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September 6, 2018, will be etched in Indian history as the day when love triumphed. At 11:30 am this morning, the Supreme Court issued its verdict on Section 377 of the Indian Penal Code (IPC) subsequently decriminalising homosexuality and gay sex. It was a long, arduous fight for equality that is being celebrated by millions around the world as a step forward in making India a more inclusive society.
For many, it instilled faith in the courts, while others pointed out that it is the very same one that re-criminalised it in the first place. A lot of questions are being raised regarding the process and timeliness of the judicial system. Will it always take years, countless petitions and group efforts to untangle the legal web to get justice?
Keeping our doubts aside for the moment, Homegrown felt compelled to dig deeper and tally up some of the more recent landmark judgements by our courts that have affected the humanitarian nature of this nation. These are laws that have broken ground when it comes to equality, acceptance; they have set a precedent for other legal battles to strengthen and enabled society to reframe its moral compass.
I. Om Prakash Vs Dil Bahar (2006)
What: A rape accused could now be convicted on the sole evidence of the victim, even if medical evidence did not prove rape.
Case Speak: The victim, six months pregnant, was in court because her husband was facing challan proceedings. The accused was a relative and had come to attend the same. Finding her in isolation outside the Zilla Parishad, the accused tried to rape her. However, she raised an alarm and the accused was assaulted by the locals and handed over to the police. Although no evidence of rape was found, the accused was given a seven-year sentence based on the statement of the victim and eyewitness accounts.
A statement from the court read, “It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian woman has the tendency to conceal such offence because it involves her prestige as well as the prestige of her family. Only in few cases does the victim girl or the family members have the courage to go before the police station and lodge a case. In the instant case, the suggestion given on behalf of the defence that the victim has falsely implicated the accused does not appeal to reasoning. There was no apparent reason for a married woman to falsely implicate the accused after scatting her own prestige and honour.”
Homegrown Verdict: The ruling had both positives and negatives. Rapists deserve the worst of the law, and the ruling meant that escape for them has become more difficult. The ruling was based on the fact that the victim of the rape is not an accomplice to the crime and her statement should be relied upon. The need for corroboration arises only in cases where the court cannot place implicit reliance on the statement of the prosecutrix.
While this may hold true, one must also understand that the law can be wrongly misused with terrible consequences. The fact that a person can be convicted even if medical reports suggest otherwise makes it that much easier for false cases to be lodged. The judges of the Supreme Court also simply assume that the Indian woman is pure and noble and can do no wrong.
That being said, it is still a necessary and progressive step forward in a nation where women have borne the pain brunt of victimization for far too long. This might be considered a tipping of the scales in favour of a community who have had them tipped against them for far too long, so perhaps it is about restoring a balance for the court. Besides which, it’s clear rapists in this country (and plenty of educated people too) need their thinking on this issue rewired.
II. The Anchorage Case (2011)
What: Restoration of the conviction and sentence of six-year rigorous imprisonment imposed on two British nationals who were acquitted by the Bombay High Court in a pedophilia case.
Case Speak: Two Britons, Duncan Grant and Allan Waters, ran the Anchorage Shelter Home in Colaba, Mumbai, where they sexually abused children for years. In 2001, working on a tip-off, Childline NGO gathered evidence and filed a case against the two British nationals. The sexual abuse of the boys at Anchorage Shelters was also brought to the notice of Advocate Ms. Maharukh Adenwalla who works on issues of child rights and she brought the same to the attention of the Bombay High Court. After the facts became public, the two British nationals absconded but were made to face trial after a lengthy extradition process.
After taking all the facts, evidence and witness accounts, the sessions court convicted them under sections 120 B, 107, 373 and 377 IPC and sentenced Grant and Waters to six years imprisonment and a fine of 20,000 pounds each. However, they challenged this in the Mumbai High court, and in a shocking judgement, were acquitted of all charges. Finally, the case went to the Supreme Court, which overturned the High court’s judgement (uncommon to say the least) and restored the original sentence, thereby convicting the paedophiles. The judges, while passing the judgement, rightly said, “A deterrent punishment is being imposed in order to help wipe out the name of India from the map of sex tourism. Let paedophiles all over the world know that India should not be their destination in the future. Children are the greatest gift to humanity. The sexual abuse of children is one of the most heinous crimes.”
