6D12677E-E308-4495-B604-1D09330ABAD5

Yahoo!, Inc. vs Akash Arora & Anr.

Dated: 19th February, 1999

 

Bench: M. Sharma 

 

Petitioner: Yahoo Inc. 

 

Respondent: Akash Arora

 

Background: Any letter, logo, emblem, device, mark, or figure that depicts a firm and its method of business is referred to as a trademark. Although the Indian Trademarks Act only permitted for the registration of products, the court construed it to include services as well. Trademarks existed long before domains were ever conceived of. The judge’s verdict in the Yahoo! case serves as the foundation for later Indian proceedings. The current case raised a significant legitimate issue concerning the subject of passing off under Indian trademark law. The plaintiff in Yahoo Inc. vs. Akash Arora was the owner of the trademark Yahoo and the domain Yahoo.com, both of which are well-known brands with a unique reputation across the globe. The company had been a legitimate firm since 1995 and possessed trademarks in 69 countries, none of which included India.

 

Facts: In India, Akash Arora launched Yahooindia.com to provide digital technology equivalent to those delivered by Yahoo.com. Net Link Internet Solutions was the defendant’s sole proprietorship. The company adopted the moniker ‘Yahoo India’ and commenced using it, including duplicating the Yahoo page’s content, structure, and layout. Yahoo Inc. had accused Akash Arora for using a trademark that was deceptively similar to its own and made his services appear to be the same as Yahoo Inc.’s. In addition, the appellant filed a preliminary injunction prohibiting the accused under Order 39 Rule 1 & 2 of the Civil Procedure Code, as well as a perpetual injunction for passing off under the Trademark and Injunction Act. 

Issues raised:

  • Whether Akash Arora’s enrollment of the domain name Yahoo India to offer services similar to those provided by Yahoo Inc. constitutes a violation of Yahoo Inc.’s trademark and equates to passing off under the Trade and Merchandise Marks Act?
  • Whether the accused are cyber squatters since they are in the complainant’s business field.

Plaintiff’s contention

  • Plaintiff’s lawyer, Mr. Kapil Sibbal asserted that the trademark “Yahoo” and the domain “yahoo.com,” both acquired by plaintiff, were renowned brands with unique recognition and goodwill. As a result, the defendants were passing off their products and services as those of the plaintiff by adopting the domain name ‘YahooIndia,’ which was remarkably similar to the plaintiff’s trademark. The learned counsel extensively leaned on the ratio of the judgements in Marks & Spencer vs. One-in-a-Million to bolster his argument.
  • The plaintiff stated that it is fairly unusual for someone hoping for an authorized ‘Yahoo!’ page with India-specific content to put in ‘Yahooindia.com,’ resulting in the said individual getting at the defendants’ Internet portal.
  • The plaintiff further claimed that the defendants are following in the plaintiff’s footsteps and have sought to commit “cybersquatting” by fraudulently registering a trademark identical to the plaintiff’s. 

 

Defendant’s contention

  • The defendant’s lawyer, Mr. Harish Malhotra, responded by arguing that Section 27 (2) and 29 of the Indian Merchandise Act distinguish between goods and, as a result, the clauses of the act are unrelated to the facts and circumstances of the case situation, which involves services. The learned counsel cited the clauses of Section 2, Sections 27, 29, and Section 30 of the Act in favor of his arguments, claiming that only products are acknowledged for the purposes of bringing an action for infringement or passing off.
  • It was argued that the complainant’s trademark and domain name “Yahoo!” are not applicable in India, and that, as a result, there can’t be any breach of the trademark registration, nor can there be any passing off by both the complainant and the respondents under the Indian Trademarks Act. 
  • It was also claimed that because “Yahoo!” is a common reference term, it could not have acquired any uniqueness, and the defendants have been using disclaimer to avoid any possibility of fraud. 
  • The defendant’s counsel contended that individuals who use the online services and want to access a website are, on the whole, well-informed and educated individuals, and thus there is no likelihood that any service user will approach the defendants’ website with the objective of accessing the plaintiff’s website. 

 

Judgement and Analysis:   

After demonstrating that a company’s domain name was their manner of establishing their online presence, the Court stated that Yahoo.com was the petitioner’s domain, which was not licensed in India but was well-known in India for being one of the first to deliver web directory services. The Court then proceeded on to the respondents’ first argument, which focused on the notion that the petitioner’s domain name “Yahoo” is used in the perspective of a service rather than products, while Section 27(2) and 29 of the Trade and Merchandise Marks Act are used in the context of products. The Judge agreed with the accused that this was not an infringement issue, but disagreed with the counsel’s assertion that there was no passing off. The notion of passing off is likewise recognized in the Act’s Sections 27(2) and 106. Moreover, the cases Monetary Overseas vs. Montari Industries and Neev Investments and Trading Pvt. Ltd. vs. Sasia Express Couriers were cited by the Court. Services were included in scope of passing off in each of these cases, and so the Court determined the defendant’s allegation in this respect to be baseless. The Court stated that to establish passing off, the plaintiff required to establish the presence of their corporate image or goodwill, citing the case of Ellora Industries vs. Banarsi Dass & Ors. The Court also cited the Ellora Industries case and Lord Green M.R.’s remark that the availability of goods was not required to establish passing off. Damage might be caused if the contested trademarks/domain registrations were approximately equivalent if both parties were in the same business field. The Court additionally cited Card Service International Inc. vs. McGee, in which it was determined that a company’s domain name served the same objective as a trademark and hence was qualified to trademark protection. In the same decision, it was decided that a domain name is more than merely an internet address; it is also the company’s means of identifying its visitors. Despite the fact that the term “services” is not featured in the relevant parts of the Act, the Court determined that it falls within the legal principle of passing off. The Court also rejected the accused’s argument that the term “Yahoo” was a dictionary word that was widely used by other businesses. The Court stated that the term “Yahoo!” had achieved originality and individuality, which the bulk of individuals identified it with the plaintiff. In view of these precedents, the Court recognized plaintiff’s prima facie case and issued an ad interim injunction prohibiting respondents from functioning under the domain “Yahooindia.com” or any other misleadingly close relation to “yahoo!” The Court cited Jews for Jesus vs. Brodsky, in which it was ruled that a mere disclaimer was insufficient to redress trademark infringement by the defendant. The plaintiff was also utilizing regional domains like Yahoo.FR (France) and Yahoo.CA (Canada), according to the court (Canada). As a result, the defendant’s use of the term “yahooindia” was likely to cause misunderstanding.

 

Conclusion:

The judgement is regarded as one of the most significant in the field of passing off proceedings. In this situation, successful implementation of intellect and reasoning has been demonstrated. The matter was not only reviewed effectively by the Delhi High Court, but it was also passed quickly and without hindrance.

IMG-9628

National Legal Services Authority v. Union of India & Ors

Dated: 15th April, 2014

 

Bench of Judges: Justice K.S. Radhakrishnan, Justice A.K. Sikri 

 

Petitioners: National Legal services Authority (primary petitioner), Poojaya Mata Nasib Kaur Ji Women Welfare Society and Laxmi Narayan Tripathi

 

Respondents: Union of India and Others

 

Facts

A writ petition (Writ petition no. 400 of 2012) was filed by the National Legal Services Authority (NALSA), an Indian Statutory organ, which was established under the Legal Services Authority Act of 1987. 

