Legal Language Assignment

Name : Anshula Motiram

 Facts :
• The complainant, Joseph shine, filed a case challenging the constitutional Validity of
Section 497 of The Indian Penal Code, along with 198 (2) of The Code of Criminal
Procedure.
• A friend of the complainant died by suicide after a woman charged him with rape, however,
the charge was malicious. He argued that since we believe in Equality under Article 14 of
the Indian Constitution, such sections are violative of equality, a dangerous weapon, and are
gender biased.
• Furthermore, the woman is not even given the right to file a complaint if her husband has
sexual intercourse outside their wedlock.
• The right is only manifested with the husband of the woman with whom the sexual
intercourse was committed, and in case the husband has no issues with it, no offence is
committed.
  Issues :

1) Whether the provision for adultery is arbitrary and discriminatory under Article 14?
2) Whether Section 497 of the IPC is constitutionally valid or unconstitutional?
3) Whether the provision for adultery encourages the stereotype of women being the property
of men and discriminates on a gender basis under Article 15 as if the husband has
consented to such an act, then such an act will no longer be considered an offence?
4) Whether the dignity of a woman is compromised by the denial of her sexual autonomy and
right to self-determination?
5) Whether criminalizing adultery is intrusion by law in the private realm of an individual?
6) Whether adultery laws should be made gender-neutral? As per Section 497, there is no
legal provision claiming that a woman can lodge a complaint against her husband who has
committed adultery; should that be amended?
7) Should the woman of the offender be given a right to file a complaint for the act committed
by her husband against the sanctity of their marriage?
 Arguments
 Petitioner :
1. The Petitioner argued that the provisions were violative of fundamental rights granted under
Articles 14, 15 and 21 of the Constitution, due to their paternalistic and arbitrary nature. It was
submitted that since sexual intercourse was a reciprocal and consensual act for both the parties,
neither should be excluded from liability.
2. The Petitioner further contended that Section 497 of the IPC was violative of the fundamental
right to privacy under Article 21, since the choice of an intimate partner fell squarely within the
area of autonomy over a person’s sexuality. It was submitted that each individual had an
unfettered right (whether married or not; whether man or woman) to engage in sexual intercourse
outside his or her marital relationship.
3. It was argued that the law provided for a man’s punishment in case of adultery, whereas no action
against a woman was provided for. Under the Section, a woman was not permitted to file a
complaint against her husband for adultery due to the lack of any legal provision to such effect.
 Respondents :
1. The respondents claim that adultery affects the spouse, children and the morality of the society as a
whole. The counsel also stated that adultery as a crime is morally outrageous to society and all the
perpetrators committing such a crime must be liable for a penalty. It is an offence committed by an
outsider with full knowledge that destroys the sanctity of marriage and family.
2. The discrimination by the provision is saved by Article 15(3), which provides the state the right to
make special laws for women and children.
3. Also, the counsel contended that the Right to Privacy and Personal Liberty under Article 21 of the
Constitution of India was not an absolute right and that there were reasonable restrictions when public
interest was at stake. The Right to Privacy provision does not provide protection of privacy to an
individual who is engaging in sexual intercourse with another married person outside the purview of
his/her marriage.
4. Section 497 is actually acting as a protector for society from such an immoral activity that will outrage
the institution of marriage; hence, it should not be struck down.
 Judgement

1. The Supreme Court of India rendered a unanimous decision in Joseph Shine v. Union of India.
Among the judges who heard the case, there were no opposing views. A five-judge panel made
up of Chief Justice Dipak Misra, Justices Rohinton Fali Nariman, D.Y. Chandrachud, Indu
Malhotra, and A.M. Khanwilkar delivered the decision.
2. Judges unanimously agreed that Section 497 of the IPC was unconstitutional, which is reflected
in their decision to overturn the law.
3. The Hon’ble Supreme Court struck down Section 497 in this landmark case and held it
unconstitutional and violative of Articles 14, 15 and 21 of the Constitution of India.
4. It also asserted that Section 198(2) of the CrPC was unconstitutional to the extent as and when it
is applied to Section 497 of the IPC. This decision has revoked a lot of prior judgements that
criminalized adultery.
 Judgement

