable ignoble movement.

According to data from the National Crime Records Bureau, there has been a basic development in the number of cases reported under portion 124A of the IPC, with such cases rising by 160%, some place in the scope of 2016 and 2019, while the conviction rate for such offenses dropped from 33.3% to 3.3.% for a comparable period. This obviously shows that the State has been mishandling this game plan to report ridiculous or insignificant cases. Such abuse will without a doubt impact the free talk of occupants by driving them to discretion.

Surprisingly, the British pioneer government made sedition  a non-cognizable offense in common India, as it was in England. In that capacity, when pioneers like Tilak and Gandhi were censured for sedition , the police couldn’t catch them or investigate the case without first getting a warrant from an appointed authority.

This position changed in self-ruling India during the arrangement of past chief late Indira Gandhi. In the new Code of Criminal Procedure, 1973, which came into power in 1974 and dropped the wilderness period 1898 Code of Criminal Procedure, sedition  was made a cognizable offense unprecedented for India’s arrangement of encounters. Toward the day’s end, the police as of now can catch an individual reprimanded for sedition  without a warrant from an appointed authority. We have conveyed this injury upon ourselves in self-governing India.

In 2009, the offense of sedition  was formally dropped in England, anyway arraignments for sedition  were insufficient there since 1832. There is, as needs be, no purpose why this boondocks relic should continue existing in India. In any case, whether or not our public bosses acknowledge that there is still some authenticity in holding sedition  on our IPC, they should really consider adjusting the offense of sedition  here with the English law of sedition  since 1832.

Toward the day’s end, Indian authorities should diminish the most outrageous sentence for sedition  from life confinement to two years’ confinement. They should make the offense of sedition  bailable and non-cognizable as it was in nineteenth century England. The Supreme Court’s significance of sedition  in Kedar Nath Singh’s case should similarly be inserted into fragment 124A so a cop who examines the substance of the IPC, with no talk, can fathom that sedition  no longer techniques basically invigorating “aggravation” against the public authority.

Right to dissent

There can’t be any fair country where the inhabitants don’t save the advantage to think as they like, express their contemplations, have their own feelings and certainty, and love in a way which they feel like. The right of chance of evaluation and the right of chance of heart without any other person consolidate the basic right to conflict. Along these lines, the choice to differ is maybe the primary rights guaranteed by our Constitution. Up to an individual doesn’t exceed the law or engage struggle, he has an advantage to shift from every single other inhabitant and individuals with extraordinary impact and multiply what he acknowledges is his conviction.

Each overall population has its own rules and all through some time interval when people simply stick to the grounded standards and shows, society degenerates. New researchers are considered when they can’t resist the urge to repudiate a lot of recognized principles of society. If everybody chases after the all stomped on way, no new ways will be made, no new examinations will be done and no new vistas will be found. If an individual doesn’t present requests and doesn’t raise issues tending to age-old systems, no new structures would make and the horizons of the cerebrum will not develop.

In a standard country, every conviction shouldn’t be severe. Undoubtedly, even doubters like comparable rights under the Constitution. Whether or not one is a disciple, a cynic or a nonbeliever, one likes complete chance of conviction and internal voice under our Constitution. There can be no hindrances on the recently referenced rights except for those permitted by the Constitution.

The judgment of HR Khanna, J. in A.D.M. Jabalpur case , is a splendid delineation of a question which is significantly more significant than the appraisal of the bigger part. This was a judgment passed on by a bold, genuine Judge. Judges are controlled promise wherein they swear or guarantee to play out the commitments also as could be anticipated without fear or favor, kinship or malice. Regardless of anything else a piece of the commitment is to play out one’s obligation unafraid.

Also read: CITIZENSHIP BILL

Vinod Dua Case

A FIR that was planning arrangements for purposeful offenses of sedition , public badgering, the printing of slanderous substances and public unscrupulousness against Vinod Dua under the Indian Criminal Code was dispatched on May 6 with the assistance of BJP pioneer Shyam at the police central command of Kumarsain in the Arrested in Shimla City. Last year the creator dropped by to enroll for the test.

In recording a FIR rebel against lead creator Vinod Dua on Thursday, the Supreme Court focused on the overall arrangement that an inhabitant has the advantage of condemning the specialists as long as “it doesn’t influence abominations towards the specialists”. An occupant has the chance, with the assistance of the specialists and their authorities, to denounce or clarify the endeavored developments, if this doesn’t prompt fierceness against the foundation of the specialists with our assistance.

The dissent, acknowledged to be recorded by a neighborhood BJP pioneer, impugned Mr. Dua of spreading fake news. Other than sedition , various charges raised against the senior reporter fuse causing public aggravation, printing of oppressive matter and offering articulations supportive for public evil. Mr. Dua pushed toward the Supreme Court after the Himachal police had displayed at his home on June 12 and mentioned him to be accessible at the distant Kumarsain police central command — at any rate a 20-hour drive from Delhi — the outstandingly following day (June 13) at 10 a.m.

Out of the blue, the Himachal police spread the word about their embodiment for Mr. Dua not long after the Delhi High Court had stayed a FIR enrolled by the Delhi police on a comparable transmission.

“There is another example against the media where State governments who don’t find a particular transmission to be in a condition of agreement with their political conviction frameworks register FIRs against individuals of the media fundamentally to trouble them and to alarm them so they surrender to the line of the State or, probably perceive the cool hard reality in view of the police,” Mr. Dua had submitted in the Supreme Court. In practically 30% of sedition  cases, Unlawful Activities Prevention Act, Prevention of Damage to Public Property Act, Prevention of Insults to National Honor Act and various laws were added to the vital information reports.

It in like manner found a 28% extension in sedition  cases enrolled each year during Modi’s term in office some place in the scope of 2014 and 2020, as against the United Progressive Alliance’s second term some place in the scope of 2010 and 2014. This was credited to a colossal extension in cases after difficulties the citizenship law and the Hathras gangrape. The data base in like manner showed that 65% of the 10,938 occupants reprimanded for sedition  all through the last decade ended up involved after 2014.

Some spot in the extent of 2016 and 2019, the quantity of cases announced under Section 124-A (interruption) of the Indian Penal Code (IPC) reached out by 160% while the speed of conviction dropped to 3.3% in 2019 from 33.3% in 2016, as indicated by the National Crime Records Bureau (NCRB). The Supreme Court had on various events counselled law endorsement relationship to not misuse IPC Section 124-A to check free talk and guided the states to follow the direction conveyed during Kedarnath versus space of Bihar groundwork.