 

Another writ petition (Writ petition No. 604 of 2013) was filed by Poojya Mata Nasib Kaur Ji Welfare Society, a registered organization serving the Kinnar community. 

 

Laxmi Narayan Tripathi, who depicted himself as a Hijra, also came to trial and argued that since he is a Hijra, his rights are being denied under Article 14 and 21 of the Indian Constitution, and that the Court must intervene to guarantee that he and other members of the transgender community are not biased.

 

Transgender people in India face pervasive bigotry, prejudice, brutality, and other aspects of stigma. Stigmas like these hinder opportunities and access to services in a multitude of vital spheres such as employment, welfare, education, and so on, impacting the fundamental rights and mental well-being of transgender people. Due to prejudice based on gender identity or expression, transgender people experience the brunt of social and economic exclusion.

 

There is no acknowledgment of their identities, nor is there any right or entitlement to receive a certificate of identification as a “third-gender” as verification of recognition by the appropriate state authorities. Adoption, marriage, inheritance, succession, taxes, and health are all based on a person’s gender, which is decided at birth. However, the identity of transgender individuals was not determined, this culminated in the filing of the petition in the Honorable Supreme Court of India seeking gender reorganization of transgender people. The transgender community urged that since they are unable to portray themselves in terms of binary gender, they are deprived of equitable legal and social security.

 

Shri Raju Ramachandran, a senior counsel appearing for the plaintiff – the National Legal Services Authority – emphasized the unpleasant emotions that members of the transgender community have had and contended that any member of that community has a constitutional entitlement to choose their sex orientation and to uphold and evaluate their identity.

 

Issues raised

  1. The Court had to determine if individuals who don’t fit into the male/female gender binary can be legitimately categorized as “third gender”,
  2. Whether the non-recognition of their gender identity is an infringement of their fundamental rights.
  3. Whether a person born as a male but with a mostly female inclination (or vice versa) has a right to be treated as a female, the same concern occurs when a person undergoes sex surgery. 

 

Analysis

Article 14: Article 14 of the Indian Constitution guarantees equality before the law and equal protection under the law. “The State shall not refuse to any citizen within the territories of India equality before the law or equal protection of the laws,” it states. The Indian Constitution codifies the constitutional rights of its people, which are described in Part III of the Constitution. The right to equality is one such right, which is guaranteed under Articles 14 to 18. Article 14 explicitly guarantees equal protection under the law, implying a constructive statutory duty to guarantee equal protection under the law by implementing requisite social and economic modifications, ensuring that all, including transgender individuals, receive equal protection under the law and no one is denied of it. Since Article 14 does not narrow the term “person” to binary genders, transgender people who are otherwise male nor female are also entitled to legal protection under the law in all fields of government operations, including work, welfare, and education, as well as equal civil and citizenship rights as any other citizen of the country.

 

Article 15 and 16: Discrimination against Indians on the grounds of religion, race, caste, sex, or place of birth is forbidden under Article 15 of the Indian Constitution while Article 16 provides equal opportunity to all people in matters relating to employment of the backward classes in the public sector. Both aspects of gender inequalities and sexism are forbidden under these Articles. It is critical to note that the term “sex” defined under Articles 15 and 16 also extends to individuals none of whom are male or woman biologically. India is a signatory to some worldwide conventions and declarations, which, whilst mixed with the Indian Constitution, obligate the authorities to acknowledge transgender people’s fundamental rights and offer them with same opportunities. Articles 15(2) to (4) and 16(4), when interpreted in conjunction with the Directive Principles of State Policy and various foreign instruments of which India is a member, advocate for social inclusion, which the transgender individuals can only acquire if services and opportunities are expanded to them so that they can live in fairness and on an equal footing with other genders.

 

Article 21: Article 21 of the Indian Constitution states that no one shall be deprived of his life or personal liberty except by the procedures specified by law. The human right to equality includes the recognition of one’s gender identity. Gender, as previously described, is an intrinsic component of one’s identification. As a result, statutory affirmation of gender identity is a part of our Constitution’s right to equality and liberty.

 

The historical context of the third gender identity in India was traced including their prominence in Hindu mythology, Vedic and Puranic works of literature, and their conspicuous position in Islamic royal courts, among other things. The repealed Criminal Tribes Act of 1871 was also mentioned, which described the brutal treatment they suffered during the British colonial era.

 

Section 377 of the Indian Penal Code: According to Section 377, whoever knowingly engages in carnal intercourse against the order of nature with any man, woman, or animal shall be punishable by life imprisonment, or by confinement of any description for a period not exceeding ten years, and shall also be convicted to a penalty. Before the enactment of the Criminal Tribles Act, 1871, which prohibited all penile-non-vaginal sexual practices between males, including anal and oral sex, Section 377 secured a place in the Indian Law, 1860, at a time when transgender people were still usually identified with the prescribed sexual acts. It was imperative to resurrect this section to secure transgender people’s freedom, equitable protection of their rights, and the right to live their lives with dignity, as guaranteed by the aforementioned Articles.

 

Reference cases: The following are some international rulings the Supreme Court took into consideration:

 

International Laws: 

  • Universal Declaration of Human Rights 1948: The fundamental equality of all members of the human family is the foundation of democracy, liberty, and harmony in the world,’ states the Universal Declaration. It asserts that human rights are fundamental, meaning that they apply to all, regardless of who they are or where they live.

 

  • International Covenant on Civil and Political Rights 1966: The International Covenant on Civil and Political Rights (ICCPR) of the United Nations aims to ensure civil and political rights. The General Assembly of the United Nations endorsed it on December 19, 1966, and it came into effect on March 23, 1976.

 

  • International Covenant on Economic, Social, and Cultural Rights 1966: Human rights in the economic, social, and cultural spheres are protected by the International Covenant on Economic, Social, and Cultural Rights. On December 16, 1966, the United Nations General Assembly approved it. On June 18, 1992, Switzerland ratified the Convention.

 

  • Yogyakarta Principles: The Yogyakarta Principles are a series of guidelines for how international human rights legislation can be applicable to subjects of gender and sexuality. The Guidelines provide universal international legal norms that all countries shall adhere to. They see a world in which all individuals born independent and equal in dignity and rights are able to exercise their valuable birthright.

 

  • The United Nations Convention against Torture (CAT): The United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) mandates signatory nations to support actions to eradicate torture within their borders and to make any acts of torture illegal.

 

Judgement: 

The Court constituted of two judges observed that the transgender community broadly defined by the Court as Hijras, Eunuchs, Kothis, Aravanis, and others has experienced persecution and detriment in India since the eighteenth century. It recognized transgender people’s inequality in fields such as health care, housing, and schooling, which also contributes to social isolation. Gender identity is an intrinsic part of one’s personality and one of the most fundamental facets of self-determination, integrity, and rights, according to the Court. As a result, no person should be required to perform surgical treatments such as sex reassignment surgery, sterilization, or hormone treatment in order for their gender identification to be legally recognized. Consequently, the court ruled that the federal and state governments must take a number of measures to ensure that the basic rights to life, equality before the law, and due process are upheld. The State shall not deny to ‘any person’ equality before the law or equal protection of the laws within the jurisdiction of India,” according to Article 14. “Transgender individuals who are neither male nor female fall within the term ‘person’ and, therefore, entitled to legal security of laws in all fields of State operation,” the Court concluded. It also maintained that the prohibitions on prejudice against any resident, even on the basis of sex, in Articles 15 and 16 extend equally to transsexual people. The term “sex” in the papers “is not only limited to biological sex of male or female, but meant to cover people who believe themselves to be neither male nor female,” as per the Court. The Supreme Court ruled that the right to freedom of speech guaranteed by Article 19(1) (a) of the Constitution contains one’s right to express his self-identified gender. The freedom to decide one’s sexual identity is fundamental to the right to live a dignified life, according to the Court, and therefore comes under the context of Article 21, i.e. right to life. 

