Recent Judgments

Right To Privacy Is A Fundamental Right

Settling the decades long debate on the issue of the right to privacy being a fundamental right, the Supreme Court held that right to privacy is protected under Article 21 of the Constitution of India. In a unanimous decision, a nine -Judge Constitution Bench overruled the judgments in MP Sharma and Kharak Singh cases. The Petitions were disposed of in the following terms:

• The decision in M P Sharma that privacy is not a fundamental right stands overruled.
• The decision in Kharak Singh that privacy is not a fundamental right stands overruled.
• Right to privacy is protected as intrinsic part of right to life and liberty.
• All decisions subsequent to Kharak Singh makes the position clear and will hold the Held.

Service of Notice

The Bombay High Court has recently accepted service of notice in an execution application through WhatsApp messenger after finding that notice served in the form of a PDF file was not only delivered, but the attachment was opened as well.

Justice GS Patel was hearing an execution application wherein the respondent Rohil Jadhav was evading service of notice under Order XXI Rule 22 of the Code of Civil Procedure 1908. He was served notice by an authorized officer of the claimant, SBI Cards and Payments Services Pvt Ltd, by sending a PDF and message to his mobile number on WhatsApp.

Sex With Minor Wife Is Rape

A two Judge Bench of Supreme Court held that sexual intercourse with minor (below 15 years) wife is rape. Justice Deepak Gupta in his Judgment Clarified that Section 198(6) of the CrPC will apply to cases of rape of “wives” below 18 years, and cognizance can be taken only in accordance with the provisions of Section 198(6) of the Code. To this end, the Court read down exception 2 to Section 375 (which defines rape) of the IPC (as amended by the Criminal Law (Amendment) Act, 2013) which allowed such a sexual act. The age of consent has been made 18 from 15 in these cases.

LegaI Heirs Can Prosecute Complaint

The Supreme Court upheld a High Court judgment that allowed legal heirs of the complainant to prosecute the petition before the High Court. The Bench comprising Justice A.K. Sikri and Justice Ashok Bhushan opined, “Had the Code 1973 intended that in case of death of complainant in a warrant case the complainant is to be rejected, the provision would have indicated any such intention which is clearly absent.”

Directives To Prevent Misuse of Section 498A of IPC

The Supreme Court issued new set of directions to prevent the misuse of Section 498A of Indian Penal Code. A two Judge Bench of Justices AK Goel and UU Lalit observed that Section 498A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelly had potential to result in suicide or murder of a woman.

“It is a matter of serious concern that large number of cases continue to be filed under Section 498A alleging harassment of married women. To remedy the situation, we are of the view that involvement of civil society in the aid of administration of justice can be one of the steps, apart from the investigating officers and the concerned trial courts being sensitized. It is also necessary to facilitate closure of proceedings where a genuine settlement has been reached instead of parties being required to move High Court only for that purpose,” it had then observed.

A larger bench has decided to re-consider these directions.

Speedy Disposal Of Bail Pleas

Supreme Court directed courts to dispose of bail pleas within i week. It also issued directions to tackle pendency of criminal cases, reiterating that speedy trial is a part of reasonable, fair and just procedure as guaranteed by Article 21 of the Constitution of India.

Aadhaar-IT Returns Link Is Alright

Supreme Court of India upheld the constitutional validity of Section 139AA of Income Tax Act which made mandatory linkage of IT returns with Aadhaar. However, the Court partially stayed the operation of the Section subject to the outcome of the Constitution Bench Judgment in the main Aadhaar Case in which the very validity of Aadhaar is challenged. The Bench made it clear that those who don’t have Aadhaar need not apply for it for the purpose of filing IT returns. The Court also ruled that S.139AA has no retrospective effect.

Delivering the judgment, the Bench comprising Justice A.K. Sikri and Justice Ashok Bhushan observed, “We are adopting this course of action for more than one reason. We are saying so because of very severe consequences that entail in not adhering to the requirement of sub-section (2) of Section 139AA of the Act. A person who is holder of PAN and if his PAN is invalidated, he is bound to suffer immensely in his day to day dealings, which situation should be avoided till the Constitution Bench authoritatively determines the argument of Article 21 of the Constitution. Since we are adopting this course of action, in the interregnum, it would be permissible for the Parliament to consider as to whether there is a need to tone down the effect of the said proviso by limiting the consequences.”

Cheque Bouncing Cases Can Be Closed if complainant is compensated

The Supreme Court clarified that an accused in a case under Section 138 of Negotiable Instruments Act can be discharged even without the consent of the complainant, if the Court is satisfied that the complainant has been duly compensated. It was also held that the normal role of criminal law that composition of offence is possible only with the consent of complainant/victim is not applicable for cases under Sec.138 of NI Act. This was because the offence under Section 138 was ‘primarily a civil wrong’. Therefore, the power under Section 258 of the Code of Criminal Procedure to stop trial and discharge the accused was available to the Magistrate even though the summary trial under Chapter XXI of Cr.P.C.

Woman’s Right To Love And Reject

A three Judge Bench of Justices Dipak Misra, A.M. Khanwilkar and Mohan M. Shanianagoudar while considering an appeal filed by Accused against his conviction for abetment to suicide of a girl because of his continuous harassment and eve teasing, held that

“One is compelled to think and constrained to deliberate why the women in this country cannot be allowed to live in peace and lead a life that is empowered with a dignity and freedom. It has to be kept in mind that she has a right to life and entitled to love according to her choice. She has an individual choice which has been legally recognized. It has to be socially respected. No one can compel a woman to love. She has the absolute right to reject”

Right of Speech

Every Author Has A Fundamental Right To Speak Out Ideas Freely And Express Thoughts Adequately
In a significant Judgment a Bench of Chief Justice Dipak Misra, Justices AM Khanwilkar and Dr.DY Chandrachud dismissed a petition seeking ban of the book ‘Samajika Smugglurlu Komatollu’ written by Professor Kancha Ilaiah .

Upholding the Author’s fundamental right to free speech the Court held,
“Any request for banning a book of the present nature has to be strictly scrutinized because every author or writer has a fundamental right to speak out ideas freely and express thoughts adequately. Curtailment of an individual writer/author’s right to freedom of speech and expression should never be lightly viewed”

Bail Right

Accused Is Entitled To Default Bail After 60 Days For Offences Punishable With ‘Imprisonment Up To 10 yrs’
Settling the conflicting views of various High Courts, the Supreme Court in a 2:1 majority held that an accused is entitled to statutory bail (default bail) under Section 167(2)(a)(2) of Code of Criminal procedure if the police failed to file the charge-sheet within 60 days of his arrest for the offence punishable with ‘imprisonment up to 10 years.