Case Study

 

Case Study On Civil And Criminal Case

 

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DR. SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERISTY LUCKNOW

CASE DIARY ON A CIVIL AND CRIMINAL CASE (UNDER THE SUPERVISION OF Dr. GULAB RAI)

CASE DIARY ON ONE CIVIL AND CRIMINAL CASE

SUBMITTED TO: Dr. GULAB RAI

: SUBMITTED BY ABHISHEK VERMA

FACULTY OF LAW

R. NO. 143070005

D.S.M.N.R.U LUCKNOW

B.COM.LLB (H) TH

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 SEMESTER.

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TABLE OF CONTENTS CONTENT

PAGE NO.

1. Vishakha ishakha vs. vs. State State of Rajasthan………… Rajasthan……………………… …………………………… …………………3 …3 1.1 Facts…………………………………………………………………..3 1.2 Judgement…………………………………………………………….4 1.3 Vishakha Guidelines………………………………………………….5 1.4 Critical Analysis………………………………………………………7 1.5 Conlusion……………………………………………………………..8 2. Shayara Shayara Bano Bano Vs. Union Of India… India………………… ……………………………… ……………………..9 ……..9 2.1 Case Title……………………………………………………………...9 2.2 Background…………………………………………………………..10 2.3 Issue & Judgement…………………………………………………...11 Judgement…………………………………………………...11 2.4 Critical Analysis……………………………………………………....13 2.5 Conclusion…………………………………………………………….14

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Vishakha Vs.  State Of Rajasthan

Equivalent Citation - (1997) 6 SCC 241 Petitioner : Vishaka & Ors. Respondent : State of Rajasthan & Ors. Date of Judgement: 13 13/0 /08/ 8/1 199 997 7 Bench: J.S. Verma C.J., Sujata V. Manohar & B.N. Kirpal JJ. Cases Referred: Nilabati Behra v. v. State of Orrisa Facts:

Bhanwari Devi was a social worker in a programme initiated by the state government of  Rajasthan aiming to curb the evil of Child Marriage. Amidst, the protest to stop a child marriage in one Ramakant Gujjar’s family Bhanwari Devi tried her best to stop that marriage. However, Howev er, the marriage was successful successful in its completion even though widespread widespread protest. protest. In 1992, to seek vengeance upon her, Ramakant Gujjar along with his 5 men gang raped her in front of her husband. husband. The police department department at first tried to dissuade dissuade them on filing the case on one pretext or other but to her determination; she lodged a complaint against the accused. They were however, subjected to harsh cruelty by the female police attendants even to the extent that for procuring evidence her lehenga lehenga was  was demanded from her and she was left with nothing but her husband’s blood – stained dhoti. dhoti. Adding  Adding to their misery, misery, their request to spend the night in the police station was also refused. The trial court acquitted the accused but she didn’t lose hope and seeing her determination all female social workers gave their support. They all filed a writ petition in Supreme Court of  India Ind ia under under the name ‘Vishakha’. ‘Vishakha’.The The apex court was called upon to frame guidelines for   preventing Sexual Harassment at Workplace. Workplace.

The hon’ble court did come up with such guidelines as Vishakha Guidelines  Guidelines  which formed the basis of The The Sexual Harassment of Women at Workplace (Prevention, Prohibition and   Redressal) Act, 2013 2013.

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It has been laid down in the judgment above-mentioned that it is the duty of the employer or other responsible persons in work places or other institutions to – 

1. Preven Preventt the the ha happe ppenin ning g of such event event 2. To furnish the the employees employees with effective effective mechanism mechanism for for the process process of resolving resolving & trying of such indecent acts of sexual harassment 3. For For tthi hiss pur purpo pose se “Sexual harassment ” means disagreeable sexually determined  behavior direct or indirect as: 

 physical contact and advances;

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a demand or request for sexual favours;

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sexually coloured remarks;

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showing pornography;

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any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

Judgment

Gender Equality finds place in Fundamental Rights enshrined under Article 14, 19 & 21. Sexual Harassment at Workplace is a clear violation of gender Equality which in turn violates these integral rights of the female class. Such harassment also results in the freedom provided under Article 19(1)(g). The protection of females has become a basic minimum in nation across the globe. In the absence of domestic law to curb the evil, assistance could be rendered from International Conventions and Statues to the extent that it does not contravenes with any domestic law or the do not violates the spirit of Constitution. The Judiciary derived this authority from Article 51(c) and 253 r/w Entry 14 of the Union List of Seventh schedule of  the Constitution. The court held that such violation therefore attracts the remedy u/a 32.