Furthermore, the court clarified that Hijra are not men by way of genetics, and they are not women mentally, despite having no female reproductive organ and no menstruation. Hijra are neither men nor women, and appear to be an institutional “third gender” since they are unable to reproduce as either men or women. Individuals who aspire to have Sex Re Assignment Surgery (SRS) or who have had SRS to suit their biological sex with their gender orientation in order to become male or female are often classified as transgender persons and are regarded as transsexuals. 

As a result, the Supreme Court ruled that:

  • The right of transgender people to declare their self-identified gender is also protected, and the federal and state governments are required to recognize their sexual identity as male, female, or third gender.
  • Besides the binary gender, transgender people should be classified as “Third gender” in order to protect their rights under Part III of the Indian Constitution and laws enacted by the Parliament and State Legislatures.
  • The court ordered the federal government and the state government to recognize the transgender persons as economically and educationally disadvantaged individuals, and to grant them all forms of reservation of enrollment to educational institutions and for public appointments.
  • Necessary actions to improve a variety of social care systems should be taken by the Centre and State. 
  • The Centre and state governments should take appropriate steps to provide TGs with medical care in hospitals, as well as separate public toilets and other amenities.

 

Conclusion: The case of Nalsa v Union of India was certainly a significant landmark decision that gave a glimmer of hope to the futures of transgender people, as it was a massive legal step against eliminating the oppression endured by a group of people who had been discriminated against for years. For the first time in India, the ‘third gender’ identity was recognized, and the LGBTQ community’s constitutional rights were defended. This landmark decision is one such example of how history owes transgender people an apology. It cannot be anticipated that this verdict would transform the way everybody within society views the transgender people, but it is a step toward undoing the wrongs that have been committed against transgender people for decades. There is also a long lot of room for improvement in terms of granting transgender people equal treatment in our socio-religious and socio-political activities; for the time being, despite this judgement, they are either ordinary citizens or misfits who live on the periphery.

Mohammed Ahemd Khan v . Shah Bano Begum

Date : 23rd April,1985
Bench : Chandrachud, Y.V.(CJ), Desai, D.A., Reddy, O. Chinnappa (J), VenkataramiahVenkatarmiah, E.S. (J), Mishra Rangnath

 

Facts :
Mohammed Mohamed Ahmedemad Khan, anand advocate, was married to Shah Bano Begum in 1923 and five children were born out of thisout this marriage. In 1975, he drove her out of histhe house. In April 1978, the wife approached a Magistrate’s court under S. 125 of the Criminal Procedure Code, asking for maintenance of Rs. 500 per month, stating that her husband’s monthly income was over Rs. 5,000. In November,1978, the husband divorced his wife by pronouncing a triple talaq. He argued before the Magistrate that he was under nowas no obligation to provide any maintenance for her ( as she was no longer his wife) and that he had already paid maintenance to her under the Muhammadan law) at the rate of Rs. 200 per month for about two years. He also deposited a sum Rs. 3,000 in the court by way of dower during the iddat period. In August,1979, the Magistrate ordered him to pay Rs.25 to his divorced wife every month – an amount later described by the Supreme court as “a princely sum of Rs.25 per month”. In appeal, the High Court contending that this amount was “excessive”.

Issued raised :
The two main questions before a 5-Member Bench of the Supreme Court were:
Whether S. 125 of the Criminal Procedure Code, which provides for maintenance of wives, including a divorced wife who has not re-married, applies to Muslims?.
Whether, under the Criminal Procedure Code, if a divorced woman has received the whole amount payable to her “on divorce” under customary or personal law, the maintenance order may be cancelled by the court?. In other words, can it be said that mahr (or dower) payable under Muhammadan law is an amount payable “on divorce”?

Observation :

InAs regards to theregards the first question, the Supreme Court held that under S. 125 of the Criminal Procedure Code, a wife who is not maintained by the husband is entitled to approach the court for maintenance. For this purpose, the word “wife” includes a divorced spouse,which is is not at all relevant in such a casesuch case, as the Code applies to all. In other words of the court, “Whether the spouses are Hindus or Muslims, Christians or Parsis, pagans or heathens, is wholly irrelevant” for S. 125 of the Code. As this section is secular in character, it applies to Muslims also.
In answer to the secondto second question, the court held that it cannot be said that, under MuhammadanMuhmmadan law, dower is an amount payable “on divorce”. Very often, although the dower is fixed at the time of marriage, a part of it (called deferred dower) is payable on dissolution of marriage by death or divorce. However, this does not mean that it is an amount payable “on divorce”. Divorce may be a convenient or identifiable time for payment of deferred dower, but such payment is not occasioned by divorce. It would be absurd to say that this amount is payable in consideration of divorce. On the contrary, it is an obligation imposed by Muslim law omnn
on the husband as a mark of respect for the wife. The Supreme court held that the wife did have such a right and observed that even the quranKoran imposes an obligation on a Muslim husband to make a provision for his divorced wife Lamenting Act that Art. 44 of the constitution had remained a dead letter, the then Chief Justice of India, Justice ChandrachudChandradhud, observed as under: “ A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies.

Judgement :
The response to this judgement was prompt, strong and reactionary. Protestors took to the streets, disturbances erupted all over the country and Muslim leaders vowed that they were prepared for any sacrifice to protect their personal law. The government, led by Prime Minister Rajiv Gandhi, reacted immediately and Parliament passed the Muslim Women’s (Protection of Rights in Divorce) Act, 1986, which effectively nullified the decision of the Supreme court in Shah Bano’s case. The judgement of the court was delivered by Chandrachud, (C.J). women are one such segment. “Na stree swatantram arhatiswatantramarhati” said Manu, the law giver: The womenwomen does not deserve independence. And, it is alleged that the ‘fatal point in Islam is the ‘degradation of woman’(1). To the Prophet, is ascribed the statement, hopefully wrongly, that ‘Woman was made from a crooked rib, and if you try to bend it straight, it will break; therefore treat your wives kindly. The appeal arising out of an appellation filed by a divorced Muslim woman for maintenance under section 125 of the Code of Criminal Procedure, raises a straightforward issue which is of common interest not only to Muslim women, not only to or Muslim women generally but, to all those who are , aspiring to create an equal society of men and women and, lure themselves into the belief that the mankind has achieved a remarkable degree of progress in that direction. ‘Wife means a wife as defined, irrespective of the religion professed by her or by her husband. Therefore, a divorced Muslim women, so long as she has not remarried, is a ‘wife’ for the purpose of section 125. The statutory right available to her under that section is unaffected by the provision of the personal law applicable to her. It is too well known that “ A Mouhammadan may have as many as four wives at the same time but not more. If he marries a fifth wife when he has already four, the marriage is not void, but merely irregular. The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage, leave alone 3 or 4 other marriages. It shows, unmistakably, that section 125 overrides the personal law, if there is anyis any there conflict between the two. Belief Islam does not mean mere confession of the existence of something. It really means the translation of the faith into action. This case was considered to be one of the landmark case.