Homegrown Verdict: The case achieved widespread media coverage, which stressed on the fact that child abuse is rampant behind closed doors in India. More often than not, the abusers are in complete control of the victims. They are vulnerable, scared and lack support. In such a time, this judgement (albeit, even with the High Court blemish) gave hope to NGOs and other similar organisations that justice still prevails in this country.
III. The Nirbhaya Case (2012)
What: 4 out of 5 rape accused received the death sentence and as a result of this case the rape law was amended to go beyond penile-vaginal intercourse. The new definition penalizes penetration of any orifice of the woman with any part of the man’s body or with any object.
Case Speak: This hardly requires retelling given the freshness of it in the nation’s collective consciousness, but here it is anyway. A young girl was returning home with a male friend after watching a movie. They boarded a bus and soon figured out that something was wrong. The six people on board, including the driver knocked the boy unconscious with an iron rod and then raped her one at a time. They shoved an iron rod in her vagina, severely damaging her intestines, abdomen and genitals. Finally, they threw the boy and the woman out of the bus, and drove away.
The woman was rushed to the hospital and the men were arrested within 24 hours. Eventually, the woman succumbed to her injuries, and the men immediately went on trial. While on trial, one of the accused committed suicide in jail. The remaining five were subsequently charged for rape and murder. The four adults were granted a death penalty, while the minor was sent to a reform facility for three years.
Homegrown Verdict: The case received media coverage like none other. The aftermath was that six new fast track courts were created to hear rape cases, which means that the rape cases do not remain stagnant in courts for far too long. Various laws were passed and amendments were made, which included a mandatory minimum sentence of 20 years in case of a rape as well as the widening of the definition of rape. The impacts of the latter are already being felt as is evident with the Tarun Tejpal rape case.
Although various changes were made, one might argue that there’s still a lot that needs to be addressed. The fact that marital rape is still not considered a crime is a serious issue in our country. Another matter that needs addressing however, is the fact that we refuse to foresee things, and only act after a heinous crime has been committed and under immense public scrutiny. Rape has been rampant in India for years. Why did it take a brutal murder for these laws to be passed? Surely they could have been discussed and passed years before? We must now make sure that the laws are stringent and the punishment for a convicted rapist should be nothing short of death.
IV. Tamil Nadu Vs Suhas Katti (2004)
What: The first case involving conviction under the Information Technology Act, 2000, related to the posting of obscene messages on the Internet.
Case Speak: The case was related to the posting of obscene and defamatory messages about a divorcee woman in a Yahoo messenger group. The accused, said to be a family friend of the victim, wanted to marry her. But she ended up marrying someone else, much to his dismay. After she got divorced, he tried to woo her again, only to be rebuffed. Incensed, he started harassing her and posting her number on messenger groups, which led to plenty of lewd and annoying phone calls to the victim. Finally, the victim decided to file a complaint under the Information Technology Act.
Although the defence put a good case, the Additional Chief Metropolitan Magistrate, on the basis of the available witnesses and the other relevant evidences held the accused guilty under section 469 and 509 of Indian penal code and section 67 of the Information Technology Act 2000. The accused was convicted and sentenced in accordance with the aforementioned sections (fines and imprisonment).
Homegrown Verdict: The impact of the case was far reaching. The internet had only started to emerge hugely within the Indian context and the laws for it were hardly stringent. However, the IT act and its implementation in this case helped both the courts and the public: it set a benchmark for the courts, inspired people and gave them strength to lodge cases in case they were harassed on the internet.
V. NOTA (2013)
What: Right to negative vote.
Case Speak: On October 14, the Supreme Court recognised the right to negative vote for the electorate in the country. The voters will now have a “None of the Above” option if they don’t feel that the candidates deserve a vote. “Negative voting will lead to systemic change in polls and political parties will be forced to project clean candidates. If the right to vote is a statutory right, then the right to reject candidate is a fundamental right of speech and expression under Constitution,” the court said.