4. Further, Justice D.Y. Chandrachud stressed that misogyny and patriarchal beliefs about the sexual
control of a woman found no place in our constitutional order, which respects dignity and
autonomy as inherent to an individual.
5. Section 497 is considered as the wife’s encroachment on her right to life and personal liberty by
accepting the notion of marriage which overthrows the true equality.
6. This section denies the substantive equality as it provides that women are not able to give her free
consent for the sexual acts in a legal order which considers them as a sexual property of their
spouse.
7. Therefore, section 497 is violative of Article 14 of the Indian Constitution, and it also violates the
non-discrimination clause of Article 15 of the Constitution of India. This section also lays strong
emphasis on the consent of the husband which leads to the subordination of women. Hence, it
clearly violates Article 21 of the Constitution of India.
 Judgement

8. Justice Indu Malhotra was of the opinion that adultery should be a civil wrong, as the
freedom to engage in consensual sexual activity outside the purview of marriage does not
actually guarantee protection under Article 21.
9. Hence, she concluded that Section 497 did not meet the three-fold requirement for invasion
of privacy under Article 21.
10. The Apex Court, thus, stated that Section 497 was old and constitutionally invalid as it
robbed a woman of her autonomy, dignity and privacy. Thus, this Section was an
infringement of Article 14.
11. The Bench further stated that this Section was biased as it focused on one gender specifically
and was against the principles of Article 15. Further, the Court claimed that Article 21 denied
women the constitutional guarantees and fundamental rights of dignity, liberty, privacy and
sexual autonomy.
 Ratio Decidendi

• The court said that any wrong like criminal sanctions should be a public wrong but when it
comes to cases of adultery, it is a private wrong.
• The right to dignity says that a person should be penalised only when it is necessary to do so
and proper analysis and inquiry should be carried out before deciding to punish them. Further,
no one should treat a woman as a chattel or some property.
• Thus, the Hon’ble Supreme Court, in its judgement, rightly pointed out that such a law is
highly discriminatory and does not go hand in hand with modern times and thus, declared it to
be unconstitutional.
• After this landmark judgement, adultery is now only used as one of the grounds for seeking
divorce and a person engaging in sexual activity with a person other than his/her spouse will
not be punished.
 Aruna Shanbaug v. Union of India (AIR 2011 SC 1290)
(Facts – Issues – Arguments – Judgement)

Facts :
• Aruna Ramchandra Shanbaug used to work as a nurse at King Edward Memorial Hospital in
Mumbai. On November 27, 1973, she was attacked by a hospital cleaner who choked and
strangled her with a dog chain to prevent her from resisting a rape attempt. When the attacker
realised that Aruna was menstruating, he sexually assaulted her.
• The next day, on November 28, 1973, Aruna was found unconscious on the floor with blood all
around her. A cleaner discovered her in this state. The strangulation had cut off oxygen to her
brain, causing severe damage to the cortex and a contusion in the brain stem, along with an injury
to the cervical cord.
• In 2009, after 36 years since the incident, a friend of Aruna filed a petition under
Article 32 of the Indian Constitution. For all these years, Aruna had been in a ‘Permanent
Vegetative State,’ unable to move her limbs and reliant on mashed food. She was completely
dependent on KEM Hospital in Mumbai for her care.
 Issues :
1. The issues raised in Aruna Shanbaug vs Union of India are:
2. Should the withdrawal of life-sustaining systems and means for a person who is in a
vegetative state (PVS) should be permissible?
3. Does a person’s family or next friend have the authority/ right to seek the withholding or
removal of life-supporting measures if the individual has not made such a request already?
4. Whether Aruna Ramchandra Shanbaug be declared dead?
5. Should the Right to Die fall within the ambit of Article 21 of the Constitution?
6. Whether sections 306 and 309 of IPC be constitutionally valid?
7. Should euthanasia be permitted and what legal issues revolve around it?
Arguments
 Petitioner :
• A journalist and activist, Ms. Pinki Virani, filed a petition under Article 32 of the Indian
Constitution in Aruna Shanbaug vs Union of India, asserting that the Right to Life guaranteed
by Article 21 encompasses the Right to Die with dignity. She argued that individuals facing
terminal illnesses or permanent vegetative conditions should have the right to end their lives
with dignity, alleviating prolonged suffering.
• Ms. Virani contended in Aruna Shanbaug v Union of India that Aruna, the victim, lacked
consciousness, was unable to chew her food and had been bedridden for 36 years with no hope
of improvement. According to the petitioner, withholding food would not be killing Aruna but
helping her die peacefully.
 Respondent

