LIVE LAW JUDGMENTS

1. ABORTION RULINGS US v. INDIA

In India, unlike the United States, the legislature has sanctioned abortions under the
Medical Termination of Pregnancy Act, 1971 – albeit with conditions. In America,
however, the Supreme Court of the United States, in 1971, in the now overruled
decision of Roe[1], found that the right of a woman to have an abortion was
constitutionally protected under the Fourteenth Amendment. After almost half a
century, in June 2022, the SCOTUS overruled Roe and Casey as being "egregiously
wrong". The fundamental foundation of the majority opinion in Dobbs[7] was that there
was absolutely no basis for finding a right to abortion in the text of the constitution.
The right of abortion which was recognized by Roe, was taken away by Dobbs. In sharp
contrast was the decision of the SCI in X v. The Principal Secretary.
The SCI recognized that the right to reproductive autonomy was a sine qua non with
the right to bodily autonomy. The Court held that "the decision to carry the pregnancy
or terminate it is firmly rooted in the right to bodily autonomy and decisional autonomy
of the pregnant woman."[15] Expounding on bodily autonomy, the Court held that
"(t)he right to decisional autonomy also means that women may choose the course of
their lives. Besides physical consequences, unwanted pregnancies which women are
forced to carry to term may have cascading effects for the rest of her life by interrupting
her education, her career, or affecting her mental wellbeing."[16] The Court also
recognized the social stigma faced by an unwed pregnant woman and noted that "If
women with unwanted pregnancies are forced to carry their pregnancies to term, the
state would be stripping them of the right to determine the immediate and long-term
path their lives would take. Depriving women of autonomy not only over their bodies
but also over their lives would be an affront to their dignity. The right to choose for
oneself – be it as significant as choosing the course of one's life or as mundane as one's
day-to-day activities – forms a part of the right to dignity. It is this right which would
be under attack if women were forced to continue with unwanted pregnancies."[17] The
SCI also held that "the right of every woman to make reproductive choices without
undue interference from the state is central to the idea of human dignity."[18] The Court
even put an obligation on the State to ensure the dissemination of "information
regarding reproduction and safe sexual practices"[19], without which the right to bodily
autonomy and dignity could not be realized in full.
 X is closer in spirit to the dissent in Dobbs. The fundamental distinction between the
regressive decision in Dobbs – which took away a right recognized as fundamental for
half a century, and the progressive decision in X is that while the SCOTUS failed to
find the right to abortion in the text of the US Constitution or in the Fourteenth
Amendment enacted in 1868, the SCI has not only recognized the "right to equality and
equal protection" enjoyed by a pregnant woman, but also the right to bodily autonomy
and right of a pregnant woman – married or unmarried – to choose.

2. SAME DAY SENTENCING

Same-day sentencing contravenes an important procedural safeguard in capital
sentencing; i.e., the opportunity to collect and present sentencing-related evidence to
effectively argue against the punishment of death. If a court imposes the death sentence
without complying with this due process requirement, the only remedy available to an
appellate court is to commute the sentence to life imprisonment. S. 235(2), Code of
Criminal Procedure (CrPC) divides criminal trials into two stages: a hearing on
conviction and a separate hearing on sentencing.
In death penalty cases, S. 354(3), CrPC requires that judges give special reasons before
imposing a death sentence. This provision captures the legislature's intention to impose
death as an exceptional punishment only in the rarest of rare situations; and for the
lesser alternative of life imprisonment to be the sentencing norm. The sentencing
hearing under S. 235(2) supplements S. 354(3) in two ways: one, it gives the accused
an opportunity to explain why they do not deserve the exceptional punishment of death;
and two, it helps the court gather evidence to arrive at a just decision on
sentencing.[1] The special reasons required under S. 354(3) can only be recorded after
a meaningful sentencing hearing; where the accused is given a real and
effective opportunity to be heard.[2]
These procedural safeguards, i.e., a separate sentencing hearing and the need to give
special reasons for why the lesser alternative of life imprisonment is inadequate, saved
the death penalty for murder from the vice of unconstitutionality in Bachan
Singh v. Union of India (1980). The separate sentencing hearing guarantees fair, just,
and reasonable procedure that offers the convict an opportunity to defend
themselves.[3] It follows that the hearing cannot be a mere formality[4] – the convict
must be given a meaningful, real, and effective opportunity to oppose the death
sentence.[5] In 1976, Santa Singh v. State of Punjab held that a real and
effective opportunity means that the accused should be allowed to present all
information relevant to the question of sentence – as oral submissions, affidavits, or
otherwise. This information helps the court understand the personal, social, and other
circumstances of the case so that it can individualize sentencing.[6] It is not enough to
simply mention these circumstances in court. The defence must analyse this
information and connect it to relevant penological objectives, especially the convict's
probability of reform, in order to assist principled judicial reasoning.
Mitigation information relates to the circumstances of the convict, which invariably
requires an interdisciplinary examination of the convict's history, family, socio-
economic circumstances, behaviour, and psyche. To ensure that this exercise of
collecting this material is meaningful, the Supreme Court has deemed it necessary to
appoint social workers, mental health professionals, sociologists, and other experts as
part of the defence team.[8]
Recently in Manoj and Ors. v. State of Madhya Pradesh (2022), the Supreme Court
extended this burden to the state by mandating a jail conduct report, and psychiatric and
psychological evaluation reports of the convict. Thereby, placing the burden on the state
to prove that the convict cannot be reformed and rehabilitated. This means that while
the defence has a right to bring evidence on record, this evidence can come after and in
response to the state's arguments against the probability of reformation and
rehabilitation.
Same day sentencing problematic for four reasons :
A. One, same day sentencing does away with the due process safeguard of S. 235(2)
in death penalty cases.
B. Two, same day sentencing disadvantages the defence more than the prosecution.
For the prosecution, it is convenient to cite facts of the crime as aggravating
circumstances because this information is already on record as part of the case on
conviction. Having a sentencing hearing on the same day as conviction centres
aggravating circumstances of the crime in sentencing analysis – not only are they
fresh in the mind of the sentencing judge, but given the nature of crimes that are
punishable by death, they also demonstrate the brutality of the crime. Thus
in Manoj (supra), the Supreme Court recognised that aggravating circumstances
seem "far more compelling, or overwhelming" in the absence of well-documented
mitigating circumstances at the trial level, which causes the sentencing court to be
prone to imposing the death penalty. The lack of an opportunity to place mitigating
 circumstances on record "places the convict at a hopeless disadvantage, tilting the
scales heavily against him." By denying time to collect additional evidence and
being expected to make sentencing submissions on the same day, the defence is
forced to make submissions primarily on the basis of the evidence on record, or
make stock submissions that do not relate to the unique circumstances of the
accused.
C. Three, the lesser sentence of life imprisonment can only be said to be foreclosed
when the court has found that the convict is unlikely to reform and be
rehabilitated. Bachan Singh (supra) and more recently, Manoj (supra), place the
primary burden of disproving this on the state. The accused should be given an
opportunity to collect and lead evidence in rebuttal, towards demonstrating the
convict's probability of reform. This analysis is only possible after conviction is
recorded and the state has, by evidence, proved that reformation is unachievable.
D. The safeguards in S. 235(2) and S. 354(3) are not just part of an individual's right
to be heard before being sentenced, but are also part of the due process to be
followed by courts before imposing the death penalty.

3. ABORTION RIGHTS (MEDICAL TERMINATION OF PREGNANCY ACT)

X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of
Delhi (Justices DY Chandrachud, A.S. Bopanna and J.B. Pardiwala )
The Supreme Court observed that a woman who seeks legal abortion cannot be required
to seek consent from her family. It is only the woman's consent (or her guardian's
consent if she is a minor or mentally ill) which is material.
A woman can become pregnant by choice irrespective of her marital status. In case the
pregnancy is wanted, it is equally shared by both the partners. However, in case of an
unwanted or incidental pregnancy, the burden invariably falls on the pregnant woman
affecting her mental and physical health. Article 21 of the Constitution recognizes and
protects the right of a woman to undergo termination of pregnancy if her mental or
physical health is at stake. Importantly, it is the woman alone who has the right over
her body and is the ultimate decisionmaker on the question of whether she wants to
undergo an abortion. The decision to have or not to have an abortion is borne out of
complicated life circumstances, which only the woman can choose on her own terms
without external interference or influence. Reproductive autonomy requires that
every pregnant woman has the intrinsic right to choose to undergo or not to undergo
abortion without any consent or authorization from a third party.