Homegrown Verdict: NOTA, as of now, is nothing but a hoodwink. It is just a right to register a negative option, but doesn’t have any effect on the final result. Think of it this way – Out of a 100 votes, if 99 are NOTA votes, the candidate with one vote will come into power, rendering the 99 votes useless. Our detailed analysis of NOTA can be found here.
VI. Re-opening dance bars (2013)
What: The Supreme Court on July 16 gave its go-ahead to the reopening of Dance Bars in the maximum city and elsewhere in the state.
Case Speak: On 15th of August, 2005, Home Minister RR Patil announced that dance bars would be shut all across the state. He stated that the dance bars were corrupting the moral fibre of the youth, and that dance bars were creating havoc in Maharashtra. Because of the ban, 75,000 girls became unemployed, and although a rehabilitation program was in place, it wasn’t implemented, and many of the girls left the state or had to resort to prostitution. Eight years later, the Supreme Court finally struck down the ban. The Supreme Court had taken up the case after the state government contested the 2006 Bombay High Court order that the Act prohibiting dancing violated the right to carry on one’s profession under Article 19 of the Constitution. The HC also held that banning dances in some establishments while permitting them in others (like five star hotels and pubs) was contrary to the rule of equality.
Homegrown Verdict: Despite the fact that the ban had been lifted, the police has not handed the licenses to the bar owners, stating that they’re waiting for an order from the state government. To counter the verdict, the state government is working on an ordinance to ban dance bars. Another option being considered is making getting licences more difficult by adding stringent conditions and making the annual license fee unaffordable. While the claims that some dance bars lead to trafficking and prostitution may be valid, one can also argue that a majority of the girls make an honest living by dancing, and taking that form of employment without proper means for rehabilitation organized by the government is incredibly unjust. If the state government had its way and the bars don’t re-open, it must ensure that the rehabilitation of the dancers, which as promised, is fulfilled.
VII. Social Media (2013)
What: In view of public outrage over people being arrested for making comments or liking posts on Facebook, Centre had on January 9 issued advisory to all states and UTs asking them not to arrest a person in such cases without prior approval of a senior police officer.
Case Speak: On May 16, the Supreme Court, while delivering its verdict on a plea by Shreya Singhal who had petitioned the court against the arrest of an activist Jaya Vindhyalaya, under provisions of the IT Act on a complaint filed by an Andhra Pradesh MLA, ruled that no person would be arrested under Section 66A of the IT Act for posting objectionable comments on social networking websites without prior approval from an officer of the Inspector General of Police-rank.
Homegrown Verdict: This one’s quite simple, actually. The arrests of the girls for posting Facebook statuses sparked massive outrage throughout the country, making the Supreme Court issue the advisory. While common sense prevailed in this case, the law itself is pretty ambiguous. The apex court is still examining the constitutional validity of section 66A of the IT Act and what exactly could be regarded as “grossly offensive” information, the punishment for which is a maximum imprisonment of three years.
VIII. Cheap Cancer Drugs (2013)
What: The Supreme Court rejected a patent plea by Swiss drugmaker Novartis AG for cancer drug Glivec, boosting the case for cheaper drugs for life-threatening diseases.
Case Speak: In 2006, Swiss-based company Novartis applied for a patent, stating that the substances used in the drug were an invention. They wanted exclusive rights for manufacturing Glivec and to restrain Indian firms from making generic medicine. After a seven-year-long battle, the Supreme Court finally delivered its judgement, dismissing the plea.
“We certainly do not wish the law of patent in this country to develop on the lines where there may be a vast gap between the coverage and the disclosure under the patent; where the scope of the patent is determined not on the intrinsic worth of the invention but by the artful drafting of its claims by skilful lawyers, and where patents are traded as a commodity not for production and marketing of the patented products but to search for someone who may be sued for infringement of the patent,” the bench said.