Indira Sawhney v. Union of India

Indira Sawhney  v.  Union of India

 

Date               : 16th November, 1992

 

Bench            :  M Kania, M Venkatachaliah, S R Pandian, T Ahmadi, K Singh, P Sawant, R Sahai, B J Reddy

 

 

Facts :

The Mandal Commission was established in India in 1979 by the Janta Party government under Prime Minister Morarji Desai, with a mandated to “identify the socially or educationally backward classes”. It was headed by Indian Parliamentarian, B . P . Mandal to consider the question of seat reservations and quotes for “backward classes”. It used eleven social, economic, and educational indicators to determine backwardness. In 1980, the Commission gave its Report which gathered dust for ten long years. Ten years later, V. P. Singh, the then Prime Minister of India, announced in Parliament that the government would implement the Mandal recommendations. The announcement of the Prime Minister was followed by a strong and violent reaction of the student community in all part of India, and particularly in the north. The anti-Mandal protest manifested itself not only in rallies, meetings and discussions in the media, but also in the form of attacks on public property, burning of buses and other forms of violent demonstrations. Several writ petitions were also filed in the name of Indira Swahney, a practising advocate of the Supreme Court. All the other petitions were consolidated by the Supreme Court which decided to pass orders in this case – where the points agitated were the same as in the other petitions.

Issues Raised :

The questions raised before the 9-member Bench of the apex court – and the answers given by the majority of the 9-member Bench of the court – can be summarised as follows:

  1. 1 : Whether Art. 16(4) of the Constitution forms and exception to Art. 16(1).
[ Art. 16(1) guarantees equality of opportunity to all citizens in matter relating to employment or appointment to any office under the state. However, Art 16(4) allows the state to make any provision for reservation of appointments or posts in favour of any backward class of citizens, which in its opinion, is not adequately represented in the services under the state. ]

Ans.  1   : The court held that Art. 16(4) is not an exception to Art. 16(1). It is only and instance and an illustration of th4e classification inherent in Art 16(1).

 

  1. 2 : Would the making of “any provision” by the state under S. 16(4) for reservation have to be only by an act of an appropriate legislature – or could this also be done by an executive order?

Ans.  2   : It is not necessary that such a provision should be necessarily be made by a legislature. It can even be done by the executive.

 

  1. 3 : What interpretation is to be put on the phrase “Backward classes” in Art. 16(4) and whether caste by itself could identify a class for the purpose of the Art. 16(4).

Ans.  3  : The farmers of the Constitution must have had something in their minds when the word “class” and not the word  “caste”. The expression “backward class of citizens” is not restricted t classes who are situated similarly to scheduled castes and scheduled tribes. A “caste” per se cannot fall within the term “backward class of citizens” unless it satisfies the primary test of social backwardness and educational and economic backwardness which are the established and accepted criteria to identify a “backward class”. Also the “creamy layer” in the backward class should not be entitled to benefits of any reservation and such persons should be treated on  par with the “forward” classes. If the creamy layer amongst the backward classes is not excluded, then the benefits of reservation will not reach the really backward among the backward classes.

 

  1. 4 : If economic criteria by itself cannot constitute a “backward class” whether reservation of posts based exclusively on economic considerations should be valid.

Ans.  4    : A backward class of citizens cannot be identified only and exclusively with reference to economic criteria. Such a class should be socially and educationally backward. Mere economic backwardness cannot be the sole criterion for this purpose.

  1. 5 : Whether the extent of reservations  can exceed 50% of the appointments in a cadre.

Ans. 5     : Ordinarily, the reservation for all classes cannot exceed 50%/. This rule of 50% is to be applied each year. It cannot be related to the total strength of the class category, service or cadre, as the case may be.

 

  1. 6 : Whether reservation for backward classes, as guaranteed by the constitution , relate only to the initial appointment – or they also apply to promotion as well.

Ans. 6     : Reservation in favour of backward class can only be made in initial stage of recruitment. Such persons must compete with others and earn a promotion like all others. Supreme Court overruled its earlier decision in Rangachari’s case where the court had held that the policy of reservation would extend to promotions also. The Constitution was thereafter amended to provide for reservation in promotions too.

 

  1. 7 : Whether the extent of judicial review would be limited or restricted to the identification of the backward classes and the percentage of reservations made for such classes.

Ans. 7      : The action of the government in making reservations for backward classes is a matter of government policy. The judicial scrunity of such action would be the same as in other matters within the subjective satisfaction of the authority.

 

  1. 8 : Is a reservation policy by definition ant-ment? Can merit be sacrificed in the interests of social justice ?

 

Ans. 8       :  If reservation are made, some sacrifices  of merit is likely to be made; but this is the price which the country has to pay for achieving social justice. However, the Constitution clearly mandates  that when reservations are made for scheduled castes and scheduled tribes, efficiency of the administration should also be maintained, as directed by Art. 335. The condition would equally apply to reservations for backward classes.

 

Conclusion  :

The Central Government and all the State Governments should, within a period of four months, constitute a permanent body for entertaining, examining and making recommendations on requests received by it for inclusion in the lists of backward classes of citizens. The advice tendered by such a body should be ordinarily binding on the Government. With a period of four months, the Government should specify the bases, after applying the relevant socio – economic criteria, to exclude socially advanced persons and sections – the “creamy layer” – from the ambit of “other backward classes”.

Indian Medical Association v V. P. Shanta and Ors

Date : 13th November,1995
Bench : Agarwal , S.C. (J)
Kuldip Singh (J)
Hansaria B . L . (J)

