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Supreme Court of India 2017-18:A Glorious Term

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These are tumultuous times for the Supreme Court (SC). Despite this, the past year has been dramatically successful for India’s Liberal Majority. Liberalism here must not be confused with ‘outright left wing progression’ or glorification of ‘western ideals’, but the plain and simple primacy of the Individual over the Collective.

The structure of the Indian Constitution was primarily built upon the ideals of its British counterpart. Some clauses of our constitution date back to the late 19th century, and this is clearly evident in the dogmatic, invasive and almost oppressive nature of some laws that govern this 21st century democracy.
In the past year, the Judiciary of India has ventured to instill the public’s dwindling faith in democratic ideals, and some unprecendted judgments have been witnessed. The most celebrated of these was that of August 24, 2017, where a 9 Judge Constitutional Bench unanimously ruled that the Right To Privacy is a Fundamental Right. 2017 witnessed government and private institutions mandating Aadhar Cards for basic functionality, which caused public distress over the invasive nature of UIDAI (Unique Identification Authority of India), its collection of biometric data and its transparency and security. This judgement came as sigh of relief to millions of Indians, albeit temporarily. In September 2018, the Supreme Court upheld the constitutional validity of the Aadhaar scheme and Act, with conditions. A 4:1 majority of a five Judge Constitutional bench concurred that Aadhar “serves a bigger public interest”. Even though the scope of influence of UIDAI has been drastically decreased, many civil rights activists, rallying behind the sole dissentee Justice D.Y. Chandrachud, deemed this ruling as an illusion of liberty; because Aadhar still remains mandatory for Pan Card and Ration Card registrations, that are essential for one to function in Indian Society.
Decreasing gender bias and discrimination were prioritized on the agenda of the SC under Dipak Misra’s Chief Justiceship, as was discernable in judgements pertaining to Triple Talaq, adultry and age of consent for marital sexual intercourse. The Supreme Court of India declared the practice of Triple Talaq as unconstitutional by a 3:2 majority in a 5 Judge Constitutional Bench.The court said the practice is  ‘unconstitutional’, ‘arbitrary’ and ‘not part of Islam. “Finally I feel free today. I have the order that will liberate many Muslim women,” said Shayara Bano, the petitioner of Shayara Bano Vs Union of India and Others. Amid outrage among a small fraction of India’s muslim community, that tried to justify this patriarchal practice under the veil of ‘religion’ , the court upheld its commitment to women’s rights with grace. Same was the case when a two Judge Bench of Supreme Court held that the age of consent for sexual intercourse was increased to 18 from 15 in cases of married couples. This judgement was an amendment to Section 375 of the Indian Penal Code. Last week, a five Judge Constitutional Bench ruled unanimously that Section 497, a 158-year-old law, that criminalised consensual sexual relations between a man and a married woman without the consent of her husband, was unconstitutional. “Adultery can be grounds for civil issues including dissolution of marriage but it cannot be a criminal offence … adultery might not be the cause of an unhappy marriage, it could be the result of an unhappy marriage,” said Chief Justice Misra while reading out the verdict.
Enshrining another insegregable facet of individual liberty, article 377 of the Indian Constituion, that criminalized homosexuality, was revoked. A 5 Judge Constitutional bench unanimously ruled that India’s LGBTQ community has the same sexual rights as heterosexual in India. ‘The right to live with dignity has been recognized. Sexual orientation is a natural phenomenon determined by biology and science. Any discrimination on this basis is unconstitutional,’ said Dipak Misra.
The court also attempted to safeguard individual identity from political propaganda and sensationalist manipulation. It held that seeking votes in the name of religion, caste or community amounted to corrupt practice and consequentially, candidature or office of an elected representative may stand void.
Our society still has a long way to go, constitutional enshrinement doesn’t guarantee proper implementation, and sexism and homophobia continue to influence a large part of Indian populations. Yet, amid all this, the Supreme Court has delivered judgements with profound implications for the Indian society.

 

Feature Image credits: Deccan Herald
Nikita Bhatia
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A Farewell Note to Justice Dipak Misra

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DU Beat bids farewell to CJI Dipak Misra on the last day of his tenure, the man under whom the Supreme Court delivered historic judgements. 