Homegrown Verdict: The judgement is remarkable in the sense that it provides massive relief to over 28 lakh cancer patients in India. Consider this: a one-month dose of Glivec costs around Rs 1.2 lakh, while generic drugs, manufactured by Indian companies, costs Rs 8,000. A patent would have given Novratis a 20-year monopoly on the drug, meaning that it would have been impossible for the average Indian to find an affordable cancer drug in that period.
IX. Curbing the sale of Acid (2013)
What: The court said that acid should be sold only to people who show a valid identity card. Buyers will also have explain why they need the chemical and sales will have to be reported to the police.
Case Speak: After considering plenty of acid attack cases and the change.org petitions, the Supreme Court finally decided to act and ordered the federal governments to regulate the sale of acid in the country. The court said that acid should be sold only to people who provide a valid identity card.
Buyers will also have explain why they need the chemical and sales will have to be reported to the police. “We direct the chief secretaries of all states and the administrator of the Union Territories to comply with the direction given in the order on July 18 and frame rules in tune with model rules framed by Centre to regulate the sale of acid at the earliest and possibly by March 31,2014,” the bench said.
In addition to that, they also asked all chief secretaries to file a response on providing free-of-cost treatment, including plastic surgery, to acid attack victims.
Homegrown Verdict: The Supreme Court ruling has been welcomed with enthusiasm. India has close to a thousand acid attacks every year. These attacks disfigure women, destroy their life and most of them either suffer from chronic depression, live in isolation or commit suicide. The regulation of sale of acid in Bangladesh saw a significant decline in acid attacks, and fingers are crossed for the same to happen in India.
X. Lily Thomas vs Union of India (2013)
What: Any Member of Parliament (MP), Member of the Legislative Assembly (MLA) or Member of a Legislative Council (MLC) who is convicted of a crime with more than two year sentence, will be disqualified as an elected representative on the date of conviction.
Case Speak: The Supreme Court of India, in their judgement of the Lily Thomas v. Union of India case ruled that any Member of Parliament (MP), Member of the Legislative Assembly (MLA) or Member of a Legislative Council (MLC) who is convicted of a crime with more than two year sentence will be disqualified as an elected representative on the date of conviction. The verdict sent waves of panic amongst the government, as many of the MPs have pending criminal cases against them. In an attempt to overturn this decision, the Representation of the People (Second Amendment and Validation) Bill, 2013, was introduced into the Rajya Sabha on 30 August by Law Minister Kapil Sibal; by the proposed amendment, representatives would not be disqualified immediately after conviction. The Indian government also filed a review petition, which the Supreme Court dismissed.
Homegrown Verdict: The effect of the ruling was immediate: three MPs – Rasheed Masood, Lalu Prasad Yadav and Jagdish Sharma, all since convicted, have lost their Parliament membership. According to the Association of Democratic Reforms, as many as 72 sitting MPs face criminal charges and could be disqualified if convicted for over two years. If that is the case, one can hope that the dream of “Clean Politics” might not be that far-fetched, after all?
XI. National Legal Services Authority v. Union of India
What: The court declared transgender to be a third gender, affirming the community’s right to equality and recognition by the Constitution. It provided transgenders with the right to legally self-identify as male, female or third gender and granted them protections and reservations in educational institutions and jobs as a community that has been treated as socially and economically backward for countless years.
Case Speak: The National Legal Services Authority (NALSA) was the primary petitioner in this case along with Poojya Mata Nasib Kaur Ji Women Welfare Society and activist Laxmi Narayan Tripathy. They sought for the fundamental rights and equality for India’s transgender community.
A two-judge bench comprising of Justice K.S. Panicker Radhakrishnan and Justice A.K. Sikri heard the case. The court provided legal recognition for the third gender while pointing out that insisting on Sex Reassignment Surgery (SRS) as a requirement for changing one’s gender is illegal. As a community that has been discriminated against and disenfranchised for countless years, they directed the government to recognise transgenders as a socially and economically backward class and provide them with reservations in educational institutions and for public appointments, and other welfare schemes for empowerment and social upliftment.
Centre and State governments across the country were asked to provide proper medical care to transgender people as well as separate toilets and other public facilities. Also, they are to take steps in creating public awareness to destigmatise the community.