The SC called for a harmonious reading of the Medical Termination of Pregnancy

(MTP) Act and the POCSO Act and held that a registered medical practitioner was
exempt from disclosing the identity and other personal details of a minor in the
information provided under Section 19 of the POCSO Act.
The Court took note of the fact that adolescents do engage in sexual activities, although
the POCSO Act does not recognize consent.
For context, Section 19 of the POCSO Act, 2012 makes it mandatory for any person
including the child to approach the police in case of the said person has an apprehension
that an offence under the Act is likely to be committed or has the knowledge that such
an act has been committed. The information is required to be provided to the Special
Juvenile Unit or the local police. A person who fails to report the offence can be
punished with a maximum imprisonment of six months or with fine or both under
Section 21 of the POCSO Act.
The Court noted that an adolescent and her guardian may be wary of the mandatory
reporting requirement as they may not want to entangle themselves with the legal
process. This can make them approach an unqualified doctor for a medical termination
of the pregnancy.
"If there is an insistence on the disclosure of the name of the minor in the report under
Section 19(1) of POCSO, minors may be less likely to seek out Registered Medical
Practitioners(RMPs) for safe termination of their pregnancies under the MTP Act", the
Court observed.
In the context of medical termination of pregnancy for minors, the bench led by Justice
DY Chandrachud opined–
"To ensure that the benefit of Rule 3B(b) is extended to all women under 18 years of
age who engage in consensual sexual activity, it is necessary to harmoniously read both
the POCSO Act and the MTP Act. For the limited purposes of providing medical
termination of pregnancy in terms of the MTP Act, we clarify that the RMP, only on
request of the minor and the guardian of the minor, need not disclose the identity and
other personal details of the minor in the information provided under Section 19(1)
of the POCSO Act. The RMP who has provided information under Section 19(1) of
the POCSO Act (in reference to a minor seeking medical termination of a pregnancy
under the MTP Act) is also exempt from disclosing the minor's identity in any
criminal proceedings which may follow from the RMP's report under Section 19(1)
of the POCSO Act. Such an interpretation would prevent any conflict between the
statutory obligation of the RMP to mandatorily report the offence under the POCSO
Act and the rights of privacy and reproductive autonomy of the minor under Article 21
of the Constitution. It could not possibly be the legislature's intent to deprive minors of
safe abortions".
The bench stated that it was important for RMPs to be exempted from disclosing the
identity of the minor as–
"Such an interpretation would prevent any conflict between the statutory obligations of
the RMP to mandatorily report the offence under the POCSO Act and the rights of
privacy and reproductive autonomy of the minor under Article 21 of the Constitution.
It could not possibly be the legislation's intent to deprive the minor of safe abortion."
"As opposed to consensual sexual activity among adolescents, minors are often
subjected to sexual abuse by strangers or family members. In such cases, minor girls
may (due to their tender age) be unaware of the nature of abuse the abuser or rapist is
subjecting them to. In such cases, the guardian of minor girls may belatedly discover
the fact of the pregnancy, necessitating the leeway granted by Rule 3B".

The Court held that wives, who conceived out of forced sex by their husbands, will also
come within the ambit of "survivors of sexual assault or rape or incest" mentioned in
Rule 3B(a) of the Medical Termination of Pregnancy Rules. For context, Rule 3B(a)
mentions the categories of women who can seek termination of pregnancy in the term
of 20-24 weeks.
"Married women may also form the part of the class of survivors of sexual assault or
rape. The ordinary meaning of the word rape is sexual intercourse with a person
without consent or against their will. Regardless of whether such forced intercourse
occurs in the context of matrimony, a woman may become pregnant as a result of non-
consensual sexual intercourse performed upon her by her husband."
The court further referred to violence in matrimonial setting being the harsh reality and
stated–
"We would be remiss in not recognising that intimate partner violence is the reality and
can take the form of rape. The misconception that strangers are exclusively or almost
exclusively responsible for sex and gender based violence is a deeply regrettable one.
Sex and gender based violence in all its form in the context of family has long formed
a part of the lived experiences of women."
While further elaborating upon the exception of marital rape in IPC and its effect on
the MTP Act, the bench stated–
"We have also briefly touched upon the Exception 2 of Section 375 of IPC.
Notwithstanding Exception 2 to Section 375 of IPC, the meaning of the word "sexual
assault" or "rape" in Rule 3B(a) includes the husband's act of sexual assault or rape
committed on his wife."
However, the bench clarified that including marital rape within the meaning of rape
was solely to be done for the purpose of the MTP Act. The court stated–
"The meaning of rape must therefore be understood as including marital rape solely
for the purpose of the MTP Act and any other rules and regulations framed thereunder.
Any other interpretation would have the effect of compelling a woman to give birth to
and raise a child with a partner who inflicts mental and physical harm upon her."
"It is not inconceivable that married women become pregnant as a result of their
husbands having "raped" them. The nature of sexual violence and the contours of
consent do not undergo a transformation when one decides to marry. The institution of
marriage does not influence the answer to the question of whether a woman has
consented to sexual relations. If the woman is in an abusive relationship, she may face
great difficulty in accessing medical resources or consulting doctors"
The court also held that a woman need not prove the commission of rape or sexual
assault to seek termination of pregnancy under the MTP Act. The bench opined–
"In order to avail the benefits of Rule 3(b)(a) the women may not necessarily seek
recourse to formal legal proceedings to prove the factum of sexual assault or rape.
Neither explanation 2 to Section 3(2), nor Rule 3(b)(a) requires the offender be
convicted under the IPC or any other criminal law for the time being in force before
the pregnant women can access an abortion. Further there is no requirement that the
instance may be registered or the allegation of rape may be proved before a court of
law or some other forum before it can be construed true for the purpose of the MTP
Act. Such a requirement would be in conflict with the purpose of the MTP Act. In fact
explanation 2, triggers the legal presumption as to mental trauma where any pregnancy
is alleged by the pregnant woman to have been forced by rape."
 The Court ruled that exclusion of unmarried women who conceive out of live-in
relationship from the Medical Termination of Pregnancy Rules is unconstitutional. If
Rule 3B(c) is understood as only for married women, it would perpetuate the stereotype
that only married women indulge in sexual activities.This is not constitutionally
sustainable.The artificial distinction between married and unmarried women cannot be
sustained. Women must have autonomy to have free exercise of these rights. The object
of section 3(2)(b) of the MTP Act is in allowing woman to undergo abortion after 20-
24 weeks. Therefore, including only married and excluding unmarried woman will be
violative of Article 14 of the Constitution. The foetus relies on the woman's body to
sustain. Therefore, the decision to terminate is firmly rooted in their right of bodily
autonomy. If the State forces a woman to carry an unwanted pregnancy to the full term,
it will amount to an affront to her dignity.

4. Speaker Can't Deny Pension & Other Benefits To MLAs While Disqualifying
Them Under 10th Schedule.

5. CrPC S.313

A. Section 313 CrPC confers a valuable right upon an accused to establish his innocence
and can well be considered beyond a statutory right, as a constitutional right to a fair
trial under Article 21 of the Constitution.
B. The purpose of Section 313 CrPC is to provide the accused a reasonable opportunity to
explain the adverse circumstances which have emerged against him during the course
of trial. A reasonable opportunity entails putting all the adverse evidences in the form
of questions so as to give an opportunity to the accused to articulate his defence and
give his explanation.
C. If all the circumstances are bundled together and a single opportunity is provided
to the accused to explain himself, he may not able to put forth a rational and
intelligible explanation. Such, exercises which defeats fair opportunity are nothing
but empty formality. Non fulfilment of the true spirit of Section 313 may ultimately
cause grave prejudice to the accused and the Court may not have the benefit of all the
necessary facts and circumstances to arrive at a fair conclusion. Such an omission does
not ipso facto vitiate the trial, unless the accused fails to prove that grave prejudice has
been caused to him.
D. The object of Section 313 of the Code is to establish a direct dialogue between the court
and the accused.

E. It is the solemn duty of the courts below to consider the defence of the accused. The
same must be considered with caution and must be scrutinised by application of mind
by the judge. The Court may accept or reject the same, however it cannot be done
cursorily. The reasoning and the application of mind must be reflected in writing.

6. ARREST NOT BE USED AS A PUNITIVE TOOL

(Mohammed Zubair vs State of NCT of Delhi and others)
Police officers have a duty to apply their mind to the case before them and ensure that
the condition(s) in Section 41 are met before they conduct an arrest", the judgment
stated. The Court reiterated the guidelines for arrest laid down in the 2014 case Arnesh
Kumar vs State of Bihar.
"Arrest is not meant to be and must not be used as a punitive tool because it results in
one of the gravest possible consequences emanating from criminal law: the loss of
personal liberty. Individuals must not be punished solely on the basis of allegations,
and without a fair trial. When the power to arrest is exercised without application of
mind and without due regard to the law, it amounts to an abuse of power. The criminal
law and its processes ought not to be instrumentalized as a tool of harassment. Section
41 of the CrPC as well as the safeguards in criminal law exist in recognition of the
reality that any criminal proceeding almost inevitably involves the might of the state,
with unlimited resources at its disposal, against a lone individual".
Bail conditions must be proportionate
The Court also categorically refused to impose a bail condition that Zubair should not
post tweets.
"The bail conditions imposed by the Court must not only have a nexus to the purpose
that they seek to serve but must also be proportional to the purpose of imposing them.
The courts while imposing bail conditions must balance the liberty of the accused and
the necessity of a fair trial. While doing so, conditions that would result in the
deprivation of rights and liberties must be eschewed", the judgment stated.
"Merely because the complaints filed against the petitioner arise from posts that were
made by him on a social media platform, a blanket anticipatory order preventing him
from tweeting cannot be made. A blanket order directing the petitioner to not express
his opinion - an opinion that he is rightfully entitled to hold as an active participating
 citizen - would be disproportionate to the purpose of imposing conditions on bail. The
imposition of such a condition would tantamount to a gag order against the petitioner.
Gag orders have a chilling effect on the freedom of speech. According to the petitioner,
he is a journalist who is the co-founder of a fact checking website and he uses Twitter
as a medium of communication to dispel false news and misinformation in this age of
morphed images, clickbait, and tailored videos. Passing an order restricting him from
posting on social media would amount to an unjustified violation of the freedom of
speech and expression, and the freedom to practice his profession", the Court added.