• The hospital dean opposed euthanasia in Aruna Shanbaug v. Union of India, stating that
the hospital staff had been caring for Aruna’s basic needs for nearly 36 years and would
continue to do so willingly. The respondent emphasized Aruna’s age (60) and suggested
that she would naturally pass away in the future, making euthanasia unnecessary.
• The hospital staff had developed a close emotional bond with Aruna, with one member
willing to care for her without pay. They argued against legalizing passive euthanasia,
claiming it could be abused by family members, undermining societal kindness and
love.
• The respondent contended in Aruna Shanbaug vs Union of India that every individual
in the country has the Right to Life under Article 21 and euthanasia, by definition,
involves taking the life of a living being, making it immoral and inhuman. Additionally,
they raised the issue of consent, questioning who would provide consent on behalf of
Aruna, given her inability to express consent for withdrawal from life support.
Judgement
The Supreme Court of India observed that there is no provision in India which provides for
withdrawing life support from a person who is in a permanent vegetative state or is incompetent to
make decisions with respect to the same.
They agreed with the Petitioners and held that passive euthanasia must be permitted in certain
circumstances.
While dealing with the case, the Court observed that the parents of Ms. Aruna Shanbaug are dead
and her close relatives have not visited her since the assault took place.
The Court further held that in a case a decision regarding withdrawal of life support is taken, the
same has to be approved by the High Court of the concerned state.
The Court held the principle of parens patriea which implies that the king is the father of the
country. He is under the obligation to look into the interest of all those individuals who are not in the
state of looking after themselves.
 Judgement
• The Supreme Court of India, in this historic case allowed passive euthanasia in certain exceptional
circumstances.
• The Court further observed that when a application for passive euthanasia is filed before the High
Court, the Chief Justice of High Court should constitute a Bench of at least two Judges who should
decide on the basis of the circumstances whether to approve passive euthanasia or not. The Chief
Justice of the High Court must constitute a bench before which a committee of three reputable
doctors should be referred. A thorough examination of the patient should take place and the state
and family members must be given notice issued by the bench. The High Court is required to make
a speedy decision.
• The apex court in Aruna Shanbaug vs Union of India laid down specific procedures and guidelines
for granting passive euthanasia in the “rarest of rare circumstances,” rejecting the petitioner’s plea.
It clarified that decisions regarding the withdrawal of life support could be made by the High Court
under Article 226.
Ratio Decidendi
The apex court gave the following reasons for its judgment:

1. It is a well-settled principle all around the globe that passive euthanasia is illegal until and
unless there is legislation that is permitting the same and on the other hand passive euthanasia
is legal even without the legislation.

2. The Report presented by the expert panel of the doctor (under Section 45 of the Indian
Evidence Act) certifies that the patient is not brain dead and it was submitted in the report that
the patient expresses her likes and dislikes via small gestures and sounds, she smiles and blinks
and even responds to the outside environment and even to her surrounding as well.