Facts :
The special leave petition and the Writ petition was filed in this case raise a common question as to whether and if so, in what circumstanceswhat , circumstances, a medical practitioner can be regarded as rendering ‘service’ under Section 2(1)(oo) of the Consumer Protection Act,1986. The interesting question that arose in this case was whether the medical profession (doctors, hospitals, nursing homes etc.) fall within the purview of the Consumer Protection Act. To file a claim under the Act, a person has to be a ‘consumer’, that is, a person who buys goods or hires or avails the of services.
Issues raised :
The Supreme Court bench consisting of Justices Kuldip Singh, S. C. Agarwal and B . L. Hansaria , were under:
Whether a medical practitioner can be regarded as rendering ‘service’ as defined under Section 2 (1) (o) of the Consumer Protection Act, 1986?
Whether the services rendered at a hospital or nursing home can be regarded as ‘ service’ as defined in the Act?
The term “ service” is defined by S. 2(1)(o) of the act o mean service of any description which is made available to the potential users. The term includes, but is not limited to, the insurance, transport, processing, supply construction , entertainment, amusement or purveying of news or any other information. However, the term does not include the rendering of any services free of charge, or the rendering of any service under a contract of personal service. Simply stated, the question isif of vital importance , because if the answer is in the affirmative , the patient would be regarded as a ‘ consumer’ and would be entitled to file a claim against the doctor in a consumer court.
Arguments :
The argument advanced by the medical profession before the Supreme Court can be summed up as under:
Doctors render professional services under a ‘ contract of services’, whose which term is expressly excluded fromform the definition of ‘service’ as given above.
Doctors are already subject to possible disciplinary action of the Indian Medical Council and State Medical Councils.
Negligent doctors are also liable under the law of torts and under the Indian Penal Code.
Consumer court judgesjudge are not trained in medical science, and hence, may not be able to do full justice in medical cases.
If the sword of the consumer litigation hangs over a doctor, he would not be able to discharge his medical obligations efficiently.
Consumer cases against doctors are usually given a lot of publicity in the media, thus putting an unnecessary strain on the doctors.
Often, false and frivolous complaints are filed against doctors and hospitals – sometimes, promoted and/or encouraged by a rival doctor or hospital.
The Supreme Court rejected the above contention and held that doctors, hospitals and nursing homes do render a ‘service’ as defined in the Act and they would therefore be liable under the Consumer Protection Act – unless such service is rendered free of cost, and as that is expressly excluded by the Act. Advocates representing the medical profession strongly argued that a physician or a surgeon is always chosen because of his personal skill, qualification , reputation and the faith which a patient has in him. Since the contract of personal service is not defined in the Act, the patient cannot be said to have availed of any service. Therefore, he is He is therefore not a ‘consumer’ and  cannot file a claim under the Act. While rejecting this Supreme court drew a fine line of distinction between a contract of personal service and a contract for personal service. The court admitted that the relationship between a doctor and his patient is a contract in the eyes of law.
Observation :
The court observed that this was a contractwas contract for personal services. What was excluded by the definition is a contract of personal services, as for instance, a master-servant relationship between two persons. The proposition laid down by the court in this case may be summed up as under:
1. Service rendered to a patient by a doctor by the way of consultation, diagnosis and treatment, both medicine and surgical, would fall within the ambit of ‘service’ as defined in Section 2(1) (o) of the Act- except where the doctor renders service free of charge.
2 . The fact that medical practitioners are subject to the disciplinary control of the Medical council of India and/or State Medical Councils would not exclude the services rendered by them form the ambit of the Act.
3 . In absence of a relationship of master and servant between the patient and a doctor the services rendered by him to a patient cannot be regarded as service rendered under contract of personal service. Such service is a service rendered under a ‘contract for personal service’ which is not excluded under above definition.
4 . The expression ‘contract of personal service’ as used in the Act would cover contracts for employment of servants and include employment of medical officers for rendering medical service to the employer. The service rendered by a medicalby medical officer to the employer fallsfall under scope of contract of employment and would be outside the purview of the act.
5 . Service rendered free of charge by a doctor attached to a hospital or a nursing home where such services are rendered free of charge to everybody, would not be “ service” as defined. The payment of a token amount for registration purposespurpose only at the hospital or nursing home  would not affect after the position, and the patients in such a hospital or nursing home and cannot be called ‘consumers’.
6. Services rendered by hospitalshospital and nursing homeshome where charges are required to be paid by all persons, would fall within the purview of the expression ‘service’ as defined in act, as such hospitals and nursing homes are covered by the Act.
7. If patients are charged fees in hospitals or nursing homes which also havehad free wards for the poorfor poor, all the patients whether paying or non-paying are consumers and can file claims under the act.
8. Services rendered by a medical practitioner or hospital or nursing home cannot be services rendered free of charge just because a personbecause person availing the service has taken insurance policy and is rendered by the insurance company.
9 . Similarly, when the employer bears the expenses of medical treatment of his employee, the service rendered to such an employee cannot be said to be free of charge, and would therefore constitute ‘service’ under the Act.
Judgement :
The judgment included the medicalincluded medical profession has been brought under the Section 2(1) (o) of CPA, 1986. The judgement concedes the summary procedure prescribed by the CPA would suit only glaring cases of negligence and in complaintscomplaint involving complicated issues requiring recording of the evidence of experts, the complaint can be approached to the civil courts. As a result of this judgement , all private and government hospitals and the doctors employed by them and the independent medical/dental practitioners except primary health centres, birth control measures, anti malaria drive and other such welfare activities can be sued under the CPA.

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Vishaka & Ors. V/S State of Rajasthan

Citation:  Vishaka & Ors. V/S State of Rajasthan (AIR 997 SC 3011)

Bench of Judges: CJI, Sujata V. Manohar, B. N. Kirpal

Facts of the case:

Bhanwari Devi was a social worker in a program started by the state legislature of Rajasthan, expecting to deter child marriage, a deep-rooted evil. While stopping a child marriage in one of Ramakant Gujjar’s family, Bhanwari Devi made an honest effort to bar that marriage.

Notwithstanding the effort, the marriage still went through, even though there was a broad -demonstration. In September 1992, to look for revenge, Ramakant Gujjar, alongside his gang of 5 men, raped Bhanwari Devi in front of her significant other. The department of police, firstly, attempted to discourage them from filing the case on one excuse or another. However, to her assurance, she stopped a protest against the charge.

They were still exposed to unforgiving pitilessness by the female police officials even to the degree that for acquiring proof, they asked for her lehenga, and she was left with her significant other’s blood-stained dhoti. Adding to their agony, their demand to spend the night in the police station was also refused.

The trial court exonerated the accused; however, she didn’t lose hope, and seeing her persistence, all other female social workers came forth to her help. Bhanwari Devi’s case was filed by an NGO named Vishakha. The Supreme Court was called upon to outline rules for the prevention of sexual harassment at the workplace.

The honorable court came up with rules as “Vishakha Guidelines”, which framed the premise of “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013”. It has been laid down in the aforementioned judgment that it is the obligation of the management or other responsible individuals in workplaces of different organizations to prevent further occurrences of such an event and to equip the workers with the adequate procedure for punishing such immoral acts of sexual harassment. For this Act, “sexual harassment” signifies unpleasant and unwelcome sexual advances, and demands for sexual favors, as direct or indirect as;

  • physical contact and advances;
  • an interest or demand for sexual courtesies;
  • explicitly sexual comments;
  • making someone watch pornography;
  • some other unwanted physical, verbal or non-verbal conduct of sexual nature

Judgment:

The court saw that the fundamental rights under Article 14, 19(1)(g) and 21 of the Constitution of India, each field of employment ought to maintain a safe workplace for their work staff. Sexual harassment at the workplace curbs the right to lead a life of decency. The essential prerequisite of the right to equality is that there ought to be safe working conditions at the workplace.

 

The Supreme Court upheld that women have the fundamental right to work in a sexual harassment-free workspace. It likewise set forth different significant rules for the working staff to follow to prevent sexual harassment in a workspace. The court additionally proposed to have appropriate techniques for exercising the situations where there is a chance of sexual harassment at the workplace. The principle target of the Supreme Court was to guarantee gender equality among individuals and to guarantee that there ought to be no inequality between men and women at the workplace.

After this case, the Supreme Court made the term “sexual harassment” unambiguous, stating, “any physical touch or conduct, showing of pornography, any unpleasant taunt or misbehavior, or any sexual desire towards women, sexual favor will come under the ambit of sexual harassment.”