7. CANNOT BE DETAINED AFTER THE ORDER OF RELEASE

• We are not oblivious of the fact that the appellant herein was held guilty in a grave
offence. But then, when a competent court, upon conviction, sentenced an accused
and in appeal, the sentence was modified upon confirmation of the conviction and
then the appellate judgment had become final, the convict can be detained only up to
the period to which he can be legally detained on the basis of the said appellate
judgment. When such a convict is detained beyond the actual release date it would be
imprisonment or detention sans sanction of law and would thus, violate not only
Article 19(d)but also Article 21 of the Constitution of India. This is what was suffered
by the appellant for a very long period.

• Considering the fact that the appellant is a youth, this long and illegal imprisonment
beyond the period of sentence, taking into account the long and illegal deprivation of
the right to move freely and thereby, the violation of right under Article 19 (d) of the
Constitution of India, the violation of right to life and personal liberty under Article 21
of the Constitution of India and the mental agony and pain caused due to such extra,
illegal detention, we are of the view that the appellant is entitled to be compensated in
terms of money"

The fact that these violations remain unaddressed for lack of substantive remedies with no
accountability being fixed, is responsible for victims continuing to fall prey to gross abuse
of police powers. The question which then arises is, under the existing framework, what
remedy can be provided to them?
Constitutional Courts in India have fostered a case for compensation of these victims.
Wrongful convictions arising out of malicious prosecutions may be by making or framing
a false or incorrect record or document for submission in a judicial proceeding, fabricating
false evidence, by destruction of evidence, by bringing false charge making a false
declaration or statement etc. Wrongful convictions so arising must entitle the victim to
claim compensation.
The early approach of the Supreme Court in awarding compensation to victims of police
atrocities as a public law remedy under Article 21. One of the first cases where the Supreme
Court dealt with the issue of compensation for violations of life and liberty under Article
21 was in the infamous Bhagalpur blinding case of Khatri & Ors. v. State of Bihar &
Ors. (AIR 1981 SC 928). The Court directed the state to meet the medical expenses of the
victims. In Rudal Sah v. State of Bihar (AIR 1983 SC 1086), the Supreme Court while
exercising its power under Article 32, ordered the Bihar government to pay ₹30,000 for
detaining the petitioner for fourteen years after his acquittal. The then Chief Justice, Y.V.
Chandrachud, CJ, speaking for a Bench of three learned Judges of the Supreme Court had
observed that, "One of the telling ways in which the violation of that right can reasonably
be prevented and due compliance with the mandate of Article 21 secured, is to mulct its
violators in the payment of monetary compensation." More recently, in the matter of S.
Nambi Narayanan V. Sibi Mathews (2018) 10 SCC 804 (ISRO espionage matter), the
Supreme Court awarded a compensation of Rupees Fifty Lacs for the petitioners illegal
arrest and custodial torture.

Article 9(5) of The International Covenant of Civil and Political Rights (ICCPR), to
which India is a signatory and has also ratified it, specifically provides that "Anyone who
has been the victim of unlawful arrest or detention shall have an enforceable right to
compensation." Article 14(6) of the ICCPR also provides that "When a person has by a
final decision been convicted of a criminal offence and when subsequently his conviction
has been reversed or he has been pardoned on the ground that a new or newly discovered
fact shows conclusively that there has been a miscarriage of justice, the person who has
suffered punishment as a result of such conviction shall be compensated according to law,
unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly
attributable to him."
Conspicuously, India has no victim centric legislation. Under the present statutory regime,
barring provisions under u/Ss 250 and 358 CrPC, it is only a 'victim' who can claim
compensation u/s 357A CrPC. The term 'victim' is narrowly defined in S.2 (wa) CrPC. This
definition does not include those who are victims of wrongful convictions etc. and who get
acquitted and released after languishing in prison for years, thus disentitling them to any
statutory compensation under these provisions.

It is notable that several countries such as UK , Germany, USA ,Canada have developed
their statutory frameworks to address similar miscarriages of justice. These laws
compensate victims of wrongful conviction by providing them with pecuniary and
nonpecuniary assistance. In India, The Law Commission in its 277th Report published in
2018, titled 'Wrongful Prosecution (Miscarriage of Justice): Legal Remedies' had
recommended the insertion of a new Chapter in the CrPC to provide for a mechanism for
adjudication of claims of wrongful prosecutions and payment of compensation to victims
by State misdemeanours. It also recommended the insertion of a provision for providing
monetary compensation and nonpecuniary assistance to the victims. However, the
recommendations are yet to be acted upon.

That the Supreme Court cannot legislate is well established. However, in the landmark case
of Vishakha V. State of Rajasthan (1997) 6 SCC 241, the Supreme Court in the absence
of any enacted law which could provide for remedies available against violation of
fundamental rights -sexual harassment and abuse in that case, laid down enforceable
guidelines in exercise of jurisdiction under Article 32. These guidelines were declared law
under Article 141. This approach has been followed by the Supreme Court in several cases
thereafter.

The malaise highlighted above makes valid ground for devising such guidelines. The
guidelines so declared could include grant of pecuniary compensation based on an
empirical formula for example as in case of MACT compensations. Factors like the age of
the victim, the period of incarceration or lost years, the loss of livelihood and its prospects
etc. may form the yardstick of calculating the quantum of compensation payable.
Establishment of a dedicated Rehabilitation Board which could provide for educational
fora, vocational training, counselling, steps for reintegration of the victim and its family in
society, providing employment avenues/exchanges etc. could also be considered.
The indelible damage to the reputation of the victim of wrongful conviction and its family
remains to be a matter of grave concern. The restoration of reputation and dignity i.e. an
Article 21 right is of utmost importance. In this connection, the issuance of a 'statement of
innocence' or a public apology by the state, as is followed in New Zealand, becomes crucial
to undo the stigma and ostracization suffered by the victim and its family could be
considered.

8. HIJAB CONTROVERSY
The recent judgment of the supreme court in Aishat shifa v. State of Karnataka was
a split verdict with the two judges holding different views :
• Justice Sudhanshu Dhulia, while proposing to overturn the controversial ban
on the hijab in government colleges in Karnataka, held that the doctrine of
essential religious practice did not have to be invoked at all to put the matter to
rest. This was simply a question of Article 19(1)(a), its applicability, and Article
25(1) primarily. And it's ultimately a matter of choice. Nothing more, nothing
less. The examination of the custom of wearing the hijab in the context of the
doctrine of essential religious practice, Justice Dhulia opined, was wholly
redundant. Instead of "straightaway taking the ERP route as a threshold
requirement", the High Court should have first examined whether the restriction
imposed on wearing the garment was valid, or whether it was hit by the doctrine
of proportionality, Justice Dhulia observed. He explained that Article
25(1) would insure not only essential religious practices but any religious
practice against encroachment, so long as it did not violate "public order,
morality and health" and was subject to the other provisions in Part III – "When
protection is sought under Article 25(1) of the Constitution of India, as is being
done in the present case, it is not required for an individual to establish that
what he or she asserts is an ERP. It may simply be any religious practice, a
matter of faith or conscience!" Further, he acknowledged that the present case
was different because the question was "not merely of religious practice or
identity", but also of freedom of expression enshrined in Article 19(1)(a). This
is what "made the case different", Justice Dhulia pointed out. He drew a stark
contrast between the present issue and landmark cases in which the apex court
had tried to answer whether certain practices could be termed essential religious
 practices (such as the Shirur Mutt case). We are concerned only with Article
25(1) and not with Article 25(2) or Article 26. Whereas Clause 1 of Article 25
deals with individual rights, Article 25(2) and Article 26, deal by and large with
community-based rights…Additionally, we must deal with the Fundamental
Rights given to an individual under Article 19(1)(a) and its interplay
with Article 25(1). In that sense what has been decided by this Court earlier as
ERP would not be of much help to us. For this reason, the entire exercise done
by the Karnataka High Court, in evaluating the rights of the Petitioners only on
the touchstone of ERP, was incorrect". By asking the girls to take off their hijab
before they enter the school gates, is first an invasion on their privacy, then it
is an attack on their dignity, and then ultimately it is a denial to them of secular
education. These are clearly violative of Article 19(1)(a), Article 21 and Article
25(1) of the Constitution of India", Justice Dhulia observed. "All the Petitioners
want is to wear a hijab! Is it too much to ask in a democracy? How is it against
public order, morality or health or even decency or against any other provision
of Part III of the Constitution. These questions have not been sufficiently
answered in the Karnataka High Court Judgement"
• Justice Hemant Gupta's view is that the Preambular goal of justice, liberty,
equality or fraternity would be better served by removing any religious
differences, inequalities and treating students alike before they attain the age of
adulthood. The emphasis of Justice Gupta is on homogeneity when he says
"uniform fosters a sense of 'equality' amongst students" and that "if the students
of one faith insist on a particular dress...it would not be conducive to the pious
atmosphere of the school". Constitutional goals such as secularism, fraternity,
dignity mean equality for all, preference to none. The accommodation sought is
contrary to spirit of Article 14 as it would result in different treatment of
students in secular schools who may be following varied religious beliefs. The
essential religious practices of the followers of Sikh faith cannot be made basis
of wearing of hijab/headscarf by the believers of Islamic faith, Justice Hemant
Gupta observed in his judgment. The claim of the appellants is not to perform a
religious activity in a religious institution but to wear headscarf in public place
as a matter of social conduct expected from the believers of the faith. But in the
present, the students want to subjugate their freedom of choice of dress to be
regulated by religion than by the State while they are in fact students of a state
school. The equality before law is to treat all citizens equally, irrespective of
caste, creed, sex or place of birth. Such equality cannot be breached by the State
on the basis of religious faith. The practice of wearing of hijab may be a
'religious practice' or an 'essential religious practice' or it may be social conduct
for the women of Islamic faith. The interpretations by the believers of the faith
about wearing of headscarf is the belief or faith of an individual. The religious
belief cannot be carried to a secular school maintained out of State funds. It is
open to the students to carry their faith in a school which permits them to wear
Hijab or any other mark, may be tilak, which can be identified to a person
holding a particular religious belief but the State is within its jurisdiction to
direct that the apparent symbols of religious beliefs cannot be carried to school
maintained by the State from the State funds. The object of the Government
Order was to ensure that there is parity amongst the students in terms of uniform.
It was only to promote uniformity and encourage a secular environment in the
schools. This is in tune with the right guaranteed under Article 14 of the
Constitution. Hence, restrictions on freedom of religion and conscience have to
be read conjointly along with other provisions of Part III as laid down under the
restrictions of Article 25(1). I do not find that the Government Order takes away
any right of a student available to her under Article 21 of the Constitution, or
that it contemplates any barter of fundamental rights. The right to education
under Article 21 continues to be available but it is the choice of the student to
avail such right or not. The student is not expected to put a condition, that unless
she is permitted to come to a secular school wearing a headscarf, she would not
attend the school. The decision is of the student and not of school when the
student opts not to adhere to the uniform rules. The State has not denied
admission to the students from attending classes. If they choose not to attend
classes due to the uniform that has been prescribed, it is a voluntary act of such
students and cannot be said to be in violation of Article 29 by the State. It is not
a denial of rights by the State but instead a voluntary act of the students. It would
thus not amount to denial of right to education if a student, by choice, does not
attend the school. A student, thus, cannot claim the right to wear a headscarf to
a secular school as a matter of right. The Government Order cannot be said to
be contrary to the State goal of promoting literacy and education as mandated
under the Constitution. The Government Order only ensures that the uniform
 prescribed is adhered to by the students and it cannot be said that State is
restricting the access to education to the girl students through such an Order.