3. The court was also of the opinion that due to a decrease in the ethical standard and increasing
corruption in society, there is a threat that can lead to the misuse of passive euthanasia and
which will result in the infringement of the Article 21 of the Constitution which Right to life
with utmost dignity. So, the court was of the opinion that the balanced approach should be
adopted in the sensitive issue where there is a matter of one's life and death.
 Ratio Decidendi
The apex court gave the following reasons for its judgment:

4. The bench was also of the opinion that Section 309 of IPC should be scraped out as they
believe a person undergoing depression committing suicide needs help and not punishment.

5. The High Court under Article 226[8] would be entitled to make decisions regarding the
withdrawal of the life support system. A bench must be constituted by the Chief Justice of
the High Court when an application is received, before which a committee of three reputed
doctors nominated must be referred. There should be a thorough examination of the patient
and state and family members are provided with a notice issued by the bench. The High
Court must give a speedy decision. Such a judgment has legalized passive euthanasia in
India under certain conditions that the High Court shall fix.
 Indian Young Lawyers Association v. The State of Kerala [Writ Petition (Civil) No. 373 of 2006]

Facts :
• In Kerala, there is a Hindu temple dedicated to Ayyappan named Sabarimala shrine. It is located in the Periyar
Tiger Reserve, in the ‘Pathanamthitta’ district of Kerala, at Sabarimala. The temple is one of Kerala’s most
prominent temples. However, women of menstruating age were forbidden from entering the Sabarimala shrine.
Bindu and Kanaka Durga in their early 40s sought to visit the hilltop shrine at 3:45 am, but were not able to do so
owing to threats of physical assault.
• In S. Mahendran vs. The Secretary, Travancore Devaswom Board, Thiruvananthapuram and Ors., the Kerala
High Court held that such a restriction did not violate the constitutional rights of women. It reaffirmed the
centuries-old restriction, ruling that only the priest had the authority to make decisions about customs and
traditions.
• A group of five women lawyers challenged this decision of the Kerala High Court before the Apex Court. It was
argued that Rule 3(b) of the Kerala Hindu Places of Worship (Authorization of Entry) Rules 1965, specifying
women are not permitted to enter a place of public worship during times when they are not permitted by custom
and usage, was an infringement of fundamental rights guaranteed under Articles 14, 15, and 25 of the Indian
Constitution.
 Issues :

1. Whether an exclusionary practice which was based upon a biological factor exclusive to the
female gender amounted to "discrimination" and thereby violated Articles 14, 15 and 17 without
being protected by “morality” as used in Articles 25 and 26 of the Constitution;

2. Whether the practice of excluding such women constituted an "essential religious practice" under
Article 25 and whether a religious institution could assert a claim in that regard under the
umbrella of right to manage its own affairs in the matters of religion;

3. Whether Ayyappa Temple had a denominational character and, if so, was it permissible on the
part of a 'religious denomination' managed by a statutory board and financed out of the
Consolidated Fund of Kerala and Tamil Nadu to violate constitutional morality; and

4. Whether Rule 3(b) of the KHPW Rules, 1965 was ultra vires the KHPW Act, 1965 and if treated
to be intra vires, whether it violated Part III of the Constitution.
 Arguments

Petitioners :
• Discrimination against women of a specific class was arbitrary under Article 14 as it was not a constitutional basis
to make a separate, excluded class of women between the ages of 10-50 years.
• The practice was violative of Article 15 as the practice is solely based on sex. Moreover, it was in violation of
Article 15(2) (b) as the temple was a public place.
• It is a violation of Article 17 which calls for the abolition of untouchability. The exclusion of women imposes a
stigma on them, implying that menstruation is impure. Since the menstruation period of women is not permanent,
prohibiting them permanently is a constitutional violation.
• Article 25 of the Constitution protects women’s right to enter temples as devotees for worship. The state cannot
abridge this right under the pretext of social reform or welfare Article 25 (2) (b).
• Due to the lack of a common faith or distinguishing name, Lord Ayyappa does not have a religious denomination or
sect under Article 26 of the Indian Constitution. Even if they establish a religious denomination, the ban on females
is not a fundamental religious practice.
 Respondents :
• The omission of women from the temple is not a breach of Article 15 because the temple excludes a
specific segment of society and not the entire class. All the devotees are known as Ayyappans and all-
female eligible devotees as Malikapurams.
• Rule 3(b) was not unconstitutional, as it did not deny entry to all women as a class, but merely to
women of a specific age group, for a specific objective. Moreover, the women are allowed to enter
another temple of Lord Ayyappa.
• The main object of Art 17 is to prohibit untouchability based on caste in the Hindu religion. And no
such untouchability based on caste or religion is exercised at the temple.
• The expression in article 25(2)(b) shows that there should be no discrimination on a caste basis. It
cannot be interpreted that the expression is meant to overlook the custom, which is an essential aspect
of religion.
 Judgement