The control for combustible offenses is known to be particularly merciless separated from different offenses in the IPC. It’s anything but’s a cognisable, non-bailable and non-compoundable offense that can be attempted by a court of meetings. It’s anything but a jail term of as long as seven years in the event that one is seen as committed of submitting resistant demonstrations. It is hard for an individual rebuked for disturbance to get bail. The exceptionally hypothetical nature of the offense causes it critical that courts to choose a case-to-case premise if any danger is caused to the faithfulness of the State or its vote-based requesting. Leaving such an attestation to authentic or manager accomplishment basically connects with a genuine government to disturb the free talk ensure. Courts have besides constantly tracked down those criminal tricks and presentations of mental battling didn’t include free thinker shows. In Mohd. Yaqub v. Space of W.B., the charged had confessed to being a secret usable for the Pakistani data affiliation ISI. He would get rules from the relationship to do antinational works out. He was along these lines charged for defiance under §124A of the IPC. Alluding to the pieces of defiance that were put down in Kedar Nath, the Calcutta High Court tracked down that the arraignment had neglect to set up that the appearances were insubordinate and that they actuated individuals to wildness. Consequently, the criticized were seen not as committed as the outrageous evidentiary necessities were not met. Fundamentally, in Indra Das v. Area of Assam118 (‘Indra Das’), the denounced had been shown to be an individual from the blocked connection ULFA. It was in like way declared that he had killed another man, notwithstanding the path that there was no proof for something practically indistinguishable. Applying the choice of the Court in Kedar Nath and Niharendu Majumdar, the Supreme Court tracked down that no combustible displays could be credited to the charged, and the allure was permitted. This outrageous evidentiary fundamental was in addition reiterated in the choice of the courts in State of Assam v. Fasiullah Hussain119 and State of Rajasthan v. Ravindra Singhi, 120 where the courts vindicated the reproved for the charge of obstruction considering the way that the indictment had neglect to make adequate proof to show that they had introduced a resistant display.

At long last, there were just three conditions where the blamed was arraigned for the charge for opposition. While two of these cases were under the careful look of the Chhattisgarh High Court, one was under the mindful look of the Supreme Court. Notwithstanding, as will be fought in this part, these cases were per incuriam and depended upon a misguided use of the law and inability to take into cognisance the lawfully restricting viewpoint on the matter. In Binayak Sen v. Region of Chhattisgarh, one of the denounced Piyush Guha made an extra-legitimate affirmation that Binayak Sen, a general success advocate, had given explicit letters to him to be given to Kolkata. These letters purportedly contained Naxal making – some contained data on police underhanded substances and essential freedoms. Censuring the denounced for sedition , the High Court alluded to the tremendous mercilessness by bound Naxalite packs against individuals from the military. In any case, it didn’t clarify how the direct having a spot and transport of forming could incorporate a dissident show. Further, the High Court didn’t resolve the subject of inciting to savagery, which was obviously missing for the current condition. Thusly, the judgment of the Chhattisgarh High Court for the current situation has additionally been the subject of colossal assessment.

Conclusion

Since its early phase in the court of Star Chamber in England , the law of sedition  has been portrayed by shortcoming and non-consistency in its application. By keeping its expansion intentionally dull, times of individuals from the overseeing political class have guaranteed that they have a contraption to blue pencil any discussion that battles with their propensities. The courts have in like way been not prepared to provide a reasonable guidance to the law. While the continue to go condition on the law in India was put down as precisely on time as 1960, the law of sedition  is portrayed by its wrong application and use as a contraption for impelling. Along these lines, a piece of the purposes for which individuals have been saved under the arrangement (and reliably kept) join slanting toward a Facebook page, reproaching a standard yoga master, pulling for the Pakistani social occasion during a cricket match versus India, addressing a solicitation about whether the stone-pelters in Jammu and Kashmir were the genuine sacred individuals in a school exam,165 making youngster’s shows that obviously impel savagery and giving a discussion at a get-together including the different frightening existences introduced by the furnished forces.167 An appraisal of the judgment of the Supreme Court in Kedar Nath itself shows certain deficiencies in how the law is at present seen. There has been a change by the manner in which we comprehend ‘security of the state’ as a ground for binding the choice to talk straightforwardly and articulation. Further, an adjustment of the idea of the public force and the shortcoming of the ordinary individuals to be affected to viciousness by a provocative talk has besides decreased incredibly.Surely, even the upkeep of ‘public solicitation’ can’t be used as a ground to legitimize these laws as it is wanted to address neighbourhood harmony and legality issues instead of exercises affecting the real reason of the real State.

Author: Yash Tewari, Amity University Lucknow

Editor: Kanishka Vaish, Senior Editor, LexLife India

EVOLUTION OF LGBTQ+ RIGHTS IN INDIA: BATTLE OF LGBT+ COMMUNITY AGAINST SECTION 377 OF IPC, 1860

Reading time : 10 minutes

Introduction

Section 377 of Indian Penal Code, 1860 was brought in India by the Britishers. This Section criminalised all sexual acts “against the order of nature”. This Section was not only directed against the homosexuals but also covered all other forms of non-traditional sexual intercourse even in the course of heterosexual union. Hence, the LGBT+ community was not able to express their sexual orientation as it was considered a criminal offence. Therefore, the battle of the LGBT+ community began for the decriminalisation of Section 377. This article talks about several judgements which relate to the validity of section 377 and how section 377 was finally decriminalised in the Navtej Johar’s judgement.

  • Pre-Naz Foundation case situation i.e., before 2009

   Section 377 of Indian Penal Code, 1860 was still in force during this time.

In the case of Jayalakshmi v. State of Tamil Nadu[1], a transgender, charged for theft was arrested by the police. He was sexually abused in the police station and finally, he put himself on fire in the police station.

Theapathy towards LGBTQ+ was also present when health services are to be provided to prisoners. In Tihar jail[2], the medical team did the inspection and found out that sodomy was being practiced in the prison premises. So, they suggested the inspector general to provide condoms to the inmates to prevent STIs. Despite this, inspector general refused this idea as this might became the ground where homosexuality would be practiced which was punishable.There have been numerous instances like this wherein the name of implementing Section 377, several rights of LGBTQ+ had been violated.

  • Naz foundation v. Govt. of NCT[3](2009)

The Naz Foundation is a non-governmental organisation. It works on creating awareness about prevention of HIV/AIDS and sexual education and health since 1994. In 2001, the organisation filed a writ petition in the Delhi High Court and challenged the constitutional validity of Section 377 of Indian Penal Code,1860, claiming this section violated Article 14, 15, 19 and 21 of the Indian Constitution.

The court held that Section 377 to be unconstitutional which violates Article 14, 15 and 21 of the Indian Constitution. The Court held that Section 377 violates Article 14 because it creates an unreasonable classification and targets homosexuals as a class. The Court held that the term “sex” is inclusive of the word “sexual orientation”, and therefore discrimination on the ground of sexual orientation is violative of Article 15. The Court also noted that the right to health is one of the components of the right to life under Article 21, and concluded that Section 377 obstructs public health because it further the problems of the spread of HIV disease.

  • Suresh Kumar Koushal v. Naz Foundation & Ors.[4]

One part-time astrologer by the name of Suresh Kumar Koushal sought the permission of the Supreme Court to challenge the verdict of Delhi High Court in Naz[5], and was permitted to do so. Several religious groups then also filed to challenge the decision in Naz’s case.

On 11th December 2013, the Supreme Court reversed the judgment of the Delhi High Court and homosexuality would be an offence under Section 377.

The court in this judgment expressed that there’s a presumption of constitutionality of Section 377 of the Penal Code, 1860 (‘IPC’) since it has not been revised or annulled by Parliament in spite of the fact that it had a chance to do so while amending the IPC provisions related to sexual assault.[6]

The court reasoned that in order to conclude that LGBT people in India were being discriminated against, there was insufficient evidence before the Court. The Court makes a distinction between sexual acts and identities, as though the two were not in any way related. Turning a blind eye to the materials placed before the court, the judges noted that the LGBT community is only a “minuscule fraction of the population of the country” suggesting that they did not need protection from the law.