On 6 September 2018, section 377 of the Indian Penal Code that criminalised ‘unnatural sex’ between consenting homosexuals was revoked claiming it to be one ‘irrational, indefensible and manifestly arbitrary’ law. A decision that revolutionized our society and one that redefined the meaning of love for us, was just one among a flurry of Supreme Court judgements in the month of September. Another being the striking down  of bar on the entry of women between the ages of 10 and 50 into the Sabrimala Temple in Kerala marking the end of a hectic week that saw benches led by outgoing Chief Justice of India, Dipak Misra, delivering 20 verdicts over five days.

The Chief Justice of India (CJI) Dipak Misra’s tenure ends on 1 October; but it is an understatement to claim that it has been marked as being eternally inspiring for all successive decision makers of our country. It is not common to see change, it takes time. But the changes in the Indian law made by outgoing CJI Dipak Misra remind us that changes can become. Nothing can be more reassuring. From landmark judgements to scintillating statements, Justice Misra is a rare phenomenon.

Justice Dipak Misra, who was part of the bench that confirmed the death sentence of the four convicts in the December 16 gangrape case and passed the order for mandatory singing of the national anthem in cinema halls, has witnessed the diametric responses to law enforcement. It is this spectrum that enables more informed decisions, and in turn, allowing for a more inclusive yet diverse India.

In his last week in office, over a duration of 5 days, the CJI delivered 20 crucial judgements.   The cases decided in the week of September 22-28 covered a range of issues — from the criminalisation of politics to the discrimination inherent in India’s old adultery law, from the religious aspect of the Ram Janambhoomi title dispute to the civil liberties of activists, and from the legality of the government’s ambitious identification project to the bar on the entry of women between the ages of 10 and 50 into the Sabarimala temple.

On September 25, in context of the petitions seeking to ban charge-sheeted politicians from contesting elections, the CJI expressed concern at the rising criminalisation of politics but said it was not for the court to lay down such rules and that it was the parliament that has the right authority to deal with the matter.

On September 26, the CJI-led bench delivered nine judgments, including the closely watched Aadhaar verdict and the path-breaking order allowing live-streaming of court proceedings.
On September 27, the CJI wrote the judgment striking down the country’s archaic adultery law that treated “husbands as masters”.

Legal experts and advocates claim that the flurry of verdicts seen over the last five days has been unprecedented. “I haven’t seen an outgoing Chief Justice of India deliver so many judgments in the last week of his office. But it also has to be seen in the backdrop that he led benches that have heard so many important issues in the last year. And understand that these judgments are going to have far-reaching consequences,” said advocate Anil Mishra of the Supreme Court.

Advocate Sunil Fernandes, too, termed the development rare. “Seeing the work load Justice Misra picked up in the last few months, this was bound to happen. He was also part of many constitutional matters. Full credit for what he has done in the last week. He has left his mark on history and will be remembered for playing a role in the constitutional development.” Justice Misra retires on 2 October. The new CJI Ranjan Gogoi (being the first northeast Indian CJI ever) has a tenure of next 13 months.

It is not completely wrong to expect him the streak of just decisions in the wake of Justice Misra’s example. The idea of judicial justice is highly subjective because among other reasons, it calls for moral action. But moral action is more insightful and hence ambiguous than it seems on the face of it. “Morality cannot be martyred at the altar of social morality. Only Constitutional morality exists in our country,” in Justice Misra’s own words. A passionate upheaval of thought has always been a pre-requisite for an upheaval of a social structure. In Justice Misra’s insightful statements, he questions complexities and intricacies of our social backgrounds. In a unified spirit of democracy, his words on homosexuality that redefined ‘love’ or on adultery that revealed the patriarchal truth to our society, or on the Sabarimala verdict redefining social reach of women, CJI Misra has been a remarkable personality of the Indian Judiciary.

In his pursuit of a better India; more accepting, more mentally uplifted, more insightful, more appreciative, Justice Misra has worked on true ideals of our law – to be honest, just, and fair. Challenging all odds, the month of September saw the becoming of this India, in its nascent being. There are miles yet to go, but the first few have been traversed.

Thank you, Chief Justice of India Dipak Misra. Fare well.