Homegrown Verdict: While the judgement excluded other members of the queer community (LGBQI), the validity of Section 377 can be questioned further using the Obiter Dicta of this judgement. It was an acknowledgement of discrimination that has existed for decades in society and insisted on not just the legal change but also directions of efforts being made to change the mindsets of others in society regarding the transgender community. It recognised the fundamental rights of a community that for far too long lived and struggled on the edges of society.
XII. Right To Privacy (2017)
What: A nine-member SC bench declared, once and for all, that the right to privacy is an intrinsic fundamental right under Article 21 of the Indian Constitution – protection of life and personal liberty.
Case Speak: While each judge came to the decision with their own interpretation and reasoning, as stated in the 547-page-long judgment – they overruled verdicts previously given in the 1958 MP Sharma case and the 1961 Kharak Singh case, both of which dictated that privacy is not a given under the Constitution as a right – the final consensus was unanimous, an uncommon occurrence more so for cases as big as this. The bench, led by Chief Justice JS Khehar, comprised of Justices J Chelameswar, SA Bobde, RK Agrawal, Rohinton Nariman, AM Sapre, DY Chandrachud, Sanjay Kishan Kaul and S Abdul Nazeer.
The original writ petition in the case for right was filed by Retired Karnataka High Court Judge KS Puttaswamy in 2012 in a stand against the government’s move to make Aadhaar cards mandatory – creating a central online database with the biometrics and personal details of over a billion people, which, realistically speaking, could easily be misused by a number of parties.
Representing Judge Puttaswamy’s fight were advocates Anand Grover, Meenakshi Arora, Kapil Sibal, Gopal Subramanium, Arvind Datar, Shyam Divan, Jayant Bhushan and Sajan Poovayya, along with countless Indian citizens across the country who refused to be quiet and voiced themselves, mobilising others and creating awareness about the issue across social media platforms.
Homegrown Verdict: While Aadhaar may have been at the core of this latest judgement, its effects go much further than that. At a time when Indians are in a state of fear about basic choices like what they eat, what they wear, and who they love, the passages offered by these judges in the pages of their verdict offer hope again. Sexual orientation is an attribute of one’s right to life and liberty, and the judgement made clear their stance on Section 377. It can also now limit the intrusion of State agencies in an individual’s personal lives, but in today’s day and age, it is a law for the protection of personal data overseeing the collection and its use by private companies that is indeed the next step towards digital privacy. But how ready are we for this? Will Government surveillance, to an extent, prevent social atrocities, such as the buying and selling of rape videos through social media platforms. Can it prevent the dissemination of fake news, that is then used to agitate and mobilise hate groups and tension? Nab cow vigilantism and lynchings Where does one draw the line between personal, self-preservation and information dissemination for the sake of national security?
XIII. Decriminalisation of Homosexuality (2018)
What: Section 377 was first challenged in 1994 by the AIDS Bhedbhav Virodhi Andolan, followed by the Naz Foundation challenging the constitutionality of Section 377 in Delhi High Court in 2001. After being scrapped and then its decriminalisation being overturned, a five-judge Constitutional bench began hearing petitions challenging Section 377 in 2018. The result was a tremendous victory and decriminalisation of queer sex.
Case Speak: In July, 2018 a five-membered Constitutional bench led by Chief Justice of India Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, began hearing petitions against Section 377. The petition that fueled the convening of this bench was a petition filed by Bharatnatyam dancer Navtej Singh Johar, chef Ritu Dalmia, business executive Ayesha Kapur, journalist Sunil Mehra and hotelier Aman Nath. In this petition, the five people in question claimed that their “rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity, and equality, along with the other fundamental rights guaranteed under Part-III of Constitution, are violated by Section 377.”
Homegrown Verdict: This verdict is groundbreaking for all those who have lived with concealed identities all their lives and a massive step forward towards redefining the meaning of democracy for India. This verdict will go down in history as a massive step towards achieving the true essence of equality. With the Bench quoting the likes of Shakespeare, Nelson Mandela, Leonard Cohen, Martin Luther King Jr., to name only a few, the judgement was nothing short of being iconic.
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