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  • National Legal Services Authority v. Union of India & Ors.[7](2014)

The National Legal Services Authority (NALSA) is a statutory body which provides legal aid and services to oppressed, underprivileged sections of our society. NALSA realised that the transgender community have been facing discrimination at the hands of society and have been denied fundamental rights due to the fact that they were not considered male or female. Society shunned them and treats them as an outcast. These individuals also turn to begging or prostitution, rendering them more vulnerable to STDs and crimes such as human trafficking, since they are continually rejected and do not have access to services. Hence, NALSA filed the case before the Supreme Court to address this issue.

The ‘third gender’ status for hijras or transgender was established by the Supreme Court in its landmark judgment. As before, transgender people were expected to identify themselves as either male or female, but they were able to proudly accept themselves as transgender after the verdict. But aside from this, what made this decision so special was that it laid down the foundation to guarantee a whole range of fundamental human rights for the transgender community, which can be inferred as follows:

  1. The court held that the refusal to recognize their identity was contrary to Articles 14,15,16 and 21 of the Constitution of India. In addition, the Supreme Court ordered the Government of India to treat “Third Gender” members as an economically and socially backward class. It was also stipulated that, in the light of Articles 15(2) and 16(4) of the Indian Constitution, the government should establish suitable policies for the transgender community to ensure equal opportunities in education and jobs.
  2. The court accepted the distinction between sex and the biological elements of sex. In order to include genital, secondary sexual features, chromosomes, etc., the court specified biological characteristics, but defined gender attributes as one’s self-image, i.e., the deep emotional or psychological sense of sexual identity and character of a person that is not limited to the binary sense of male and female, but may lie on a broad spectrum.

After this judgement, there was awareness and recognition of transgender rights for example, the state of Kerala formed certain policies for Transgender in 2015. Many other states like Tamil Nadu and Maharashtra established Transgender Welfare Board in their respective states.

  • K.S. Puttaswamy & Anr. v. Union of India & Ors.[8](2017)

This judgement is also known as ‘Aadhar judgement’ or ‘Privacy Judgement’ as the right to privacy was held as a fundamental right which is a facet of Article 21 of the Indian Constitution. In this case, the opinion of Justice Chandrachud contained a section entitled “discordant notes.” The first was about the case of Jabalpur v S.S., Additional District Magistrate[9], Shukla which upheld the denial of fundamental rights, while the second part applied to the case of Koushal[10] denying the rhetoric of the LGBTQ+ community’s “so-called” rights. Koushal judgement is also termed as bad law in the privacy judgement.

The judgement states that the state does not have any control over the intimacy between consenting adults of the same-sex. Sodomy laws breach equality by targeting a section of society as they have alternate sexualities and don’t follow the traditional gender norms. Such a law continues to perpetuate biases and gives the state the power to further create a stigma around the LGBTQ+ community. This led to the chilling effect in the exercise of their freedom. Not only their sexual orientation is inherent to the identity of the LGBT+ community but also forms a component of liberty, dignity, privacy and individual autonomy and equality.   

  • Navtej Singh Johar & Others v. Union of India[11](2018)
  1. In its decision on 6 September 2018, the Supreme Court of India decriminalized same-sex relations. CJI Dipak Misra quoted the German thinker, Johann Wolfgang von Goethe, “I am what I am. therefore take me as I am” that tried to affirm the identity of the LGBTQ+ community.

The Court found Section 377 as arbitrary and violative because it distinguished heterosexual and homosexual individuals solely on the basis of their sexual orientation. Hence, it violates Article 14[12] of the Constitution (right to equality). The Court further stated that from Article 21 flows the right to dignity, privacy, and sexual autonomy and Section 377 violates these rights guaranteed to a homosexual person. Furthermore, the Court held that Section 377 violates Article 19(1)(a) of the Indian Constitution (freedom of speech and expression).  The judgement directed the Union of India to give the judgement some publicity using television, radio, print and online media from time to time, and initiate programmes to reduce stigma around the LGBTQ+ community. The Yogyakarta Principles which talk about the rights of sexual minorities were acknowledged by the court in this case.

  • While the Navtej[13] case is a major victory for the LGBT+ community in India, the fight[14] for civic, social, and political equality is far from over[15]. People belonging to gender and sexual minorities continue to face discrimination[16], abuse, and violence in all aspects of life which is further exacerbated by other intersecting identities, including caste, class, and religion[17].
  • The Indian government has managed to resist discussing its LGBT+ population’s problems and, despite the 2018 verdict, has remained apathetic to their realities. This is evident from its failure to enforce the guidelines of the Supreme Court to sensitize the public and government officials to eradicate social stigma and discrimination against LGBT+ individuals.

Also read: Corporate Governance in Multinational Corporations

  • Transgender Persons (Protection of Rights) Act[18]

The Government of India introduced and passed the 2019 Transgender Rights Bill in the Lok Sabha in August 2019. The Bill was also passed by the Rajya Sabha and became law by a December 2019 Presidential Notification.

This Act has been criticized by many transgender representatives, activists and legal scholars.

There were several reasons for the widespread criticism, some were: –

  1. An individual still needs permission from the government of the state to prove their chosen gender which is against the idea of the right to self-determine the identity and against the NALSA judgement.
  2. The Act reduces the punishment for sexual assault on transgender persons (6 months to 2 years) compared to cis-gendered women.
  3. The Act remains silent on reservation for transgender persons even though they are considered as socially and backward classes from the NALSA judgement.
  • Conclusion

Section 377’s impact has gone well beyond criminalizing. The presence of this provision has increased myths of sexual orientation. It has given the state power to suppress the identity of the individuals. The threat of persecution has led to same-sex marriages being closed down. Hence, the judgement of Navtej[19] brought a ray of hope for LGBT+ community by finally decriminalising Section 377 of IPC, 1860 and freely express their sexual orientation as it is their fundamental right which emanates from the Indian Constitution.

[1] (2007) 4 MLJ 849.

[2] Siddharth Narrain, “The Queer Case of Section 377”, Sarai Reader, available at http://archive.sarai.net/files/original/67296a7644a5664a9733aabf58b238b1.pdf (last visited on Feb. 14, 2021).         

[3] (2009) 111 DRJ 1.

[4] (2014) 3 SCC 220.

[5] (2009) 111 DRJ 1.

[6] Siddharth Narrain, “Lost in Appeal: The Downward Spiral from Naz to Koushal”,(2013) 6 NUJS L Rev 575.

[7] (2014) 5 SCC 438.

[8] (2017) 10 SCC 1.

[9] (1976) 2 SCC 521.

[10](2014) 3 SCC 220.

[11] (2018) 10 SCC 1.

[12] INDIA CONST. art. 14.

[13] (2018) 10 SCC 1.

[14]“Living with Dignity: Sexual Orientation and Gender Identity Based Human Rights Violations in Housing, Work, and Public Spaces in India”, International Commission of Jurists, June, 2019, available at https://www.icj.org/wp-content/uploads/2019/06/India-Living-with-dignity-Publications-Reports-thematic-report-2019-ENG.pdf (last visited on Feb. 16, 2021).         

[15] Chakrabarti, A. “Queer freedom? A year after the Section 377 verdict, LGBT community still doesn’t have these rights”, News18, Sept 6, 2019, available at https://www.news18.com/news/buzz/queer-freedom-a-year-after-Section-377-verdict-lgbt-community-still-dont-have-these-rights-2299373.html (last visited on Feb. 16, 2021).         