Though the Supreme Court delivered a split verdict in Hijab ban case, both the
judges of the bench did not decide the question whether the wearing of hijab is
considered as an essential religious practice. The Karnataka High Court had held
that hijab was not an essential religious practice of Islam and hence the petitioners
could not claim protection under Article 25 of the Constitution.

NOTE :

What affects public order is contextual and is determined by the state. But courts have
broadly interpreted it to mean something that affects the community at large and not a
few individuals.

In Ram Manohar Lohia vs State of Bihar (1965), the Supreme Court held that in the
case of ‘public order’, the community or the public at large have to be affected by a
particular action. “The contravention of law always affects order but before it can be
said to affect public order, it must affect the community or the public at large.

9. PMLA VERDICT
Vijay Madanlal Chaudhry V. Union Of India
The Court has unanimously upheld the validity of all the impugned provisions of the
Prevention of Money Laundering Act, 2002 ("the Act"), including inter alia, finding
that Enforcement Directorate ("ED") officers are not police officers, copies of
Enforcement Case Information Report ("ECIR") need not be given to the accused, the
twin-test for bail is constitutional, and that projecting proceeds of crime as untainted is
not an essential ingredient of money laundering.
CRITICISM :
• The Supreme Court has held that the ingredient of "projecting or claiming" the
proceeds of crime as untainted property is not necessary for the offence of
money laundering under the Act.[21] Consequently, any person who is merely
in possession of proceeds of crime without any knowledge of the same or any
involvement in the criminal enterprise can be prosecuted under the Act. This
 understanding, combined with the presumption under Section 24 of the Act
(presumption that such proceeds of crime are involved in money-laundering)
may completely overturn the fundamental principle of presumption of
innocence in criminal law. By this account, even a lawyer who has been paid
professional fees by his Client and has received tainted money unawares can be
now held liable for the offence of money laundering under the Act.
• The Judgment has found that ED officers are not police officers; A copy of the
ECIR need not be given to the accused by ED; Statement given to the ED by an
accused can be used against them; Criminal Procedure Code, 1973 ("CrPC")
does not apply till the stage of arrest. These findings, apart from perhaps having
challengeable legal premises, also have grave ramifications upon the
constitutional rights of an accused. Firstly, permitting a practice of using
statements of accused against them by a prosecutorial agency may militate
against the fundamental protection against self-incrimination in criminal law, as
enshrined in the Indian Constitution and as expounded in various landmark
judgments such as Selvi, Kathi Kalu Oghad and Nandini Satpathy. Secondly, it
is pertinent to mention that under Section 91 of the CrPC, it is open for a person
to refuse to answer on the ground that the answers may potentially incriminate
them. However, no such refusal can be given by any person to the ED upon
receiving summons, and the Act specifically makes a refusal to answer or to
sign the statement recorded by ED as a punishable offence. It is not out of place
to mention that the march of law in India has reflected a general distrust of
confessions before police officers in India, and both by virtue of statute as well
as judicial precedent, and at present, extra-judicial confessions given by an
accused are not admissible as evidence. There are exceptions to this rule, no
doubt, but those are carved by specific statutes such as the Customs Act, which
are significantly different from ED in scope and functioning.
Further, the Judgment held that the ED is not bound to provide the accused a
copy of the ECIR, on the ground that the ECIR is only an internal document and
its disclosure may prejudice the investigation. At the same time, the Judgment
also upholds the onerous twin test for bail, whereunder the accused would be
required to show that they are not guilty of the offence. This may be heralded
as an unfair result, because for a person who is unaware of the contents of the
ECIR, it is nearly impossible to prove that they did not commit the offence
 specified in the ECIR. In this regard, the Judgment can also be challenged for
being opposed to a basic tenet of natural justice i.e., "audi alteram partem". In
fact, the Supreme Court in its own earlier judgment in Youth Bar Association
v. Union of India, has conclusively held that an accused is entitled to obtain a
copy of the FIR under the CrPC.
Furthermore, the Judgment also holds that none of the protections under the
CrPC would be extended to the accused till the arrest. In holding so, the
judgment provides sparse justifications for creating a new legal framework for
pre-arrest situations. Moreover, the Judgment materially ignores Section 65 of
the Act, which says that CrPC shall apply to all stages including the arrest,
search, seizure, attachment, confiscation, investigation and prosecution, in so
far as it does not conflict with the Act. In this background, the Judgment's
finding that ED officers are not police officers suffers from material vice, and
is also inconsistent with the reading of Section 45(1A) of the Act which permits
a police officer to investigate an offence under the Act. Thus, there is an
anomalous situation created whereby the police office empowered under
Section 45(1A) (and carrying out the functions of the ED) would amount to a
police officer, whereas the other ED officers would not.
• One aspect of the Judgment which has received the most criticism is its stance
on section 45 of the Act. Section 45 comprises the twin conditions for granting
bail, namely, that there are reasonable grounds for believing that the accused is
not guilty of such offence, and that they are not likely to commit any offence
while on bail.
The said twin test had been earlier held to be unconstitutional in Nikesh
Tarachand Shah v. Union of India which was given by a division bench of
the Supreme Court, for being manifestly arbitrary, discriminatory, and invalid.
However, the Judgment in Vijay Madanlal, in the course of its findings, has
effectively overruled Nikesh Tarachand Shah, and reinstated the twin
conditions.
While it has been argued that such onerous twin conditions also exist in other
laws, it is material to note that firstly, the said other statutes referred to are vastly
more serious in import and impact, for instance, TADA, POTA, UAPA, NDPS
Act etc. Many of these offences involve the loss of life and limb, and are usually
related to terror. Thus, it may be argued that importing their onerous twin test
 for a financial crime of much lesser punishment, is not reasonable or fair.
Secondly, it may also be noted that in these other statutes, there still remain
some constitutional and CrPC protections (albeit limited), unlike under the Act,
where the accused would not even have a copy of the ECIR and would only find
out of the grounds of arrest upon actual arrest. Moreover, the Judgment has gone
a step further and found that the twin test also applies to anticipatory bail. Yet,
how a person is to argue that they are not guilty of an offence, even before there
exists any ECIR which identifies the said offence, confounds all logic.
• Lastly, it is pertinent to mention another issue on which the Supreme Court
issued notice- the reversal of presumption of innocence. This aspect pertains to
Section 24 of the Act, which requires that whenever a person is charged with an
offence under the Act, the Court or Authority shall presume that the proceeds
of crime were involved in money laundering. The said provision reverses the
ordinary burden of proof in a criminal trial, which rests upon the prosecution to
prove the offence was committed beyond reasonable doubt, to the accused, who
shall have to prove the converse. To be clear, such reversals also exist in other
special laws (for instance, the Negotiable Instruments Act), however, the
fairness of each must be adjudicated on the anvil of the subject matter of each
legislation. The difficulty with providing for such a reversal in case of PMLA
is that for an innocent person, it is almost impossible to prove or to lead evidence
that the money/assets in question were not laundered. For instance, take the case
of the lawyer who innocently received fees which were alleged to be tainted and
proceeds of crime. In the trial, the said lawyer would have to provide evidence
to show that the money was not, in fact, proceeds of crime, something which is
well beyond his knowledge and competence to prove.