Critical Analysis:

In the case of Vishakha and Others v. the State of Rajasthan, the Supreme Court clearly underlined the meaning of “sexual harassment”, as something which passes any undesirable or uninvited physical touch or showing of pornography or any determinable sexual remarks or messages will go under its ambit.

In my opinion, doing any such act legitimately hampers the right to life for women and it likewise influences their right to live with decency. It likewise affects the psychological and physical wellbeing of women. The Supreme Court created guidelines that, the individual accountable for that specific corporation, association, or office whether be it private or public, shall be responsible for the prevention of any events that could be labeled as sexual harassment.

Damages shall be levied from the accused of sexually harassing a coworker. It had become an extremely critical point to follow up on for the prevention of such behavior. If there should arise an occurrence of such an event in a privately owned corporation, stringent rules regarding the penalties will be included.

On the off chance, a person who isn’t an employee conducts the sexual harassment, the individual accountable for that corporation must take strict action against such conduct.

K.S.Puttaswamy(Retd) vs Union Of India

CASE: Justice K.S.Puttaswamy(Retd) vs Union Of India (2017) 10 SCC 1

JUDGES: Justice J.S. Khehar, Justice S. K. Kaul, Justice D Y. Chandrachaud, Justice R. F. Nariman, Justice S.A. Bobde, Justice S.A. Nazeer, Justice R.K. Agrawal, Justice J. Chelameswar and Justice A. M. Sapre.

BACKGROUND: The Aadhaar Scheme was launched in the year 2010 by the then Prime Minister Dr. Manmohan Singh. The Aadhaar is a 12-digit unique identification number that can be obtained by residents of India, based on their biometric and demographic data. The data is collected by the Unique Identification Authority of India (UIDAI). In 2012, when three oil companies initiated a pilot project in Mysore to have LPG refills linked to the ID for which Aadhar was mandatory. A petition was filed challenging constitutionality of Aadhaar.

FACTS:

The Government of India, commenced a project called ‘Unique Identification for BPL Families’. For this purpose, a committee was set up which suggested forming of a Unique Identification database. Retired Justice K S Puttaswamy and Mr. Parvesh Sharma filed a PIL Writ Petition (Civil) No. 494 of 2012 in SC challenging the constitutionality of Aadhaar because it is violating the right to privacy. This had been established on reference from the 9-judge Bench to determine whether or not the right to privacy was guaranteed as a fundamental right under the constitution of India following past decisions from Supreme Court benches.

 

MAIN ISSUES RAISED:

  1. Whether the right to privacy is an intrinsic part of the right to life and personal liberty under Article 21 and a part of the freedoms guaranteed by Part III of the Constitution?
  2. Whether or not the decision made by the Court that there are no such fundamental rights in M.P. Sharma & Ors. vs. Satish Chandra, DM, Delhi & Ors. and also, in Kharak Singh vs. The State of U.P, is that the correct in law?

 

JUDGEMENT ANALYSIS:

The nine-judge bench of the Supreme Court unanimously recognized that the Constitution guaranteed the right to privacy as an intrinsic part of the right to life and personal liberty under Article 21.

The Court revoked the M.P. Sharma & Ors. vs. Satish Chandra, DM, Delhi & Ors. and Kharak Singh vs. The State of U.P, as these did not expressly recognize the right to privacy.

In the Puttuswamy case, the right to privacy was reinforced by the concurring opinions of the judges in this case which recognized that this right includes autonomy over personal decisions, bodily integrity as well as the protection of personal information.

The concurring judgments included specific implications of this right, some of which are illustrated below:

Chandrachud (on behalf of himself, C.J. Kehar, J. Agrawal and J. Nazeer) stated “this opinion stated that privacy was not surrendered entirely when an individual is in the public sphere. Further, it found that the right to privacy included the negative right against State interference, as in the case of criminalization of homosexuality, as well as the positive right to be protected by the State. On this basis, the Judges held that there was a need to introduce a data protection regime in India.”

Chelameswar concurring opinion was “The right to privacy implied a right to refuse medical treatment, a right against forced feeding, the right to consume beef and the right to display symbols of religion in one’s personal appearance etc.”

Bobde observed “consent was essential for distribution of inherently personal data such as health records.”

Sapre said, “in addition to its existence as an independent right, the right to privacy included an individual’s rights to freedom of expression and movement and was essential to satisfy the constitutional aims of liberty and fraternity which ensured the dignity of the individual.”

Justice Nariman in his concurring opinion classified the facets of privacy into non-interference with the individual body, protection of personal information and autonomy over personal choices. Justice Kaul debated over the right to privacy with respect to protection of informational privacy and the right to preserve personal reputation. He said that the law must provide for data protection and regulate national security exceptions that allow for interception of data by the State.

However, the court even recognised that that the right to privacy was not an absolute right but has restriction to it which is provided by law, corelate with the legitimate aim of the State and was proportionate to the objective it sought to achieve.

 

Conclusion:

The Aadhaar Scheme was launched with the main agenda of giving identity and empowerment to the marginalized section of the society. It provides a unique identification number to the citizens of India. The Aadhaar number is unique and therefore, it can’t be duplicated. The unique identification ensures that the benefits and subsidies of the government are availed by the section of society for which they are meant.

The main issue of “Right to Privacy” was raised in the case. The question of dignity of citizens, informational self-determination and consent formed the basis for the privacy rights claims. The right to privacy formed an important part of the case as a result of which it is also known as the right to privacy judgment. As the Constitutional bench of the Hon’ble Supreme Court on 26th September 2018, gave the judgment in favor of respondents making right to privacy as a fundamental right of the citizen. The validity of Aadhaar was upheld by the Court after striking down various clauses and Sections of the Act which were contrary to the Constitution and violated the rights of the citizens. Justice A K Sikri wrote in his judgment declared the Aadhaar Act to be valid after striking down Section 33(2) and Section 57 of the Act. The petitioner raised various issues like the Right to Privacy of the citizens and the possibility of state surveillance as well as the possibility of breach of information which was collected by the Government for Aadhaar cards of the citizens. The questions of the petitioners have mitigated the claim of UIDAI that their system is one of the best in the world and secured enough to keep the information of the citizens safe. The Court held the Aadhaar Act to be Constitutionally valid as the Act was under reasonable restrictions of the Constitution. The majority of the honorable Bench also stated that the right of choice of the citizens to avail the Aadhaar card will not be protected by upholding the Aadhaar Act. The citizens will not be left with a choice as Aadhaar will be mandatory for availing the subsidies and benefits of the Government and if a citizen is excluded from availing the subsidies and benefits of the Government due to lack of Aadhaar or authentication problem it can result in the violation of the dignity of the citizen. The Bench the court even mentioned that linking of Aadhaar to PAN card is not important as there isn’t any constitutional rationale behind it. Upholding of Aadhaar can possibly result in the violation of the Right to Privacy even after striking down Section 33(2) and Section 57 of the Act. The court clearly stated to remove all the possibility for private entities to use the authentication mechanism or for asking Aadhaar details by the citizens in order to protect the Right to Privacy of the citizens. The step taken by the Court was to protect the Right to Privacy of the citizens and it clearly showed that the Right to Privacy is indeed a Fundamental Right.