[16] Banerji, A., “One year after landmark ruling for LGBT+ rights in India, challenges persist”, Reuters,Sept 6, 2019, available at https://www.reuters.com/article/us-india-lgbt/one-year-after-landmark-ruling-for-lgbt-rights-in-india-challenges-persist-idUSKCN1VR256 (last visited on Feb. 17, 2021).         

[17] Ahmed, R, “First person: As a persecuted gay Muslim from Bangladesh seeking refuge, I wasn’t welcome in India”, Scroll.in, Dec 25, 2019, available at https://scroll.in/article/947811/first-person-as-a-persecuted-muslim-bangladeshi-seeking-refuge-i-wasn-t-welcome-in-india (last visited on Feb. 17, 2021).         

[18] Transgender Persons (Protection of Rights) Act, 2019 (No.40 of 2019).

[19] (2018) 10 SCC 1.

Author: Aadi Kushwaha

Editor: Kanishka Vaish, Senior Editor, LexLife India.

SEXUAL ASSAULT AND PHYSICAL CONTACT

Reading time : 6 minutes

A perusal of the recent judgement of Bombay HC on POCSO Act

Section 7 of POCSO Act defines Sexual Assault. It states that “Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child  touch the vagina, penis, anus or breast of such person or any other person, or does any other Act with sexual intent which involves physical contact without penetration, is said to commit sexual assault.”

Now consider this example ; A takes B ( who is a 12 year old girl ) to his house and presses her breasts from above the clothes and tries to open her pants. Going by Section 7, is this Act (of A) a sexual assault on B ? Keep your answer in your mind and read the judgement of the Hon’ble High Court of Bombay. The Court in Satish v. State of Maharashtra[1] , where the facts were similar to the above example held that it was not Sexual Assault. It was stated that “pressing of breasts” from above the clothes does not come within the definition of sexual assault under Section 7 of POCSO Act as there was no skin to skin contact. However the  accused was convicted under Section 354 of IPC.

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There are a few problems with this judgement

  1. While POCSO Act is gender neutral, section 354 is not,  which means under POCSO Act both girl and a boy can be victims but under Section 354 of IPC only a female can be a victim. Considering this in mind let us assume that the incident in the present case happened with a boy , there would have been no conviction either under POCSO Act or under 354 IPC.
  2. Going by the logic of the judgement if someone inserts the vagina or anus of a female child when she is wearing a dress, it would also not amount to sexual assault.

The intention of the legislature behind this act was to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of special courts for trial of such offences and for matters connected therewith or incidental thereto. The judgement of the Hon’ble High court overlooked this crucial intention behind the Act.

The model guidelines issued under Section 39 of the POCSO Act, 2012 by the Ministry of Women And Child Development states that “the Act recognises almost every known form of sexual abuse against children as punishable offences, and makes the different agencies of the State, such as the police, judiciary and child protection machinery, collaborators in securing justice for a sexually abused child.” To give such an interpretation to the law by the courts would be contrary to securing justice for sexually abused children.

The necessary ingredients that constitute the offence are as follows. Firstly, there must be a sexual intent. Secondly, the vagina, penis, anus or breast of the child should be touched. Thirdly, the child should be made to touch the vagina, penis, anus or breast of the alleged person. Fourthly, any other act which involves physical contact without penetration but with sexual intent.

The main ingredient which needs to be seen here is ‘sexual intent’. In the present case, the accused on the pretext of giving the victim a guava took her to his house where he pressed her breast and attempted to disrobe her. These are proven facts. It can be clearly concluded from the facts and circumstances that there was sexual intent on part of the accused. The second ingredient is also getting fulfilled. As the word ‘or’ is used in the section, so mere fulfillment of second ingredient would suffice the cause of Sexual Assault and hence would attract Section 7.

This judgement received a lot of criticism from retired judges, academics, lawyers, etc. Justice Lokur, former Supreme Court Judge noted; “the judge who delivered the two POCSO Act judgements was a deputy director in the judicial academy. Now I wonder what kind of judicial education she imparted”

A certain section of people are praising the judgement stating examples such as; “What if someone touches the breasts of a minor girl from above the clothes by mistake”. The answer to this is clear and simple. If there is no sexual intent there is no sexual assault. The Delhi High Court in Ravi v. State of Delhi[2] held that holding the hand of the victim with sexual intent amounted to sexual assault. In Ismail M. v. State of Kerala[3], where the accused used to hug and kiss the minor  child after having sexual intercourse with the child’s mother in front of her , the court held that this would come under the definition of sexual assault under Section 7.

Before this, no court has delved into the territory of knowing whether the alleged touch was made from above the clothes or below them. This court by unnecessarily going into the textual interpretation of Section 7 opened a ready made defense for child abusers.

Fortunately, the Supreme Court stayed the acquittal of the accused in respect of offence under Section 8 of POCSO Act, after an SLP was filed and it was argued by the Attorney General that the impugned judgement is likely to set a dangerous precedent.

[1] Cr Appeal no 161 of 2020, Bombay HC.

[2] 2018 SCC ONLINE DEL 11183.

[3] 2019 SCC ONLINE KER 2787.

Author: Navdeep

Editor: Kanishka Vaish, Senior Editor, LexLife India.

Explained: The Curious Case of Spiritual Guru

Reading time : 10 minutes

INTRODUCTION

The case in focus this time around isn’t peculiar solely by its nature but rather in terms of the balancing of laws on liberty, human rights and justice. It brings into question the effect that the roles of societal ideology have to play whilst also determining the ever-broadening idea of free will. To be more specific, how much free will is, quite literally, free by nature of encumbrances?

The ethos of Indian culture, going so far as to include most of Asia as well, is entrenched deep into parental acceptance, familial responsibilities, and the like. This is all unlike the west where independence is the singular quality that dominates majority opinion. With that in mind, cases where one seeks to stray away from normalized, vastly accepted, preconceived notions of sticking to tradition, has often led to what is expected of a rational human, born and raised in an atmosphere that promotes exactly that- a perception of shock, disbelief, disapproval. And while in neither case is one set of credo better than the other, one could argue that the levels of tolerance vary greatly. Whether for better or worse is to be seen.

BACKGROUND OF THE ISSUE

The facts extend to the State of Kerala, where the petitioner- a doctor by profession- who as a member of the Royal College of Psychiatrists attained qualifications from London, renounced the world and what it had to offer for a more spiritual state of living. During the course of which, he was said to have met a woman. Her parents had sought his help hoping that counselling sessions would aid with her bouts of depression.

It was alleged that using said guise, the petitioner developed an obsessive relationship with the detenue and claimed her as his ‘spiritual live-in partner’ and ‘yoga shishya’. This led the parents to believe that their daughter needed treatment and withdrew her from any further sessions with the petitioner. In retaliation, the Petitioner filed a Habeas Corpus plea at the Kerala High Court seeking for the removal of the detenue from her parental home.

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WHAT IS THE KERALA HIGH COURT’S ORDER?

The High Court’s decree indicated refusal to remove the girl from her parent’s custody despite her insistence for the opposite. The court based much of their decision after ordering for a report on the Petitioner’s antecedents whilst also using the Hadiya case as a line of distinction.