10. BILKIS BANO MATTER

The remission was granted by Gujarat Govt. to the convicts citing 1992 policy
regarding remission of sentence.
The whole controversy revolves around two questions :
A. Who was the appropriate government to grant remission ?
Section 432 crpc deals with power to suspend or remit sentences. The 'appropriate
Government' has the power to unconditionally or by imposing conditions accepted
by the convict, suspend execution of their sentence or remit the whole or any part
of the punishment imposed on them. By way of Section 433 power is conferred on
the 'appropriate Government' to commute sentences of death, life imprisonment,
rigorous imprisonment and simple imprisonment. Sub-section (7) of Section 432
CrPC delineates the meaning of the expression, 'appropriate Government'
applicable to both Sections 432 and 433, as under –
• in cases where the sentence is for an offence against, or the order referred to in
sub-section (6) is passed, any law relating to a matter to which the executive
power of the Union extends, the Central Government;
• in other cases, the Government of the State within which the offender is
sentenced or the said order is passed.

Article 73(1) of the Constitution of India, 1950, which deals with the extent of
the executive power of the Union and reads as under –

(1) Subject to the provisions of this Constitution, the executive power of the Union
shall extend - to the matters with respect to which Parliament has power to make
laws; and to the exercise of such rights, authority and justification as are exercisable
by the Government of India by virtue of any treaty or agreement:

Provided that the executive power referred to in sub-clause (a) shall not, save as
expressly provided in this Constitution or in any law made by Parliament, extend
in any State to matters with respect to which the Legislature of the State has also
power to make laws.

In this regard it would be relevant to have a look at Article 162 of the Constitution
which contemplates the extent of executive power of the State. It reads as under -
Subject to the provisions of the Constitution, the executive power of the State shall
extend to the matters with respect to which the Legislature of the State has power
to make laws:

Provided that in any matter with respect to which the Legislature of a State and
Parliament have power to make laws, the executive power of the State shall be
subject to, and limited by, the executive power expressly conferred by this
Constitution or by any law made by the Parliament upon the Union or authorities
thereof.

Ascertaining the 'Appropriate Government' - Sriharan's Judgment

In order to determine whether the Union or the State Government would be the
'appropriate Government' to grant remission or commute sentence, what needs to
be really looked at is the law under which the sentence was imposed.

As per Section 432(7)(a), if the Parliament has the exclusive power to enact the
law under which the sentence to be remitted/suspended/commuted is imposed, then
the executive power of the Union would extend to it and the Central Government
would be the appropriate Government;

Barring the cases that fall under Section 432(7)(a), in all other cases where the
convict is sentenced or the sentence order is passed within the territorial
jurisdiction of the concerned State, then the State would be the appropriate
Government.

The specification with respect to the 'territorial jurisdiction of the concerned State'
where the convict is sentenced aids in determining the appropriate State
Government when the offence is committed in multiple States or in a different State
than the one where the sentence is imposed on the accused. For example: If offence
is committed in State A and trial is held and sentence is passed in State B, then
the Government of State B would be the appropriate Government.

If both the Parliament and the State Legislature have the power to enact the law
under which sentence is imposed, and in terms of Article 73(1), the Constitution or
any enactment of the Parliament expressly reserves the power to extend executive
power in favour of the Union, then by virtue of Section 432(7)(a) CrPC the Central
Government would be the appropriate Government;

The instances wherein the Central Government would have primacy -

If the sentence was imposed under TADA or any other Central legislation, the
executive power of the Union alone would apply and the Central Government
would be the appropriate Government and when the Constitution expressly reserved
executive power in favour of the Union.

NOTE : NATURE OF OFFENCES UNDER IPC ?

G.V. Ramanaiah (supra), the Apex Court had held that though the Code falls under
the ambit of the Concurrent list, the various provisions of the Code may relate to
 Union or the State lists of the Seventh Schedule. Accordingly, the appropriate
Government would be identified under Section 432(7) CrPC.

"...The Indian Penal Code is a compilation of penal laws, providing for offences
relating to a variety of matters, which are referable to the various Entries in the
different Lists of the 7th Schedule of the Constitution. Many of the offences in the
Penal Code relate to matters, which are specifically covered by the Entries in the
Union List. Examples of such offences are to be found in Chapter VII, offences
relating to the Army, Navy and Air Force; Chapter IX-A, offences relating to
Elections; Chapter XII, offences relating to coin and Government stamps; Chapter
XIII, offences relating to Weights and Measures; and the bunch of sections 489-A
to 489-E, offences relating to Currency-Notes and Bank-Notes, which are referable
to Entries Nos. 4, 72, 36, 50 and 36, respectively, of List I of the Seventh
Schedule…"

In 2004, the Supreme court, in order to ensure impartial investigation and fair trial,
directed Bano's case to be transferred out of Gujarat and to Maharashtra as Bano
alleged receiving death threats from the accused persons. The Central Bureau of
Investigation (CBI), on the direction of the Supreme Court, investigated the matter,
and the trial was held in Maharashtra. In 2008, a Mumbai Session court
convicted the accused persons guilty of offence under Section 302, 376(2)(e)(g)
read with Section 149 of the Indian Penal Code (IPC), and awarded them rigorous
imprisonment for life and fine. In May 2017, a division bench of the Bombay High
Court upheld the conviction and sentence awarded by the trial court.

B. Which policy should have been followed while granting remission- One which
existed at the time of the conviction or the one which existed at the time of filing
the remission application ?
The reasoning behind using the 1992 policy is that the Supreme Court had directed
the Gujarat government to rely on the policy that was in effect at the time of their
conviction in 2008.
The main difference between the 1992 and 2014 policies is that the former is not
detailed whereas the latter is detailed in terms of who is eligible for the remission.
Convicts in the Bilkis Bano case were not eligible under the 2014 policy for
 remission. The 1992 policy did not distinctly categorise convicts eligible or not
eligible for early release from prison.
The 2014 policy clearly states that the following classes of prisoners, among several
others listed in the Annexure 1 of the 2014 notification stating the remission policy,
are not eligible for remission:
Prisoners "investigated by the Delhi Special Police Establishment constituted under
the Delhi Police Establishment Act, 1946" are not eligible. The Bilkis Bano case
was probed by the CBI, constituted under the Delhi Police Establishment Act. AND
"Prisoner convicted for murder with rape or gang rape" are not eligible. The Bilkis
Bano convicts were sentenced on murder and gang rape charges.

11. MEDICAL INSANITY OR LEGAL INSANITY (SECTION 84 IPC)

The Section 84 of the IPC states:

"Act of a person of unsound mind. —Nothing is an offence which is done by a person

who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing
the nature of the act, or that he is doing what is either wrong or contrary to law."
The Section implies that for the defense of Insanity to be applicable, Insanity shall be
seen through two perspectives. One is the Medical Insanity and the other shall be the
Legal Insanity. While the former refers to a significantly deranged mental state that
typically results from a specific condition, the latter refers to the Unsoundness of Mind
or the Lack of Understanding that precludes one from having the mental capacity
necessary by law to engage in a certain relationship, position, or transaction (or that
absolves one from legal or financial obligation.) Moreover, the prosecution immunity
under Insanity does not include mere or partial delusions, impulses and compulsive
behaviour. Both these forms may seem as an important factor while deciding cases,
however in the Courts of Law; it is the Legal Insanity which is to be ascertained, not its
Medical counterpart.
When it comes to opining on the mental condition of an accused person whose
psychological health is in issue, Indian courts have traditionally prized the professional
judgement of a psychiatrist.
Also, a forensic psychiatrist expert is not frequently called upon to testify in a criminal
trial in India, with the exception of the insanity defense provided for in Section 84 of
the Indian Penal Code.
 The judge will have to depend on the testimony of witnesses as well as the evidence
that is presented in the form of prior and subsequent medical problems. Even if it may
just be momentary, intoxication falls within the concept of being mentally unwell.
Further, in India, unlike the United States, there are no official specialties in the area of
forensic psychology. The same lacks access to training and cannot be found. The Indian
criminal justice system is grimly aware that every case and inquiry requiring a forensic
psychiatrist's opinion has flaws or grey areas. Also, the Section has mentioned 'Insanity'
but has not provided what exactly would fall into the ambit of the same. This creates
confusion as to whether the Defense would be applicable or not, as mental illnesses too
have their different stages.
In order to provide the accused with a defense, it is suggested that the term "mental
insanity" should have a clear definition in order to avoid the various debates and
misunderstandings that can arise when attempting to distinguish between the "mental
disease" and the true mental insanity that the Code seeks, or the so-called "legal
insanity."