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Golaknath, I.C v State of Punjab

Facts

• The family of Henry and William Golak Nath held over 500 acres of farmland in Jalandhar, Punjab.
• In the phase of the 1953 Punjab Security and Land Tenures Act, the state government held that the brothers could keep only thirty acres each, a few acres would go to tenants and the rest was declared ‘surplus’.
• This was challenged by the Golak Nath family in the courts and the case was referred to the Supreme Court in 1965.
• The family filed a petition under Article 32 challenging the 1953 Punjab Act on the grounds that it denied them their constitutional rights to acquire and hold property and practice any profession (Articles 19(1)(f) and 19(1)(g)) and to equality before law and equal protection of the law (Article 14). They also sought to have the Seventeenth Amendment – which had placed the Punjab Act in the Ninth Schedule – declared ultra vires.
Issues
• Whether Amendment is a “law” under the meaning of Article 13(3)( a), and
• whether Fundamental Rights can be amended or not.

Petitioner’s contention

• The petitioner argued that the constitution of India was drafted by the constituent assembly and it is of permanent nature. No one can change or can try to bring change in the constitution of India.
• They argued that the word “amendment” in question only implies a change in accordance with the basic structure but not altogether a new idea.
• Further, the petitioner contended that the fundamental rights enshrined under part III of the constitution cannot be taken away by the parliament. They are essential and integral part of the constitution without which constitution is like a body without a soul.
• The petitioner also argued that Article 368 of our constitution only defines the procedure for amending the constitution. It does not give the power to the parliament to amend the constitution.
• The last thing on which the petitioner argued before the court was that Article 13(3)(a) in its definition of “law” covers all types of law i.e. statutory and constitutional etc. And by virtue of Article 13(2), which says that the state cannot make any law which takes away the rights mentioned under Part 3, any constitutional amendment which takes away the Fundamental rights will be unconstitutional and invalid.

Respondent’s contention

• The respondent contended before the court that constitutional amendment is a result of the exercise of its sovereign power. This exercise of sovereign power is different from the legislative power which parliament exercises to make the laws.
• Our constitution makers never wanted our constitution to be rigid in its nature. They always wanted our constitution to be flexible in its nature.
• The object of the amendment is to change the laws of the country as it deems fit for the society. They argued that if there won’t be any provision for amendment then, it would make constitution a rigid and non-flexible one.
• They further argued that there is no such thing of basic structure and non-basic structure.
• All the provisions are equal and of equal importance. There is no hierarchy in the constitutional provisions.

Judgement

• In this case, at that time the supreme court had the largest bench ever. The ratio of the judgment was 6:5, majority was favouring the petitioners.
• Whereas Justices K.N. Wanchoo, Vishistha Bhargava and G.K Mitter wrote single minority opinion and justices R.S. Bachawat & V. Ramaswami wrote separate minority opinions.
• The majority opinion of Golakh Nath shows scepticism in their minds about the then course of parliament. Since 1950 the parliament has used article 368 and have passed a number of legislations that had in one or other way violated the fundamental rights under part III of the constitution.
• The majority had doubts that if Sajjan Singh remained the law of the land, a time can come when all fundamental rights adopted by our constituent assembly will be changed through amendments.
• Keeping in view the problem of fundamental rights and fearing that there can be a transfer of Democratic India into totalitarian India. Therefore, the majority overruled Sajjan Singh & Shankari Prasad.
• The majority said that the parliament has no right to amend the fundamental rights. These are fundamental rights that are kept beyond the reach of parliamentary legislation.
• Therefore, to save the democracy from an autocratic actions of the parliament the majority held that parliament cannot amend the fundamental rights enshrined under Part III of the Constitution of India.

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Shreya Singhal Vs Union Of India

Dated- 24th March, 2015

Supreme Court of India.

Citation of the case- Writ Petition (2013) 12 S.C.C. 73

Parties of the case- Shreya Singhal is the Petitioner. Supreme Court is the Respondent.

Statement of the case- The Petitioner argued that Section 66A was unconstitutional because its planned protection against inconvenience, danger, insult, injury, criminal intimidation, is outside the purview of Article 19(2). They also argued that the law was unconstitutionally unclear as it fails to specifically define its prohibitions. She further contended that the law has a “chilling effect” on the right to freedom of expression.

History- In November, 2012, a 21-year-old girl, Shaheen Dhada, from Palghar in Maharashtra, updated a Facebook status. The post stated that Mumbai had shut down in fear and not out of respect for the funeral procession of Bal Thackeray, Shiv Sena founder. Rini Srinivasan liked the status posted by Shaheen. Both the girls were arrested within a few hours. Shaheen was charged under the Indian Penal Code Section 295A and the notorious Section 66A of the Information Technology Act, 2000. The arrested girls were released later and it was decided that the criminal cases against them would be dropped. It was presumed that the police abused their authority by invoking Section 66A at the same time as it constitutes a violation of the fundamental right of speech and expression.

Legal issue- Whether Section 66A of ITA violated the right to freedom of expression guaranteed under Article 19(1)(a) of the Constitution of India.

Arguments-

Petitioners Arguments-

  1. The Petitioner in front of the Hon’ble Court stated that Section 66A excludes the freedom of speech and expression granted under Article 19(1)(a) and is not safeguarded by the reasonable limit referred to in Article 19(2).
  1. It is outside the reach of Article 19(2)(c) to cause annoyance, discomfort, etc.
  2. Section 66A pursues to create an offense but has susceptibility and vice of vagueness as the terminology used is not clearly defined. The terminology used is subjective and remains open to law enforcement agencies ‘ desire and willingness to interpret it. There’s no limitation.
  3. Article 14 has been violated because there is no intelligible distinction as to why this provision was addressed only by one means of communication.

Respondent’s Arguments

  1. The learned counsel for the Respondent stated that the Legislature is in the toughest position to meet people’s needs, and the Judiciary will only weigh in when a statute is explicitly in violation of Part III and the legislation in dispute is believed to be legal.
  2. In this way, the Court would construe a law to make it practical, and in doing so, it would be able to read or read the laws.
  3. Only the probability of violence cannot justify making a rule null.
  4. Slack Language is used to defend people’s rights from those who use this medium to threaten them.
  5. Indistinctness is not a reason to declare unconstitutional a law if it is actually eligible and unarbitrary.

Judge- It is a two-bench judgement. The judges are J. Chelameswar, Rohinton Fali Nariman.

Judgement- The Court mentioned three fundamental notions in understanding the freedom of expression: discussion, advocacy, and incitement.  The Court stated that Section 66A is capable of limiting all forms of internet communications.

The Court further held that the law fails to create a clear adjacent relation to the protection of public order. According to the Court, the commission of an offense under Section 66A is complete by sending a message for the purpose of causing annoyance or insult. As a result, the law does not make distinction between mass dissemination to only one person without requiring the message to have a clear tendency of unsettling public order.

In terms of Section 66A, whether it was a valid attempt to protect individuals from defamatory statements through online communications, the Court stated that the main ingredient of defamation is “damage to reputation.” It was stated that the law does not concern this objective because it also condemns offensive statements that may annoy or be inconvenient to an individual without affecting his reputation. The Court apprehended that the government failed to show that the law intends to prevent communications that provoke the commission of an offense.