Through the enquiry conducted, it was noted that the Petitioner was a married man who was the father to two children. The first floor of his family house was said to be turned into an ashram, where he lived. The mother of the Petitioner, in an unsigned statement, expressed disapproval and suspicion over his activities and was thus not convinced about the so-called spiritual life that he led.

The High Court also unearthed a case where the Petitioner was accused under the POCSO act where it was alleged that he misused his credentials and sexually abused the victim at his residence. However, the victim later retracted her allegations and due to a lack of factual evidence, the petitioner was no longer a suspect to the crime.

However, regardless of what was discovered, the High Court wished to attain certainty that the girl was indeed capable of making her own decisions. To do so the honorable division bench tried to persuade her to interact with a psychiatrist or a psychoanalyst in order to gain expert opinion. This was met with complete refusal. When tied along with the interactions held with the girl herself, as well as the obsessive behavior coupled with hysteria that was witnessed alongside no evidence of physical abuse as alleged by the girl, the High Court decided to invoke the Doctrine of Parens Patriae.

The Doctrine of Parens Patriae stands for “Parent of the Nation” in latin terminology. In Law, it is used to denote the powers that are bestowed upon the State to intervene in matters where the parent is abusive or negligent in nature, thus acting as the parent of any child or individual who is in need of protection. The Constitutional courts of the country may exercise such jurisdiction only in exceptional circumstances where the parties are mentally incompetent, are minors or if it is proved that the parties have either no parents/ guardians or an abusive/negligent parent/ guardian.

The High Court thus held that on finding the girl mentally incapable of making her own decisions, it would be best if she were to be retained at her parental home as they remain the best persons to address any issues relating to her mental health. They also stated that given the Petitioner’s antecedents, he cannot be trusted with the custody of a 21 year old girl on the mere grounds of tutoring her on spirituality.

HABEAS CORPUS PLEA IN APEX COURT

The Petitioner thus went on to file an appeal in the Supreme Court, challenging the decision of the High Court. The idea of a Habeas Corpus plea rests upon the ideal of producing a body that has been illegally detained, before the court. The element of illegal detainment is said to have stemmed from the statement of the detenue that was recorded wherein she expressly stated that she was held against her will and subjected to physical violence and thus wished to return to the Petitioner. It was also averred that the girl’s independent free will was not taken into consideration at all by the court.

Despite the harassment alleged by the girl evident from the emails sent to the petitioner as well as to the Kerala State Human Rights and Women’s Commission, the Appellant impressed on how much of it was ignored in the decision making process of the division bench of the Kerala High Court that oversaw the matter.

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PETITIONER’S CONTENTIONS

The Petitioner’s contentions can be summed up in four main points:

The first being that the Petitioner himself was not seeking for the subject to live with him but rather to be set free from the constraints placed upon her and the lifestyle she chooses to lead by her parents.

Secondly, the subject is a brilliant student with an enviable academic record to prove it. It was contended that she was a well-educated, adult woman who was perfectly capable of thinking on her own and making decisions about her life.

It was further contended that the parents of the detenue were moved by fury due to the choices she made to pursue the Vedantic Principles of Moksha, Sanyasa and Divine Yoga with the Practitioner, thus leading to a curtailment of the subject’s freedom to choose her own way of life and living as per her own personal preferences. This thus defeats the purpose of the High Court invoking the Parens Patriae doctrine which is only meant to be exercised in exceptional cases for the benefit of the person in need of protection.

The fourth contention lay on the grounds of the inquiry made by the High Court as to the Petitioner’s antecedents which went against the spirit of the Hadiya Case. The plea went on to expressly state the following,

“the song of liberty is sung with sincerity and the choice of an individual is appositely respected and conferred its esteemed status as the Constitution guarantees” and that “parental love or concern cannot be allowed to fluster the right of choice of an adult.”

CRITICAL ANALYSIS

Favourable arguments on either side may be crafted, however, given the factual circumstances of the case it remains highly unlikely that the courts of law would seek to promulgate a decision based upon hypotheticals. The doctrines of law rest upon deep symbolisms of justice founded upon concrete evidence leaving only room for the best possible outcome. The Kerala High Court stands as the genesis to the Hadiya case upon which a partial reliance was felt in the Honourable Justices’ concluding remarks influencing judgment tonality.

CONCLUSION

The plea itself remains pending before the Supreme Court as the bench sought to let the High Court deliver its judgment first. Whether one chooses to side with either party and whether the case will delve further into the rights of life and liberty enshrined in the Constitution is yet to be seen.

Author: Nengchonghoi Bora

Editor: Kanishka Vaish, Editor, LexLife India.

IEA, 1872 : Doctrine of Res-Gestae

Reading time : 10 minutes

Introduction

Res Gestae is a Latin word meaning “action complete”. Res Gestae is used to refer to an event statement proving that an event occurred because it was spoken when it was observed.

For example, when people notice that there was a fire in a crowded cinema, and someone shouts “FIRE”, res gestae is displayed. This statement can be interpreted as evidence that a fire has occurred.

Res Gestae was once considered to be an exception to Hearsay’s law. This is because it refers to a phrase that is pronounced too close to the case so that it can be used to show that the event has taken place. Statements according to the Res Gestae doctrine are made naturally and naturally, so anyone listening to them has no space for confusion or misunderstanding. The argument will then be used as evidence if a witness testifies and repeats such a statement in court. The court therefore finds such claims to be completely reliable.

The claims of the Res Gestae doctrine can be divided into three categories.

    • A word or phrase that fully or partially describes a bodily action.

    • Intervention voluntarily enough to succeed in preventing someone from telling the lie against them.

    • A statement confirming the individual’s state of mind.

In some jurisdictions, the word res gestae was also used in connection with receiving images of suspects photographed by police. The tool for proving what proof has been raised in court is the most demanding field of criminal law. This is Res Gestae, one of the test’s values. The Res Gestae doctrine is founded on the premise that proof of irrelevant considerations cannot be rejected by the courts, taking into account all relevant aspects of the chain of cases before a final decision is made within the criminal justice system. Even if any form is distinct from the circumstance.

This is because, in criminal law, the concept of restitution is adopted to prove certain basic evidence. Without the aid of missing evidence, it is difficult to prove the whole argument. Another research study known as the doctrine of Res Gestae may support this. Res Gestae is a Latin term meaning that the same transaction is part of it. This applies to the portion of the event that is related directly or indirectly to the transaction of the main event.

The importance of the Res Gestae doctrine is unclear and inconclusive. It’s a confusing term that makes it impossible to say exactly what is considered the doctrine of Res Gestae. This was not explicitly stated as courts are free to consider the relevant evidence based on all facts in the case.

Res Gestae’s History

Res Gestae rules are based on Thompson v. Trevanion, has been deemed to be able to take a statement of compliance with the law for explanation. In 1736, Ambrose v. Clendon, if the statement was true, it was issued recognizably. The use of the Res Gestae doctrine became a brief discussion of the evidence of Home Took’s betrayal case.

However, the development of this doctrine began in 1805 and was freely used in connection with the term after Aveson’s fall against Lord Kinnard. And it can be said that this exception has been established since the middle of the 19th century. The famous Cockburn CJ decision was discussed in principle. Exception to Bedingfield Res Gestae and rumors. Sir Cockburn thought it was unacceptable because it was made by her after this statement was over. He said he wasn’t part of the transaction, he said it was when the transaction was completed and the transaction was split. This decision was virtually invalid, but it correctly explains the previous principles used to define the Res Gestae exception, which often resulted in unfair consequences.