12. Can Retweeting, Sharing Or Forwarding Offensive Posts Attract Criminal

Liability?
While there is no direct provision in Indian law which declares retweeting, forwarding
or sharing posts on social media a criminal offence, there are various provisions which
provide for criminal liability under Information Technology Act and Indian Penal Code.
Sec. 67 of IT Act provides for punishment for publishing or transmitting obscene
material in electronic form. The imprisonment may extend to three years and fine and
in event of second or subsequent conviction, five years and extended fine.
Similarly, sec. 67A of the Act provides for punishment for publishing or transmitting
of material depicting children in sexually explicit act in electronic form. It provides for
an imprisonment which may extend to five years and fine. In event of second or
subsequent conviction, seven years and extended fine.
Apart from IT Act, the Indian Penal Code specifies certain provisions which may be
invoked against an individual when any derogatory or offensive message is sent or
shared in cyberspace, such as Sections 153A, 153B, 292, 295A, 499 etc. These offences
relate to promotion of communal hatred, obscenity, hurting of religious sentiments and
defamation.
 In 2017, Delhi High Court dismissed a petition of Aam Aadmi Party leader Raghav
Chadha challenging summons issued to him in a defamation case filed by then Union
Minister Arun Jaitley while leaving it to the trial court to decide if retweeting would
attract liability under sec. 499 of IPC (defamation). Observing that a retweet brings the
contents of original tweet into immediate attention of the followers of the user who
retweets, Justice Sangita Dhingra observed that the question as to whether retweeting
would attract criminal liability has to be determined during trial of a case.
In absence of a clear authoritative judgment or direct statutory provision on the subject,
it is clear that the present question (whether retweeting or forwarding posts on social
media in itself is a criminal offence) is left for the Courts to decide based on the facts
and circumstances of each cases.

A reading of Delhi High Court's reasoning in Raghav Chadha's case makes it clear that
the Trial Court, as a first Court of instance, has to determine whether retweeting would
attract the liability of defamation under the Penal Code.
If the act of retweeting or sharing or forwarding other's posts on social media has to be
made a criminal offence, the legal framework has to fill the grey area in present laws
so as to ensure that the same is not misused by law enforcement agencies in any manner.
Due to lack of clear differentiation between the first party and the retweeter or sharer,
there is a likelihood that the latter might be treated at par with the former.

13. MEDIATION BILL/CRITICISM

With over 4.70 crore cases pending in various Courts in India, the Mediation Bill 2021
is a welcome measure by the Government of India giving statutory framework to the
concept of mediation in India. The expenses of litigation are too high not only in terms
of money and expenses but also in terms of the time and the permanent damage to
relationships. It has been observed that in order to accelerate civil litigation process
there is a growing trend of civil litigation transcending into criminal litigation, as there
is a growing tendency among the parties to convert civil disputes into criminal disputes
and misusing criminal proceedings as a shortcut to pressurize and arm twist the
opponent. As a result, one civil litigation generates criminal cases as well and adds to
the already overflowing dockets of the Courts. This is not a healthy trend which needs
to be checked as apart from harassing the parties it is an abuse of the criminal procedure
to fast-track civil cases, thereby multiplying litigation. Mediation can play a major role
in settling such commercial disputes which will not only reduce such litigation but will
also give a solution with satisfaction and peace to the parties.
The Mediation Bill 2021 is a welcome first step in the right direction; not only does
having a dedicated enactment legitimise mediation, but it also serves to promote public
confidence in what is a very useful tool to settle disputes expeditiously outside a Court.
The Bill has made provision for mandatory pre litigation mediation in civil and
commercial matters under S.6, which is a welcome step as parties will have an
opportunity to nip in the bud the very dispute even before entering the Court and this
will relieve the already overburdened Courts. If used effectively this provision has the
power to transform India's position in the ease of doing business index and can go a
long way in creating a positive environment inviting International investments in India.
The only challenge is to have trained mediators who have expertise in handling
commercial matters as such matters cannot be handled effectively by the conventional
mediators or advocates. The Bill reflects the basic tenets and enforceability of
mediation by ensuring confidentiality and voluntariness in the process by virtue of Ss:
23 (2) & 24 which provides that the acknowledgements, opinions, suggestions,
promises, proposals, apologies and admissions made during the mediation and its
acceptance and the documents prepared during the process shall be confidential. The
provision also bars any audio or video recording of the process. This ensures the
credibility and acceptability of mediation process in the parties, and the fact that a
mediation settlement can be executed like a judgment or a decree ensures its
enforceability. The Bill is forward looking and introduces the novel concept of
'community mediation' under Chapter X. Community mediation may be attempted to
resolve disputes likely to affect the peace and harmony amongst residents of a locality.
It will be conducted by a panel of three mediators (may include persons of standing in
the community, and representatives of resident welfare associations). The persons of
standing in the community which may be the local pandit, priest, or maulvi or even a
pradhan, who can play a major role in resolving local disputes as their decisions will be
respected in the community. Community mediation has been embraced as an
'empowerment tool' for individuals and communities to take back control over their
affairs from the Courts. The ultimate objective is to create a parallel, citizen-run, and
community-centred dispute resolution system. The only issue lies with the
enforceability of such settlements. To ensure that mediation can penetrate across the
country, a 'mediation cell system' can be created across gram panchayats in rural areas,
 and to further strengthen the mediation process, elders can be trained to carry out
effective mediations. The para legal volunteers of the District Legal Service Authorities
(DLSAs) in each district can play a major role here. Another novel concept introduced
by the Bill is 'online mediation' under S. 32. It provides that online mediation including
pre-litigation mediation may be conducted at any stage of mediation under this Act,
with the written consent of the parties including by the use of electronic form or
computer networks. The use of online mediation is of much importance as it will
address infrastructural issues to a great extent and also ensure the virtual presence of
parties if they cannot attend a session physically due to any constraint. The Bill applies
to international mediations (i.e., where at least one party is a foreign party) of
commercial disputes as well, if they are conducted in India. However, the Bill places
international mediation in the part dealing with domestic mediation being conducted in
India, which will result in these settlements losing the benefit of the Singapore
Convention for enforcement of commercial mediation settlements across the world.
Hence, the parties in such cases would prefer to mediate their disputes out of India, and
our hopes to build a robust capacity to handle such disputes will come to naught.
The benefits of the Bill outweigh the challenges. Mediation, being the cheapest and
simplest option available to the public at large, can be described as a tool of social
justice. A separate legislation for mediation and rules will indubitably address most
concerns around the mediation process and pave the way for making mediation the first-
stop dispute resolution method for domestic and international disputes.

14. MENSTRUAL LEAVE

In order to provide menstruating individuals with favourable working conditions in
India, Ninong Ering, a Member of Parliament from Arunachal Pradesh, tabled a
Menstruation Benefit Bill in 2017. He introduced a private member's bill that sparked
debates around menstrual leave in India. However, the bill hasn't passed and India
doesn't have any policy for menstrual leave in place as of now. To aggravate the
situation, no policy matter related to menstrual leave has been discussed in Parliament
since the Menstruation Benefit Bill was tabled before Parliament. This is particularly
disturbing in light of the fact that there are numerous female leaders holding the position
of Cabinet Minister at the Centre.
The Menstruation Benefit Bill contained some progressive measures to destigmatize
menstruation and provide safe and healthy working conditions for female employees.
 It aimed at providing a level-playing field to all women by recognizing their
physiological needs. Some of the highlights of the scheme were to give women a 4-day
menstrual leave. The bill extends to all females in private and public sectors including
students above eighth grade. Furthermore, the bill also provides the provision for resting
facilities at the workplace during menstruation.
The main objective of the bill was to introduce progressive reforms which would create
a women-friendly working environment. The Bill is based on the assumption that all
women have the same menstrual experience which is not true. Moreover, the Bill fails
to take into account the transgender and non-binary people who bleed and focused on
menstruation as a biological process which takes place only in the female body and
hence, violative of Article 14 of the Constitution which provides for Equality Amongst
Equals. Implementation of the Bill would lead to discriminatory behaviour toward
female employees and the pay parity between them. (if passed it needs to be an
inclusive one otherwise it would be violative of article 14)
Depriving women of these basic necessities would lead to life-threatening diseases like
dermatitis, urinary tract infection, and cervical cancer. The physical and biological
distinction between men and women should be taken into account and the basic
necessity requirement must be decided subjectively keeping in mind the requirement of
the body.