Feature Image Credits : The Tribune

(With Inputs from Hindustan Times)

Kartik Chauhan

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DUB Speak

An Issue Of Equality Not Entry: Sabarimala Temple 

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Located in the Pathanamthitta District of Kerala the Supreme Court ordered the Sabarimala temple to do away with the practice of prohibiting women’s entry in the temple 

“Those who believe religion and politics are not linked don’t understand either “. This statement by Gandhi has proven itself to be true time and again. In the Indian context it has taken the form of Partition, Hindu Code Bill, Khalistan movement, Godhra riots, etc. The entanglement of religion and politics resurfaced again this month as the constitutional bench of the Supreme Court took up the Sabarimala case. 

It may become “another Ayodhya ‘if the court tries to tinker with the religious practices”, warned the defendants. The complex issue began when a petition was filed challenging rule 3B of the the Kerala Hindu Places of Public Worship Rules which puts restrictions on women’s entry. The Sabarimala temple prohibits entry of women between the age group of 10 and 50, because of the celibate nature of Lord Ayyappa. He is believed to be a Brahmachari and in mythology women are viewed as a source of distraction to them. 

The Supreme Court bench headed by Chief Justice Dipak Mishra on Wednesday ruled “what applies to a man applies to the woman as well, woman’s right to pray was not dependent on any law but actually a constitutional right “ It was further added that entry can only be prohibited on grounds of health and public morality. The defendants of the practice led by organisations like Kshetra Samrakshana Samiti argued that it was based not on sex but menarche (the onset of menstruation) which is absurd since menarche is a physiological condition applicable on women only.

There’s a great need to break the religious taboos that associate menstruation with impurity as it is used as the basis of religious practices that are discriminatory to women. Patriarchy in India has been systematized through a number of religious customs and social practices, which need legal assistance to be dealt with. It is essential that these customs are tested by constitutional provisions. Keeping women out of temples is not simply denying them a place of worship but a public statement of their social inferiority and subordinate status. The values enshrined and promised to every Indian woman in the constitution are far from reality however there’s still hope.  Cases such as that of Sabarimala temple as put by a Supreme Court advocate “help bridge the gap between constitutional ideals and our social reality “.

Feature Image Credits – OPIndia

Bhavika Behal 

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News

Delhi University Challenges Delhi High Court order on employees’ pension

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The University of Delhi has decided to challenge a Delhi High Court Order in the Supreme Court, which directed the University to grant monthly pension to over 300 teachers.

The decision to challenge the order was taken on Saturday, April 29th, 2017 in a meeting called to discuss issues centered around general provident fund (GPF), monthly pension, cumulative provident fund (CPF) and lump sum money at retirement for teachers. Issues around the absorption of ad-hoc teachers as permanent faculty, promotions and problems of physical education teachers were also discussed during the meeting that lasted for around 10 hours, as per a council member, who attended the same.

According to a Council member, Rajesh Jha, the decision to challenge the order was taken despite strong dissent from the members present. “We also submitted a statement of concerns over pension issues signed by five council members during the meeting,” he added.

Nandita Narain, the president of Delhi University Teachers’ Association (DUTA) told the media about the huge legal expenses and around a decade long litigation period the employees had to struggle through in order to earn the bench division litigation. The HC order challenge has been dissented against by a large number of employees of the University, and are dissapointed by the “callous approach” of the Ministry of Human Resource Development (MHRD), added the DUTA President.

A dharna was also organised by the DUTA members outside the Vice Regal Lodge, the venue for the meeting, for voicing their concerns around the issue.

 

Feature Image Credits: Flickr

Priyal Mahtta
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DUB News

Elections: A Secular Exercise?

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In a landmark ruling by the Supreme Court, the judicial body has passed governance wherein no political party can conjure votes on the foundation of religion, caste and creed.

The verdict by the apex court was announced as a result of deliberations by a seven-member bench and was a follow-up to a petition filed in 1996. Seeking to retain the secular ethos of the Constitution, it takes into account the vague nature of Section 123 (3) of the Representation of the People Act (1951) which states that appeals made by candidates on the grounds of religion, race, caste, community, or language would be banned. The ruling is sought to shed clarity on the wordings, so as the conclusion to be a wholesome ban on the use of religion in campaigning practices. This shall have rippling effects on the forthcoming state elections coined to take place in UP, Punjab, Goa, Uttarakhand, and Manipur; three out of five states where caste politics is a major factor in soliciting alliances and votes.