Bedingfield’s decision was actually too strict. However, this decision was made by Ratten v. The doctrine of R, Res Gestae was defined by common law in free and broad terms. In another example of the queen to the queen, Sir Wilber said: “The testimony would have been accepted as part of Gestae Row, as well as the tight connection of space and time between the statement and the statement. The shooting, but how the statement was made when the police called. And the tone of the voice clearly showed that this statement was made by a woman who is under the overwhelming pressure of modern events. “

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Gestae Travel under the Indian Evidence Act

Section 6 of the Indian Evidence Act describes the principles of res gestae. Evidence based on rumors will not be admitted in court. However, res gestae is an exception to rumors. This is due to the spontaneity and immediacy of such statements with little time to invent. Therefore, such statements must be followed simultaneously or at least immediately with the steps that constitute the offense.

Res gestae contains facts that are part of the same deal. So it is important to study what a transaction is, when it starts and when it ends. If the fact cannot be linked to the underlying transaction it is not valid as it cannot be the result. If a statement is made pursuant to the terms of the preamble, that statement is part of the same transaction and is permitted in court. The strengths of section 6 are ambiguous. Each criminal case must be judged on its merits. If the evidence relates to the same transaction, it is allowed in section 6, but reliability is the judge’s assessment.

Res Gestae test

1.If the first test has a causal relationship or, conversely, a causal relationship with the fact that the facts in question are intended to be presented as evidence, then we can say that this fact is part of the following: ‘The same deal with the facts in question. However, this test is not important because all events are a combined effect of numerous effects. Assuming that all these causes and effects are considered relevant and evidence of all such facts is permitted, the exact purpose of limiting evidence to relevant facts in court is entirely possible. Valuable trial time is wasted hearing evidence of distant cases and distant outcomes.

2. The second test assumes that facts about proximity to time and location are present in the segment. The facts which are obviously taking place concurrently and in the same place are closely linked and can therefore be considered important to this section. This is not necessary, however, since the section itself takes account of the possibility that the facts that occur at various times and in different locations which relate to the facts at issue, which are part of the same transaction.

3. The third test implies that the fact that you are finding the facts and evidence in question must be a consistency of action and intent. It is argued that it  is not worth replacing one passage with another.

Case Analysis of Res Gestae Doctrine

The Indian Res Gestae judiciary interpreted the production only as a statement immediately after or immediately after the event, but not “at the time” where the production was permitted.

1. Andhra Pradesh Province v Panna Satia Narayana

The accused killed his wife and daughter. Statement from the deceased’s father that the defendant’s father said over the phone that his son had killed the deceased. Transactions of the absence of conclusions about whether the information provided by the defendant to the father of the deceased killed the deceased. This statement cannot be construed as referring to a section.

  2. Jagser v. Hariana Province

The confirmation of the death claim in this case came from the testimony of Mangat Ram, brother of the deceased father Ruldus, who provided evidence confirming the material aspects of the prosecution. They don’t claim that the accused set fire on Yasin Khan, but they said he ran after a while because they both sued Yasin Khan and his wife Pinky to the house to settle the dispute. At home. Yasin Khan on fire. By applying the principles of res gestae, the two defendants apparently appear to be involved in the crime. The medical certificate duly confirms the ocular medical certificate.

Exception from Res Gestae

An exception to the theory that professional proof is not evidence is Res Gestae. The acceptance of Res Gestae as an exception to the professional rule can be defined as a professional statement relating to relevant facts or comments made during the stress and impact of the incident by the witness. Or with authorization. The rationale of this argument is that in such a striking statement, since the case is so surprising and can only say the facts, the witness is unable to focus on the case. From Suhar v. W.P. Will this issue bear witness to what the victim said to him? As an exception to the general rule, Article 6 was determined that rumors were not accepted as facts.  However  It should be remembered that “the statement is about the same time as the fact of the matter and there should be no production disruption to be part of the same transaction.” In this situation, proof is allowed. As witnesses arrived at the scene, they discovered the body of the deceased and wounded the unconscious survivor.

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Criticism

Even when Res Gestae’s concept was in its infancy, there were always signs that it was not well received. It gained popularity due to its comfortable ambiguity. Wigmore sharply criticized the use of the phrase Res Gestae. He wrote that it was “not only completely useless, but also positive damage.” “All test rules applied exist as part of other established principles, and this term is useless because that principle can be explained. This term is detrimental because it confuses one rule with another because of its ambiguity, creating ambiguity for both constraints. Thus, Wigmore concluded that “Res Gestae” would not be mentioned.

Conclusion

In accordance with Res Gestae, proof is usually addressed where it can not be given under part of the Humanitarian Evidence Act. When the case was dismissed because of a lack of facts, lawmakers sought to prevent discrimination. The courts have always acknowledged that it is not necessary to extend this doctrine indefinitely. It is important to judge each criminal case on its merits. This is permitted by the sect if the proof is part of the same transaction. How accurate this is, however, is up to the discretion of the court. This is a more nuanced and ambiguous doctrine, and this is the difference.

There is sharp criticism of the ambiguity of this doctrine. But we can see that only the measures taken to form Res Gestae meant what initially began. Now all acts or comments made to commit a crime at the same time or in a single scene of the crime. Or at varying moments at different times. The position is considered part of the same transaction, so it is permitted in compliance with the concept of Res Gestae. Dean Wigmore said: “The term Res Gestae is not only totally useless, but also positively harmful under current law.” Never should this be discussed.

Authors: Alan John Abraham

Editor: Kanishka Vaish, Editor, LexLife India.

Madras HS Goes Suo-Motu Against Tamil Nadu Drug Menace: What is the outcome?

Reading Time: Less than 4 minutes.

Drugs are an evil which not only corrupt the bodily functions of the individual consuming them, but also the functioning of the society as a whole. They have spread their claws deep into various societies across the world, with nearly thirty-five million people suffering from drug abuse disorders and many more indulging in its consumption.

Drug peddling has become a menace in India affecting people of all ages, but specifically children and youngsters, ruining the life of the drug addict as well as the society subsisting around them. Young people can be seen to be indulging in this self-destructive habit due to peer pressure or due to the misconception of it being fashionable and trendy.

Also read: Anti-drug law in India

In light of this, the Madras High Court empowered by Article 226 took suo motu cognizance of drug peddling and abuse in the State of Tamil Nadu, in a case dealing with a drug peddler’s detention under the Tamil Nadu Goondas Act, 1982.

What are the facts of the issue?

The matter of the increase in drug peddling in India and particularly in the State of Tamil Nadu, came in front of the Madras High Court, as an indirect consequence of a plea of habeas corpus made by the spouse of a drug peddler, against his detention under the Goondas Act.

Also read: Concept of writ petition

The Court concluded that on account of the delay in considering the representation filed by the detainee, being violative of fundamental rights, the detention stood vitiated. The Court also reprimanded the authorities to be cautious in dealing with drug peddlers due to the seriousness of the situation.

Also read: Rights of prisoners: Development in India

The High Court noted that the issue is entrenched in the society, and active measures have to be taken to demolish it from its roots. Concern was shown towards the youth falling into the trap of drugs because of the ready availability of the same in areas accessible to them.