15. MARITAL RAPE

While highlighting that the institution of marriage cannot act as a hurdle for a woman
to seek relief against forced sex, the Court also underscored, "It is not inconceivable
that married women become pregnant as a result of their husbands having "raped" them.
The nature of sexual violence and the contours of consent do not undergo a
transformation when one decides to marry. The institution of marriage does not
influence the answer to the question of whether a woman has consented to sexual
relations."
Significantly, the judgment also took cognisance of the harsh reality of intimate partner
violence which can often also take the form of rape. The Court dispelled the myth that
rape generally occurs only during an interaction with a stranger and took cognisance of
the lived realities of hundreds of women who have been subjected to gender-based
violence within the context of family and intimate relationships.
With regard to the issue revolving around the exception of marital rape, the Court ruled
that regardless of exception 2 of section 375 of IPC which exempts criminalisation of
marital rape, for the purpose of Rule 3B (a) of Medical Termination of Pregnancy Rules
'rape' would include the husband's act of sexual assault or rape committed on his wife.
However, in the same breath, the Court clarified that including marital rape within the
meaning of rape was solely to be done for the purpose of the Medical Termination of
Pregnancy Act alone and that any other interpretation would have the effect of
compelling a woman to give birth to and raise a child with a partner who inflicts mental
and physical harm upon her.
It may be noted that the Supreme Court is at present considering petitions challenging
the constitutionality of Exception to Section 375 of the Indian Penal Code.

Few points to keep in mind before anything can be said on marital rape :
• Are women completely helpless ? (marital rape amounts to cruelty which has
been held by several judicial decisions and it is a ground for seeking divorce)
• Rape cannot be seen only as a tool for sexual satisfaction. Many a times it is
done just to humiliate / show anger / overpower, etc.
• Forced pregnancy : a bench led by Justice DY Chandrachud in X vs Principal
Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi,
significantly held that the meaning of rape must be held to include "marital rape"
for the purpose of the Medical Termination of Pregnancy Act and Rules.
"Married women may also form part of the class of survivors of sexual assault
or rape. The ordinary meaning of the word 'rape' is sexual intercourse with a
person, without their consent or against their will, regardless of whether such
forced intercourse occurs in the context of matrimony. A woman may become
pregnant as a result of non-consensual sexual intercourse performed upon her
by her husband", the Court held.
• Will criminalising marital rape shift the balance altogether in the favour of
women ?
At present a woman has the option to walk out of a marriage on the ground of
marital rape. Protection of Women from Domestic Violence Act, 2005 exists,
the core of which is about protecting women from physical and mental cruelties
of all forms, including sexual abuses. While a magistrate under the domestic
 violence law has no power to criminalise the act of a man raping his wife, much
less sentencing him, he has vast powers to protect women - including wives and
live-in partners. That the domestic violence law has made a difference is clear
from the fact that some organisations now believe that the law is often misused
by women and their families to settle scores with a husband or live-in partner
they may have fallen out with. The short point, however, is that wives are not
that helpless in the case of marital rape: they can seek the help of a magistrate
under the domestic violence law whereas under the IPC only separated women
can complain against rape by their own husbands.
The domestic violence law affords a woman with twin reliefs: the benefit of
staying in a shared household while at the same time seeking relief from the
sexual advances of her husband or live-in partner. This may appear to be a
contradiction but then, the term marital rape itself is at first blush an oxymoron,
isn't it? Even in the western world, women complaining of marital rape, and
who succeed in prosecuting their own husbands, actually obtain final salvation
only through divorce. If the shoe pinches, it is better to discard it.
• Marital rape if criminalised and the man is sent behind bars, will it not hamper
with the rights of maintenance of the woman ?
• What will be the burden of proof ?
The court in the recent case of X v. The principal secretary held that In order
to avail the benefits of Rule 3(b)(a) the women may not necessarily seek
recourse to formal legal proceedings to prove the factum of sexual assault
or rape. But what about prosecuting the husband for marital rape ? What will
be the ground to prove innocence ?

16. RELIGIOUS CONVERSION AND RESERVATION BENEFITS

One of the most complicated issues arising out of conversion is the caste status of the
converted individual. The Constitution (Scheduled Caste) Order 1950 states that "no
person who professes a religion different from Hinduism shall be deemed to be a
member of Scheduled Caste community." However, the said order was first amended
in the year 1956 to include Sikhs and it was again amended in 1990 to include
Buddhists. As a result, if a member of the Scheduled Caste Community converts into
Christianity or Islam then he/she ceases to be a member of the Scheduled Caste
 Community. Thereby they cannot claim quota benefits guaranteed to the members of
the Scheduled Caste Community under the Constitution. Over a period of time the
Scheduled Caste members who have converted into any other religion except Sikhism
and Buddhism have demanded quota benefits. However, the Court has refused to give
them any kind of benefit.
The matter is not yet settled and the answer to the same can be given only in the light
of the object behind reservation. The primary object of reservation was social
upliftment of the weaker section and to curb the evils of untouchability and caste
system. So before granting reservation to the converts it has to be seen whether they
actually need social upliftment or not ? or whether the conversion had any impact on
their social status ?
Dr. B. R. Ambedkar converted to Buddhism along with many of his followers as he
believed that unless casteless and classless society is created, there will be no progress
in India. It was his belief that converting to Buddhism will change his caste too and so
the social status. Moreover the caste system and caste based discrimination is not as
prevalent in other religions as it is in Hinduism.

17. NEED FOR A SEPARATE BAIL LEGISLATION

In the recent landmark Satil Kumar Antil case, the Hon'ble Supreme Court has defined
bail as "a surety inclusive of a personal bond from the accused. It means the release of
an accused person either by the orders of the Court or by the police or by the Investigating
Agency." The Court in this judgment has taken a detailed analysis of the provisions of
Bail under the CrPC, which although is a form of procedural law yet adheres to the
underlying principles of Article 21 of the Indian Constitution in order to ensure the
protection of the fundamental rights of the citizens of the country. Further, it has
classified the offenses into 4 categories- Category A (offences punishable with
imprisonment up to 7 years), Category B (offences punishable with imprisonment
beyond 7 years and death penalty/life imprisonment), Category C (Offences punishable
under Special Acts such as that of NDPS) and lastly, Category D (Economic offenses).
For these categories, the Court has then laid down steps that are to be followed in order
to determine the kind of bail that is to be granted to the people based on different criteria
involved.
While the court has also reflected on multiple procedural and substantial aspects that are
affiliated to the concept of Bail, at the same time one of the key highlights of this
judgment has been the request made by the Court for the government to bring forward a
separate Bail Act in order to deal with the issues arising out of the application of the
limited provisions of Bail. This is primarily due to the fact that these provisions have
given a huge scope for the authorities to interpret them in varied ways, thus, not only
creating an ununiform methodology for dealing with Bail applications but also impacting
the execution of the same.

In countries like Australia , United Kingdom and United States of America , there exists
a separate bail legislation.

18. RIGHTS OF WIDOWS UNDER DOMESTIC VIOLENCE ACT

In the recent judgment of Prabha Tyagi v. Kamlesh Devi, the Supreme Court of India
has made certain important observations with respect to scope of relief obtainable under
the Domestic Violence Act, 2005 [hereinafter, Act] as well as the persons entitled to
obtain such relief. The court has progressively undertaken to expansively interpret the
provisions of the Act so as to provide for a wider protection within the precincts of the
social-welfare legislation. With its purposive interpretation of the legislative provisions,
the Supreme Court has effectively made space for the rights of the widowed daughters-
in-law within remedial functionality of the Act.

To briefly sum up, in this case the court was dealing with the question of maintainability
of an application under Section 12 of the Act by a widow, after the death of her husband,
against her mother-in-law and father-in-law, seeking residence order to reside in the
property of her late husband, among other reliefs. The precise question before the court
was whether an aggrieved woman who had never actually lived with the respondents in
a shared household and has no subsisting domestic relationship between the complainant
and the respondents [after the death of complainant's husband] at the time of the
complaint is entitled to relief under of residence in the shared household under the Act.

Two important observations made by the court, which was specifically relevant to the
issue of rights of a widow against the in-laws under the Domestic Violence Act, 2005,
and have a pave a way for the better realization of rights of the widowed women are:
• The requirement of "subsisting domestic relationship" not necessary at the
time of filing application under the Act - Section 12 of the Act gives right to
the "aggrieved person" [or the Protection Officer or any other person on behalf of
the aggrieved person] to apply to the Magistrate to present an application to him
seeking one or more reliefs under the Act. Section 2(a) of the Act defines an
aggrieved person as any woman who is, or has been, in a "domestic relationship"
with the respondent and who alleges to have been subjected to any act of domestic
violence by the respondent. Domestic relationship has been defined under Section
2(f) to mean a relationship between two persons who live or have, at any point of
time, lived together in a shared household, when they are related by
consanguinity, marriage, or through a relationship in the nature of marriage,
adoption or are family members living together as a joint family As clear from
the reading of the above provisions, this requirement of "domestic relationship"
is a mandatory pre-requisite for a person to be so classified as an aggrieved person
under the Act, and thereby be entitled to claim the relief under Section 12.
However, as observed by the Supreme Court in Prabha Tyagi, it is not necessary
that at the time of filing of an application by an aggrieved person, the domestic
relationship should be subsisting. The court laid emphasis on the term "has been"
under Section 2(a) and observed the need to interpret domestic relationship in a
broad and expansive way to encompass not only subsisting domestic relationship
but also past domestic relationship.
• The Widowed Daughter-In-Law Can Enforce Her Right To Reside In
'Shared Household' Even If She Has Not Actually Lived There: The Concept
Of Constructive Residence Under Section 17- The court interpreted the right
to shared household under Section 17 to include the right to enforce residence in
shared household even though the aggrieved person never actually resided in that
place.
Section 17(1) provides the right of every woman to reside in the shared
household:
"Notwithstanding anything contained in any other law for the time being in force,
every woman in a domestic relationship shall have the right to reside in the shared
household, whether or not she has any right, title or beneficial interest in the
same."
 The court observed in context of Section 17 that if a woman in a domestic
relationship seeks to enforce her right to reside in a shared household, irrespective
of whether she has resided therein at all or not, then the said right can be enforced
under Sub-Section (1) of Section 17 of the D.V. Act. The court held that, the
expression 'right to reside in the shared household' would include not only actual
residence but also constructive residence in the shared household i.e., right to
reside in the shared household.
The court relied on the phraseology used under Section 17(2) to support its
interpretation. Section 17(2) provides that: "The aggrieved person shall not be
evicted or excluded from the shared household or any part of it by the respondent
save in accordance with the procedure established by law."
The court laid emphasis on the terms, "evicted", which it interpreted to imply
eviction from actual residence in the shared household; and "excluded", which it
interpreted to imply exclusion from constructive residence i.e. the right to reside
in the shared household, to support its wide interpretation of Section 17.
This interpretation would be particularly relevant in case of widows, who a lot of
times reside in a different residence along with their husbands prior to his death,
and are left in the state of destitution after the death of their husband. In such a
case, the judgment of Prabha Tyagi bars the defence of "absence of actual
residence in a shared household" to be used against a widow.