In its functional representation, a wall is being endeavored to be built between state and religion. The Constitution ascribes India as a secular country, and this move pushes the foundational strength of that claim. It can be understood that by the rule of extension, elections should also be viewed as a secular practice. Thus, the aim was to embellish the secular character of India; a country which is characterised by its confluence of diverse backgrounds.

This judicial activism aiming to fill the gap between one of the laws can be deemed promising, yet is a long throw from being effectively implemented to becoming successful. Firstly, there is the argument of Free Speech according to which discussions on religion and caste are constitutionally protected and cannot be restricted. Thus, any party genuinely working towards the escalation of minority classes will find itself in a predicament. Secondly, the law has existed before, and only a certain aspect of it has been modified. However, its working remains inadequate since Independence. Thirdly, the implementation is a major hindrance which needs to be entangled. Appealing for votes by pulling the banned strings is not done in the open, and is subtle in approaching voters which may prove to be hard to monitor. Fourthly, this controversial move can prove to be an advantage for BJP as it lobbies for Hindus and Hindutva particularly, which the Supreme Court in 1995 ruled as ‘a way of life’ and not a religion, and thus handing them a rabbit’s escape.

The apex court’s ruling is plausible for national reasons but unfortunately is also rigged with loopholes which might result in it being one of the forgotten laws of the land.

Image Credits: International Business Times

Saumya Kalia

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Needed or Overreaction? The Supreme Court to decide on ban on Sardar jokes

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The Supreme Court has heard many petitions in the past to ban jokes on the Sikh community. On March 17, it agreed to hear a plea by Shiromani Gurdwara Parbandhak Committee (SGPC), along with other petitioners seeking a ban on the circulation of such jokes. The petition will be heard on April 5.

The petitioners believe that a stereotype has been forged against the Sikhs and the Sardars due to which they face discrimination. Even the PILs filed earlier, for example, by the lawyer Harvinder Chowdhury, supported by the Delhi Sikh Gurudwara Managing Committee (DSGC), talked about how these jokes are a violation of the right to equality and how there are various websites which showcase these insensitive jokes, which tend to portray the Sardar community as people of low intellect. The petitioners want the Ministries of Telecom and Information and Broadcasting to either ban the said websites or formulate guidelines for the content on them.

The question that arises is, is it right for the court to ban these jokes or filter the websites for content? Is it not infringing upon the right to freedom of expression of people?

In hearings for the earlier petitions, a bench led by Chief Justice T S Thakur praised the Sikh community for their contribution in the development of our country but said that the court’s orders have to rational and within the judicial dimension for them to be implemented. They also pointed out that not all people of the community get offended by such jokes. Rather, people like Khushwant Singh have written books on such jokes which have been enjoyed by everyone. Yet, the PILs state that the community is hurt and offended, and can’t stand the lampooning anymore.

It makes one think- where does one draw a line? When does a joke start bordering on a regressive stereotype used to subjugate people of one community? Are the jokes on people of specific communities, like the Sardars, people from the North-East India, or Bihar only harmless or are they an indication of a very problematic mind-set? Is cracking a joke on another community intolerant or taking offence to it is? The issue is complex and can certainly be helped along in its disentanglement by the discussions and the verdict of the court, so that the blurred lines between harmless jokes and vicious prejudices become clearer.

Image credits: s3.india.com/

Nishita Agarwal

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News

Petition for LGBT Rights: An ‘Enactus Ramjas Initiative

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The Supreme Court of India, which is considered the ‘final guardian and interpreter’ of the Indian Constitution sent shock waves across the world as it overturned the judgement of the Delhi High Court(2009) which declared Section 377 unconstitutional. The SC verdict infringes the ‘right to life and personal liberty’ that the Constitution of India promises to each and every citizen irrespective of their place of birth, caste, creed, religion, race or sex.

The SC’s move has moved all spheres of society, Delhi University being no exception. Enactus Ramjas, in collaboration with NGO ‘NAZ Foundation’ plans to start an online petition to restore the rights of personal liberty to the LGBT community. They also wish to forward the demand for withdrawal of the judgement criminalising sexual intercourse between same sex people.