The probability of the country being used by the drug mafia to smuggle drugs from one country to another was also brought to light. In furtherance of the same, the High Court ordered the Central as well as State Government to furnish information regarding the factual scenario of drug peddling in the country and the steps that have been taken to deal with the related issues.

What are the legal provisions involved?

The Constitution, by virtue of Article 47 creates a duty upon the Government to take steps to curb the usage of drugs which are not used for medicinal purposes, and are injurious to health.

Obligations under the Convention on Narcotic Drugs, 1961, the Convention on Psychotropic Substances, 1971 and the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 have also been undertaken by the State, making it internationally liable to take action against the problem.

The fulfilment of this obligation led to the enactment of the Narcotics Drugs and Psychotropic Substances Act, 1985 by the Central Government, in order to make the existing regime stringent.

The Act, deals with offences and penalties in Chapter IV, and lays down punishments for the preparation, manufacturing, import, export as well as consumption of several drugs and substances like cocaine, opium, cannabis, heroin.

Section 4 of the Act provides for setting up of the Narcotics Control Bureau, which has been tasked with the coordination of the various agencies and State Governments; rehabilitation and care of drug addicts; and overall responsibility of ensuring that drug abuse and trafficking is dealt with as per the Act.

Also read: Anti-drug law in India

Apart from the NDPS Act, various other measures, such as the implementation of the Scheme for Prohibition and Drug Abuse Prevention, Drug Demand Reduction activities, have been taken by the Central as well State Governments, in order to ensure that the health and life of the citizens do not get engulfed by drugs.  

Critical analysis

The youth being easily influenced, become susceptible to the usage of drugs and get addicted to the dopamine high that drugs make them experience. They fail to understand that the high so achieved is temporary.

They start craving that feeling and without realising, the truth of the fact become heavily addicted to the same. These addicts start by committing petty crimes to gain money to procure the drug, but due to their addiction, end up resorting to committing graver and more heinous crimes. They also become easy targets of terrorist groups, which take undue advantage of their pitiful state to further their evil motives.

Also read: Analysis: The Juvenile Justice (Care and Protection of Children) Act, 2015

This problem gains significant important especially in these trying times, with the Covid-19 pandemic having taken a physical, mental and economic toll on the lives of numerous people, drug peddling and consumption might be considered a viable option to relieve a person of the stress and burdens. This calls for strict action on part of the authorities and a need for educating the youth about the harmful and long-lasting effects of these drugs.

The war against drugs is something that has to be fought by all stakeholders and the responsibility of ensuring that it is won has to be shouldered by the authorities. Though laws dealing with drugs exist, their strict compliance on part of the authorities has to be ensured.

The administration has a crucial role in ensuring that people involved in this racket do not escape the legal system due to a small technical issue that could have been avoided easily. At present, the number of rehabilitation centres in the country are quite low, making the system incapable of catering to the actual needs of the persons affected by this problem.

There is a need to change the manner in which the situation is being dealt with, and it is pertinent to shift the current focus to one which emphasizes the understanding of the cause of the problem.

In conclusion…

Drug abuse is a vicious circle, which has a spiralling impact on the addiction of the individual. The youth who are the future of the country have been most gravely impacted and influenced by the same, with a significant portion undertaking its consumption.

This calls for the Centre and the various States to work in compliance with each other, in order to curb the mushrooming of the same across the country. The provisions of the NDPS Act have to be complied with to ensure that the duty cast on the Government, by the Constitution as well as the International Conventions is duly fulfilled.

The suo motu cognizance taken by the Madras High Court is a positive step towards ensuring that the battle against drugs is won by the individual and the society and not the powdery demon of corruption; but there is still a long way to go before we are completely free from its deep-rooted claws.

Author: Rashmi John from National Law University, Jodhpur, India.

Editor: Astha Garg, Junior Editor, LexLife India.

Here is what Telangana High Court said on Slaughter of Camels

Reading time: 3-4 minutes.

A petition was filed before the Telangana High Court regarding the inaction of the Respondents in connection with the illegal transportation of camels into the State and their consequent slaughtering.

The Petitioner has prayed for a writ of Mandamus, directing the Union to ensure strict compliance of the provisions of the Prevention of Cruelty to Animals Act 1960 (hereinafter after referred to as “the Act, 1960”) and the relevant rules framed thereunder.

The Court has given an interim order before hearing the case on merits. In the interim order, Respondents have been directed to inspect slaughterhouses in the twin cities of Hyderabad & Secunderabad and Ranga Reddy District, to take strict action against those who are violating the laws, and to prevent the illegal killing of camels in the aforementioned areas.

Further, they have been directed to publicize the fact that the transportation and slaughtering of camels is an illegal activity, through electronic and print media. In this article, the author will discuss the legal provisions involved, the interim order, and its ramifications. 

What are the facts of this issue?

During Ramadan, there is a tradition of consumption of camel meat in the State of Telangana. As a result of which camels are illegally (allegedly) transported from Rajasthan to the State and slaughtered.

Also read: Elephant death in Kerala: Legal angle

However, prohibition is placed on the transportation of camels outside of Rajasthan by the Rajasthan Camel (Prohibition of Slaughter and Regulation of Temporary Migration or Export) Act, 2015 (hereinafter after referred to as “the Act, 2015”).

Since the acts amount to cruelty, under the provisions of the Prevention of Cruelty to Animals Act, 1960, and the Rules made thereunder, the Respondents are duty-bound to protect the interests of the animal. 

The Petitioner further submits that since during 2013 to 2017, only seven cases were registered against owners of slaughterhouses where camels were found to be slaughtered, though it has trickled down to zero after 2017.

There is laxity as the Core Committee, constituted by the Animal Husbandry Department on 19.04.2020 and the State Animal Welfare Board are absolutely dysfunctional.

The Respondents contend that the concerned authorities have taken proactive measures to inspect the licensed and unlicensed slaughtering houses functioning in the twin cities of Hyderabad & Secunderabad, and Ranga Reddy District.

What are the relevant legal provisions?

Article 21 read with Article 51A (g), and Sections 3 & 11 of the Act, 1960 make it clear that animals are guaranteed the rights to be treated with compassion, dignity, and to be free from unnecessary pain and suffering. This is the constitutional mandate. In lieu of the same, we have the Act, 1960 and other allied statutes.

Now, the Act, 2015 states that no camel could be transported to any other State for any purpose, including slaughter. Illegally transporting the camels and slaughtering them is an offense punishable under Sections 4 and 3 of the Act, 2015. 

In Animal Welfare Board of India v. A. Nagaraja and Ors (2014 (7) SCC 547), the Supreme Court held that animals have the right to live with dignity and security. Clearly, illegally transporting camels and slaughtering them is a thorn to the many decisions of the Hon’ble Supreme Court.

Also read: Kerala Elephant Tragedy: Legal Angle

Section 11 (1)(d) states that if any person conveys or carries, whether in or upon any vehicle or not, any animal in such a manner or position as to subject it to unnecessary pain or suffering he shall be punishable, in the case of a first offence, with fine which shall not be less than ten rupees but which may extend to fifty rupees and in the case of a second or subsequent offence committed within three years of the previous offence, with fine which shall not be less than twenty-five rupees but which may extend to one hundred rupees or with imprisonment for a term which may extend to three months, or with both.

Let us analyse this situation…

The decision faces the issue of transgressing into the religious arena as the killing of animals for consumption is an exempted ground under the Act, 2015.