19. RUSSIA V. UKRAINE

The International Court of Justice (ICJ) at the Hague, Netherlands, on Wednesday by 13

votes to 2 issued its order on provisional measures in the case instituted by Ukraine
against Russia under the Genocide Convention. It was further averred that its order on
provisional measures creates binding international legal obligations under Article 41 of
the Statute of the International Court of Justice (ICJ Statute). Granting Ukraine's request
for provisional measures, the ICJ ordered Russia to "immediately suspend military
operations that it commenced on 24 February 2022 on the territory of Ukraine."
Furthermore, Russia has also been directed to ensure that any irregular units or
individuals or organisations under its effective control take no steps in furtherance of
Russia's military operation.
The aforementioned two orders were passed by a majority of 13 votes against 2, with
Indian judge at ICJ Justice Dalveer Bhandari voting in favour of the majority.

It may be noted that the Statute is an integral part of the UN Charter, as specified by
Chapter XIV of the United Nations Charter, which established the ICJ. All 193 UN
member states are parties to the Statute by virtue of their ratification of the UN Charter.

By signing the UN Charter, pursuant to Article 94, a Member State of the United Nations
undertakes to comply with the decision of the Court in any case to which it is a party.
Both Russia and Ukraine countries have signed and ratified the UN Charter.

Remedies available if Russia refuses to comply with the Court's order on

provisional measures :

The Court's judgments in the contentious cases are final and without appeal, though there
is no way ICJ can enforce its decisions. However, parties have the option of approaching
the United Nations Security Council which can compel the States to follow the Court's
ruling. However, a judgement against one of the five permanent council members or its
ally countries can be vetoed by that member.

This was infamously observed in the case of Republic of Nicaragua v. The United States
of America wherein the Court had decided in favour of Nicaragua and had awarded
reparations to Nicaragua. When Nicaragua applied to the United Nations Security
Council (UNSC) to convene an emergency meeting on the issue of non-compliance, the
USA (a permanent member) had used its veto power against the draft resolution. It may
be noted that the United States too, like Russia, had refused to participate in the
proceedings.

Pertinently, even though Russia has declined to appear before the ICJ, it has has
responded to the case instituted by Ukraine vide a written document filed before the
United Nations Security Council (UNSC) averring that the ICJ lacks jurisdiction in
hearing the case. It has been claimed that Russia has not invoked the provisions of the
Genocide Convention, 1951 as a justification for attacking Ukraine and that the military
attack is instead based on Article 51 of the United Nations Charter (self -defense) and
customary international law.

The ICJ order will however not be without consequence for Russia as it is bound to have
a negative impact on Moscow's justification for war. The ICJ's order could also be used
to further justify the imposition of sanctions and other economic/trade measures against
Russia by individual nations or regional groups like the European Union.

The Committee of Ministers of the Council of Europe on Wednesday formally decided

that the Russian Federation ceases to be a member of the organisation. The Committee
of Ministers refused to allow Russia to leave on its own terms, pursuant to a notice of
withdrawal filed on the basis of Article 7 of the Statue of the Council of Europe. Rather,
the Committee pushed Russia out with no notice period on the basis of Article 8 of the
Statute.

Separately and simultaneously, the International Criminal Court (ICC) Prosecutor has
decided to open an investigation into the situation in Ukraine, observing that there is a
"reasonable basis" to believe that war crimes and crimes against humanity have been
committed.

20. MEAT BAN ISSUE

Majorly, there are two aspects of law that are encroached upon with meat ban- one is the
fundamental right to trade and livelihood and second, the fundamental right to food.

Article 19(1)(g) of the Constitution states that all citizens shall have the right to practise
any profession, or to carry on any occupation, trade or business. This right is subject to
Article 19(6) which says that the State can impose reasonable restrictions on the exercise
of the right through a law in the interests of the general public. The question here would
be whether the interests of the general public should mean the sentiments of a section of
the population.

In a plethora of judgments, the Court has laid down the test to determine the reasonability
of restrictions. It has held that for a restriction to be valid, it must have a direct and
proximate nexus with the object which the legislation seeks to achieve and the restriction
must not be in excess of that object i.e., a proportionate balance has to be maintained.
While noting that the judges should base their decision not on the social morals but as
per the Constitution, the Supreme Court in State of Madras vs. V.G. Row held that in
forming their own conception of what is reasonable, the judges must be guided by a
sobering reflection that the "Constitution is meant not only for people of their way of
thinking but for all…".
In Mohd. Faruk vs. State of M.P., while holding a Municipality's ban on slaughter of
bulls to be illegal, a 5-judge bench of the Supreme Court observed :

"The sentiments of a section of the people may be hurt by permitting slaughter of bulls
and bullocks in premises maintained by a local authority. But a prohibition imposed on
the exercise of a fundamental right to carry on an occupation, trade or business will not
be regarded as reasonable, if it is imposed not in the interest of the general public, but
merely to respect the susceptibilities and sentiments of a section of the people whose way
of life, belief or thought is not the same as that of the claimant".

In 2004, a 2-judge bench of the Supreme Court in Om Prakash & Others vs State of
Uttar Pradesh upheld the prohibition of sale of eggs in Rishikesh, Haridwar and Muni
ki Reti. The plea was filed by the hotel owners residing in the cities citing their right to
profession under Article 19(1)(g). The Court held that the ban formed a reasonable
restriction under Article 19(6) and said that since trade of food items were unrestricted
in adjoining towns and villages, hence there was "no substantial harm caused to those
engaged in such trade". Interestingly, the Court also cited Article 51A which provides
for the citizen's fundamental duties. The Court's decision was based on the fact that these
were pilgrimage places and that the ban had been in existence for a long period, over 5
decades.

The Court observed :

"The reasonableness of complete restriction imposed on trade of non-vegetarian food

items has, therefore, to be viewed from the cultural and religious background of the three
municipal towns....

Geographical situation and peculiar culture of the three towns justify complete restriction
on trade and public dealing in non-vegetarian food items including eggs within the
municipal limits of the towns"

Our Constitution does not explicitly provide for the fundamental right to food. But the
same is read under Article 21. In 1958, the Constitution bench of the Supreme Court for
the first time, in the matter of Mohammed Hanif Qureshi discussed the aspect of right
to food. In it, while the Court upheld the ban on cow slaughtering, it also considered the
nutritional needs, and partially allowed the slaughter of bovines noting that for a large
section of the poorer people, consuming beef and buffalo flesh was a matter of
"necessity". However, the Supreme Court in State of Gujarat v. Mirzapur Moti
Kureshi, overruled Qureshi judgment saying that since only a small number of Indians
ate beef, it could be banned.

The argument to uphold a restriction on the ground that since only a small number of
population is affected is legally impermissible now. The Supreme Court in the landmark
ruling of Navtej Johar ( which decriminalized consensual homosexaul relations) had
held that if a law violates the citizen's fundamental rights, it does not matter how many
are affected and noted that "constitutional morality always trumps any imposition of a
particular view of social morality by shifting and different majoritarian regimes".

The right to food has now been recognized as part of one's fundamental right to privacy
under Article 21. In 2017, the nine-judge bench of the Supreme Court in Puttaswamy
case, unanimously declared the privacy to be a fundamental right and held that "it is a
fundamental and inalienable right and attaches to the person covering all information
about that person and the choices that he/she makes. It protects an individual from the
scrutiny of the State in their home, of their movements and over their reproductive
choices, choice of partners, food habits, etc." It is quite evident that the clamour for meat
ban is mostly aimed at making political gains by triggering religious sentiments. A ban
on meat-shops, which does not serve any larger public purpose other than catering to the
sentiments of a section, will amount to forcing all sections of society to follow the beliefs
and observances of a particular group. Such a ban, imposed solely solely on the ground
of religious sentiments, and which infringes the fundamental rights under Article 19 and
21, falls foul of the post-Puttaswamy tests of proportionality and reasonableness evolved
by the Supreme Court.