In order to muster maximum support from the youth of DU, a Facebook page in name of ‘E-queer-LIBRIUM’ has been launched that works towards sensitisation towards the gay community. The group provides a platform to reflect the voice of discriminated and reach out to the concerned authorities. Not only is Enactus Ramjas supporting the LGBT community in their legal battle for equality and justice, but also the members have started an innovative plan called – ‘TransCreations’ where the  transgenders are given an opportunity to work in the jewellery designing project of Enactus Ramjas. The jewellery designed is then sold online, in college fests and in select jewellery shops as well. “The workers are thus guaranteed an alternate respectable income, which is a small step towards making them socially acceptable, independent and strong.” said Robin Kumar, President, Enactus Ramjas.

Thus, while the fate of this minority group hangs on a loose thread, it is important for us to observe solidarity and create an atmosphere conducive to each and every member of the society.

Relevant links :

Official FB Page of ‘E-queer-LIBRIUM’ – https://www.facebook.com/equeelibrium

Official FB Page of the Trans’Creations’ Programme-https://www.facebook.com/Transcreations?fref=ts

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Bazinga

Bazinga: Emerging dilemma as SC stands for ‘equality’

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If there is one institution that people see as something that is truly beyond reproach and has the integrity to do what is right, it is the Supreme Court. The hallowed chambers of this court are a place where the right to equality is truly sacrosanct. In light of the media spectacle surrounding the verdict on Section 377 and the condemnation of the entire world that accused the Supreme Court of being out of date, the court decided to answer its critics. The SC has decided to do away with standards of reasonable doubt and remove conventional defenses such as self defense and the insanity plea. In the spirit of equality however it has decided to impose these on everyone equally. The court believes that this move ensures that nobody can now claim that the moves of the court were illegal or against the notion of equality.

1)      The ‘it is not natural’ defence

The idea that anything or anyone unnatural go scot-free is something that the courts are not okay with. Hence they have decided to crack down on all those who defy natural and stray from the natural order. Under this, all individuals with hearing aids, prosthetic limbs, wheelchairs, breast implants and artificial joints can now be prosecuted. This is a bold move that ensures that individuals do what is natural and avoid any sort of deviant behaviour.

2)      The ‘it is against our culture’ defence

The SC believes that we must hold our culture on the highest possible pedestal and the law must take the backseat. With the cultural fabric of this nation withering away and the youth getting drawn to the ways of the west, the courts decided to take a stand. So people can now be held criminally liable for listening English music, going to modern hospitals rather than babas who practice ayurveda, not wearing ghoonghat or putting sindoor and commiting any other act that is not compatible with Indian culture.

3)      The ‘Baba Ramdev said it’ plea

This in essence is the replacement for the ‘Insanity Plea’. It’s not just limited to Baba Ramdev, rather all Yoga teachers turned moral experts turned political activist preachings are admissible in a court of law as evidence.  In accordance with this all schools shall no longer be teaching sex education, rather Yoga education is going to be the way forward. As per this law everything any baba says is true and sacrosanct and forms the fabric of our otherwise immoral society. As a result of this plea, Asaram Bapu and his son have just been released from jail. Also the system of community service has now been removed and all homosexuals can go to Baba Ramdev who claims to have found the cure for this deviant behaviour.

4)      The ‘religion’ appeal

The SC believes in equality and upholds the idea of secularism. In keeping with this spirit the SC decided to bring back the ancient religious laws. The first step was a historic one and ensures that all atheists are now criminals that can be imprisoned for life. All views that defy religion like abortion, use of condoms, committing one of the seven sins and many other such views are now regarded as illicit and criminal views that go against the state. Also the punishment for these acts will be decided by religious leaders and not the SC , so sharia law, crucifixion, sati are now all fair play.

5)      The ‘it is a disease’ defence

Many opponents of the LGBT community felt that not being straight is a disease and hence it should be criminalized. So in keeping with the court’s strong belief in equality it has decided to criminalize all people that are sick. Basically all individuals that are disabled or terminally ill can now be sent to jail.

These moves by the courts will surely make a statement. The SC also felt that people are actually getting more offended by the tag of being called a Criminal. They feel that many great leaders are criminals in this country and they continue to live their life normally. So why is the LGBT community getting so offended by the criminal tag. It’s time that they take inspiration from the many criminals of this nation like Salman Khan and live life to the fullest because all men are equal in the eyes of the law, even criminals.

Editor’s note: Bazinga is DU Beat’s fake news column. This piece is supposed to be a satire and is not aimed at offending supporters of the LGBT community. If in case you are not a supporter,  it was surely written to offend you.

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