Also, petitions are lying before the Hon’ble Supreme Court contending that laws that prohibit propitiation of deity through the sacrifice of animals and birds violate Article 14, which is the right to equality.

Previously also the Hon’ble Supreme Court has refused to interfere in religious affairs and noted that the judiciary could not stop centuries-old traditions of sacrificing animals.

Also read: Restrictions imposed on religious places: Legal angle

In the present case, there are two facets though; slaughtering camels brought from Rajasthan is illegal and punishable, however, camels that are brought from some other places, such as Gujarat, could be exempt from the scope of the instant case. However, the Court has not made any such distinction.

The decision to direct the respondent to ensure strict compliance with inspection and taking action against people who violate the law and bring the camels illegally into the State is one of the mechanisms through which people who violate the laws can be caught and punished. 

In conclusion…

The import of this order is that the Telangana government has now declared transportation and slaughter of camels to be a criminal offence and those caught doing it would be prosecuted and punished if found guilty.

Also read: All you need to know about: The Rights of Accused & Victim

The State Police has advised the public not to engage in activities such as transportation and illegal slaughtering of camels and sale of camel meat.

Further, they have advised the public to report any violations, through call (Dial 100) or Whatsapp (Number 9490617444) with the guarantee that the identity of the person who reports the violation, will be kept confidential. 

Author: Sreyas T Manoj from The National University of Advanced Legal Studies (NUALS), Kochi, India.

Editor: Astha Garg, Junior Editor, Lexlife India.

Padmanabha Swamy Temple Issue: Legal Angle

Reading time: 8-10 minutes.

The Supreme Court bench comprising of Justice UU Lalit and Justice Indu Malhotra, delivered the final judgement in the case concerning the management of Sree Padmanabhaswamy Temple on July 13, 2020. The judgement is being hailed as a victory for the Travancore Royal Family which was involved in a long-drawn legal battle with the state of Kerala. The present case arose from an appeal preferred by the Royal family and its members, from the judgement of the Kerala High Court on January 31, 2011. In the following paragraphs we will discuss the various issues which were dealt with by the Supreme Court.

Facts of the Issue

Sree Padmanabhaswamy Temple is located in the modern-day city of Thiruvananthapuram and finds mention in many historical texts, but its exact origin is lost in antiquity. In the 18th Century, Marthanda Varma became the king of Travancore and carried renovations to the temple and declared himself as the vice regent of the Deity. After India gained independence, the Travancore and Cochin princely states signed the Instrument of Accession and also entered into a covenant with the Indian Union which laid down various terms of agreement in exchange of relinquishment of its sovereign status. Article VIII of the said covenant granted the management rights over the Padmanabhaswamy Temple to the ‘Ruler’ of the Travancore State, which got reproduced in a separate Chapter III of the Travancore Cochin Hindu Religious Institutions Act, 1950 (hereinafter referred to as “TCHRI Act”). Under the Act, the ‘Ruler’ has been given the authority to administer the Temple with the aid of an Executive Officer and advice of a three-member Advisory Committee, both nominated by the Ruler.

The signatory to the original covenant passed away in 1991, after which the rights were inherited by his brother, who has died during the pendency of the proceedings before the Supreme Court. The genesis of the present legal dispute goes back to 2009, when the ouster of a tenant led to a suit challenging the executive authority, which was appointed by the Royal Family.

The tenant, a practicing advocate, questioned the legitimacy of the royal family as administrators of the temple post the death of the original ‘Ruler’ in 1991. This suit was followed by multiple civil suits in various Districts Courts of Kerala, following which the Royal Family moved to the Kerala High Court to get a decision on the common question of whether the successors of the original signatory king claim the rights bestowed on the ‘Ruler’ under the TCHRI Act, 1950. The High Court answered the question in the negative, and granted the State Government complete rights over the temple’s management and ordered for opening of the sacred treasure vaults within the temple’s structure. Aggrieved by the decision, the ‘Ruler’ and the Temple Trust preferred appeals against the High Court’s decision, and later the Chief Thantri of the Temple and some other organisations joined as Intervenors to present their grievances.

 Critical analysis of legal provisions involved

The critical question for consideration was whether the successors of the original signatory can avail the rights bestowed upon the ‘Ruler’ rooted in the 26th Constitutional Amendment of 1971. The 1971 Amendment put an end to the Privy Purses and further inserted Article 366(22) which confined the definition the term ‘Ruler’ to only the person recognised prior to the Amendment. The State argued that owing to the Constitutional Amendment, the title of ‘Ruler’ under the TCHRI Act ceases to hold relevance and any successor of the original signatory is not empowered by law to claim the title.

The Supreme Court, in its wisdom, has sided with the Royal Family and has opined that the Kerala High Court’s judgement was erroneous, incorrect and violative of the historical spirit of the original covenant (signed in 1949). The Supreme Court held that Article VIII of the covenant establishes the special connection of the royal family with the temple which has further been given statutory backing by the TCHRI Act. The ‘special relation’ of the royal family with the temple is explained by the Supreme Court to be in the nature of “Shebait”- which effectively places the royal family as the earthly custodian of the deity and gives them financial and administrative rights in connection to the deity. The Apex Court further remarked that the Shebait rights exists in a historical context and are rooted in the Hindu tradition and customary law of the region and as such, cannot be abridged by an act of the Parliament. Holding this reasoning, the Court ordered that the rights of the royal family remain unaffected by the Constitutional Amendment and extends to all the successors of the original signatory, in perpetuity, and will be passed on and devolved only as per established customs. The Court also decided that the association of the royal family with the temple is independent of the title of being the ruler of the State and it purely exists in Shebaitship. Unless the Shebaitship ceases to be operative in consonance with established customs, no escheat will lie in favour of the State Government.

The Supreme Court, realising the public nature of the temple and the large amounts of wealth it holds, ordered the constitution of two committees- an Advisory Committee and an Administrative Committee. These committees will have members nominated by both the Union and the State Governments, in addition to the members appointed by the royal family. The major responsibilities of the committees will be to aid and advise the day-to-day functioning of the temple. The committees were finalised by the Supreme Court by making minute alterations to the structure proposed by the royal family. The Court has further recognised the rights of the Chief Thantri of the temple and has directed that all rituals and religious practices should be performed in accordance with his instructions and guidance. The Court has further granted Chief Thantri rights over the temporal matters concerning the temple.

Conclusion

The Supreme Court’s verdict in the Temple case reverses the perceived injustices on the Royal Family and devotees of the Temple, following the Kerala High Court’s decision in 2011. By restoring the age-old tradition, the Supreme Court has upheld the religious rights of a community of people who wish to be governed by their traditions without interference from the State Governments. The Kerala High Court, in its decision, ordered for the opening of vaults of the temples which are said to house innumerable treasures. Opening of one such vaults was strongly protested against by the Royal Family and the local population, as it is believed to house an ancient curse which would invite divine calamity on Earth. With the restoration of rights to the Royal Family and the setting up of the two committees, all decisions with regards to the treasures of the vault also rest with them. The decision, apart from holding historical relevance for the Royal Family, is also being touted as a positive step in the direction of freeing Hindu temples and institutions from excessive State control.

Author: Anshum Agarwal from West Bengal National University of Juridical Sciences (NUJS), Kolkata.

Editor: Astha Garg, Junior Editor, Lexlife India