As to Petitioners’ challenge of vagueness, the Court found that Section 66A leaves many terms open-ended and undefined, therefore making the Section void for vagueness. The Court also addressed whether Section 66A is capable of imposing chilling effect on the right to freedom of expression. It is stated that because the provision fails to define terms, “a very large amount of protected and innocent speech” could be shortened.

The Court noted the intelligible difference between information transmitted through internet and other forms of speech, which permits the government to create separate offenses related to online communications. The Court rejected the Petitioners’ argument that Section 66A was in violation of Article 14 of the Constitution against discrimination.

The Court declined to address the Petitioners’ challenge of procedural unreasonableness since the law was already declared unconstitutional on functional grounds. It also found Section 118(d) of the Kerala Police Act to be unconstitutional as applied to Section 66A. 

Based on the foregoing, the Court invalidated Section 66A of ITA in its entirety as it violated the right to freedom of expression guaranteed under Article 19(1)(a) of the Constitution of India.

Conclusion- In simpler language, this landmark judgement pursued to barely define the circumstances in which freedom of speech and expression could lawfully be shortened under India’s Constitution. The Supreme Court recognised that the same level of constitutional analysis would be given to laws which seek to regulate speech online as would be applied to laws regulating more traditional media.

In its judgment, the Supreme Court demonstrates its firm obligation to the specific terms of Article 19(2) under which freedom of speech and expression can be legitimately restricted. In doing so, the Supreme Court highlights the clear differences between Article 19(2) of the Constitution and similar provisions in international human rights treaties. In its judgment the Supreme Court also sustained the constitutionality of section 69A of the Information Technology Act.

Mohd. Ahmed Khan v. Shah Bano Begum

The case started in 1985 in Indore, Madhya Pradesh, where Shah Bano, a 62-year-old dejected lady, and a mother of five, filed a suit for nonpayment of divorce settlement against her better half, Ahmed Khan, from whom she had been separated for forty-six years. Shah Bano requested a month to month support of 500 rupees, in light of Section 125 of the Criminal Procedure Code, 1973 (CrPC 1973). Referring to the Shariʿa, Ahmed Khan divorced her, reimbursed 3,000 rupees of her dowry (Mehr), and stopped all alimonies.

Facts of the case:

In 1932, Shah Bano, a Muslim lady, was hitched to Mohammed Ahmed Khan, a wealthy and notable lawyer in Indore, Madhya Pradesh, and had five kids from the marriage. Following 14 years, Khan accepting a more youthful lady as the second spouse and following quite a while of living with the two wives, he separated from Shah Bano, who was then matured 62 years. In April 1978, when Khan quit giving her the ₹200 every month he had guaranteed, asserting that she had no way to help herself and her kids, she documented a criminal suit at a neighborhood court in Indore, against her better half under segment 125 of the Code of Criminal Procedure, approaching him for an upkeep measure of ₹500 for herself and her kids. On November 1978 her better half gave an unalterable talaq (separate) to her which was his right under Islamic law and took up the protection that consequently Bano had stopped to be his significant other and in this manner, he was under no commitment to give support to her as aside from endorsed under the Islamic law which was altogether ₹5,400.

In August 1979, the neighborhood court guided Khan to pay a total of ₹25 every month to Bano by a method of upkeep. On 1 July 1980, on a revisional use of Bano, the High Court of Madhya Pradesh upgraded the measure of support to ₹179.20 every month. Khan at that point documented a request to advance under the watchful eye of the Supreme Court guaranteeing that Shah Bano isn’t his duty any longer since Mr Khan had a second marriage which is likewise allowed under Islamic Law.

 

Issues:

  • Whether Section 125 of the Criminal Procedure Code will apply to Muslims.
  • Whether the mere payment of Mehr by the husband on divorce is sufficiently adequate to free him of any obligation to pay upkeep to the wife from that point.

Examination of the Judgment:

Concerning Sections 125 and 127 (3) (b) of the Code, the spouse had documented a suit for support under section 125 of CrPC. The spouse built his defence on Section 127(3)(b) of CrPC. Stanzas (Aiyats) 241 and 242 of the Quran show that as per the Prophet, there is a commitment on Muslim spouses to accommodate they’re separated from wives. (See ‘The Holy Quran’ by Yusuf Ali, Page 96). The translation of Aiyats 240 to 242 in ‘The Meaning of the Quran’ (Vol. I, published by the Board of Islamic Publications, Delhi) reads thus:

Aiyats 240-241: “Those of you, who shall die and leave wives behind them, should make a will to the effect that they should be provided with a year’s maintenance and should not be turned out of their homes. But if they leave the homes of their own accord, you shall not be answerable for whatever they fairly choose for themselves; Allah is All-Powerful, All-wise. Likewise, divorced women should also be given something under the known fair standard. This is an obligation upon the God-fearing people.”

Aiyat 242: “Thus Allah makes clear His commandments for you: It is expected that you will use your common sense.”

The Supreme Court after studying the Scriptures believed: “These Aiyats leave no doubt that the Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife.” (Paragraph 25). The Supreme Court in the current case cited Bai Tahira v. Ali Hussain Fidaalli Chothia and Fuzlunbi v. K. Khader Vali as these decisions took the view that the separated from Muslim spouse is qualified for apply for upkeep under Section 125. The summit court additionally explained a mistake in the decision of Bai Tahira included that “Mehr, not being payable on separate, doesn’t fall inside the significance of that arrangement (Section 127(3) (b) of CrPC)” (para 33). The Court was of the view that the instalment of Mehr doesn’t clear the spouse’s obligation to pay support to his significant other under Section 127(3) (b) of the Code.

Whether there is any provision in the Muslim Personal Law under which a sum is payable to the wife ‘on divorce’. Referring to the views put forth by the learned scholars (Mulla, Tyabji and Paras Diwan), the Court concluded that “These statements in the textbook are inadequate to establish the proposition that the Muslim husband is not under an obligation to provide for the maintenance of his divorced wife, who is unable to maintain herself.” (Paragraph 16) “The sum settled by way of Mehr is generally expected to take care of the ordinary requirements of the wife, during the marriage and after.

But these provisions of the Muslim Personal Law do not countenance cases in which the wife is unable to maintain herself after the divorce. We consider it not only incorrect but unjust, to extend the scope of the statements extracted above to cases in which a divorced wife is unable to maintain herself. We believe that the application of those statements of law must be restricted to that class of cases, in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife” (para 16)

 

Dismissing the appeal, the Court held:

1) The instalment of Mehr by the spouse on divorce isn’t adequate to pardon him of the obligation to pay maintenance to the wife.

2) The risk of the spouse to pay maintenance to the wife stretches out past the iddat period if the wife doesn’t have adequate intends to look after herself.

3) Section 125 of the Code applies to all residents regardless of their religion

4) Section 125 supersedes the personal law if there is any contention between the two.

5) There is no contention between the arrangements of Section 125 and those of the Muslim Personal Law on the topic of the Muslim spouse’s commitment to give maintenance to a divorced wife who can’t look after herself.

Citation of the case: [1985 SCALE 767 = 1985 SCR 844 = 1985 SCC 556 = AIR 1985 SC 945]

Judges: the bench consisted of 5 judges, Chief Justice Chandrachud, Rangnath Misra, D. A. Desai,  O. Chinnappa Reddy, and E. S. Venkataramiah