• The Supreme Court, in a 4:1 verdict, held that the restrictions upon the entry of women between the ages of
10-50 into the Sabrimala shrine were unconstitutional and struck down Rule 3(b) of the KHPW Act. The
Court further passed directions to ensure the safety of women pilgrims entering the shrine.

• The majority held that the devotees of the Lord Ayyappa did not constitute a separate religious
denomination but were part of the Hindu fold, and that in the absence of any scriptural or textual evidence
justifying the same, exclusion of women could not be considered to be an essential religious practice. The
opinion also observed that Rule 3(b) was ultra vires the aim of the KHPW Act, which was to reform and
open public Hindu places to all people. The Court further declared that Rule 3(b) of the KHPW Rules was
unconstitutional for being violative of Part III of the Constitution of India.

• Justice D.Y. Chandrachud further observed that the social exclusion of women, based on physiological
attributes like menstrual status, was comparable to a form of untouchability, following notions of “purity
and pollution”, which served to stigmatize individuals, and could not be justified in the scheme of
constitutional morality, besides being explicitly prohibited under Article 17.
 Judgement

• With reference to the right to privacy, Justice D.Y. Chandrachud in his opinion, held that the menstrual status
of a woman would be an intrinsic part of her privacy. He further opined that imposing exclusionary
disabilities on the basis of menstrual status, violated the dignity of women which was guaranteed by the
Constitution.

• Justice I. Malhotra, in her dissenting opinion noted that the case should fail for lack of standing by the
Petitioners. She also held that Ayyappans or worshippers at the Sabarimala Temple satisfied the requirements
of being a religious denomination, and therefore could avail the protections of Article 26. She further held
that the limited restriction on the entry of women would not be violative of Part III of the Constitution.

• (After a review petition (Review Petition (Civil) No. 3358/2018 in Writ Petition (Civil) No. 373/2006) was
heard, this case was referred to a larger bench for adjudication. Chief Justice R. Gogoi, Justice A.M.
Khanwilkar and Justice I. Malhotra issued the majority opinion confirming, with Justice R.F. Nariman and
Justice D.Y. Chandrachud dissenting. A preliminary question was raised as to whether a reference to a larger
bench was maintainable in a review petition, which was answered in the affirmative by a nine Judge Bench
of the Court.)
 Ratio Decidendi
• Ratio In this case, the ratio decindi decided that the exclusionary practice of non-entry of women
is a violation of Articles 14,15,17,19, and 25 (1) of the constitution. Rule 3(b) of the Kerala Hindu
Public Worship (Authorisation of Entry Act, which banned the entry of women on the arbitrary
grounds of their menstrual cycle, was declared unconstitutional and thus struck out.
• The court held that Article 25 of the Indian constitution confers the Right to Religion to every
person irrespective of their gender or sex. Hence, this practice which restricts the women to enter
the temple violates their right to visit a public temple, to freely practice the Hindu religion and to
exhibit their devotion to Lord Ayyappa. Allowing women in the Sabarimala temple will not result
in any alteration or change in the fundamental concept of the Hindu religion.
• Justice Indu Malhotra was the only one to hold that the court should not intervene ordinarily in
matters of deep religious sentiments. In religious affairs, the notion of rationality should be
disregarded.