The Indian Judiciary has time and again reiterated upon the fact that Right to life under Art. 21 also comprise Right to live with dignity. Such aforesaid dignity could and should be  protected with suitable s uitable guidelines. It is of utmost importance to frame fra me some guidelines to fill the legislative vacuum and curb the evil.

The apex court found authority in filling the legislative gap by making law so as to maintain the Independence of Judiciary and its role envisaged under Beijing Statement of Principles Vishakha Guidelines & Triple T Talaq alaq Case Study

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and Independence of Judiciary in LAWASIA LAWASIA region which was signed by the Chief Justice of  the Asia Pacific in 1995 as those representing the minimum standards necessary to be observed in maintain an independent and effective Judiciary.

The judiciary found the following as source of the guidelines which would act as law of the land: 

Convention on the Elimination of all forms of Discrimination against Women (Article 11 & 24)

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General recommendations of CEDAW CEDAW in this context (Article 11,22,23,24) 11,22,23,24)



At the 4  W  World orld Conference on Women in Beijing, Govt. of India made an official

th

commitment to set up a National Commission at every level and in every sector  that will look after Women’s omen’s Rights. The Supreme Court inter alia, clearly mentioned that the guidelines were to be treated as law declared u/a 141.

Vishakha Guidelines

1. Empl Employ oyer er or othe otherr an answ swera erabl blee pe perso rsons ns are bo boun und d to pr precl eclud udee such such in inci cide dent ntss from from happening. In the event of happening of such incidents the organization must consist of  mechanism to provide conciliatory and prosecutionary facilities.

2. Definition –   For this  purpose “Sexual harassment ” means disagreeable sexually determined behaviour direct or indirect as:

a) Physical Physical contact and advances advances;;  b) A demand or request for sexual favours; c) Sexually Sexually coloured coloured remarks; remarks; d) Showing Showing pornograp pornography; hy; e) Any other unwelcome unwelcome physical, verbal or non-verbal non-verbal conduct of sexual nature 3. Every employer other than providing services under (1) is under an obligation to –  Vishakha Guidelines & Triple T Talaq alaq Case Study

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i. Expressly notify the prohibition of sexual harassment ii. The rules/regulat rules/regulations ions of govt. & public – sector bodies bodies must include rule rules/regu s/regulation lationss  prohibiting sexual harassment. iii. The Standing Standing Orders Orders of the private employer employer made under under Industrial Industrial Employmen Employmentt (Standing Orders) Act, 1946 should include such provisions to prohibit sexual harassment. iv. iv. The working working conditions conditions must be appropriate appropriate and not hostile to the woman employees employees of  the organ organizat ization ion.. Furthe Furtherr, the female female employ employees ees should should feel a sense sense of equalit equality y in the atmosphere. 4. When the offences offences committed are the one discussed und under er Indian Penal Code or any other  law,, the employer is bound to start the prosecution with complaining to appropriate authority. law Further, the employee must provide the victim all sort of protection while dealing with the complaints.

5. Appropriate Disciplinary Action shall be taken in case there is a violation of service rules.

6. Irrespective of the fact that the particular act constitutes an offence under IPC or any other law, the organization must have a redressal mechanism to deal with it.

7. The Complaint Committee Committee must be headed by a woman and not less than half of the members must be woman. For further assistance the committee shall also include NGO’s or  someone someo ne aware with such issues.The committee committee must be adequate in providing providing relief to the victim with appropriate counseling facilities. An annual report shall be submitted to the govt.  by the committee informing the former of the development regarding the said issue in the organization.

8. An employee-employer meet shall be be arranged where the workers shall be allowed to raise issues of sexual harassment.

9. The employer shall take adequate adequate steps in order to spread awareness about the social evil.

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Critical Analysis

The cou court in Vishakha Vishakha   was called upon upon for the enforc enforceme ement nt of the fundamen fundamental tal rights rights mentioned under article 14, 19 & 21. The country had after 1991 seen rise in gender equality in terms of employment. Since, 1991 more women were employed in establishments than pre 1991 period. This rise also was a crucial factor in the rise of incidents of sexual harassment and related offences. At that point of time there was no law to prevent & punish commission of such offences therefore, majority of the incidents went unreported and hence unpunished. This was a black stain on the Indian criminal justice system. Due to this absence of law, there were many gross violations violations of rights rights & the victims victims had no remedy. remedy. The legislature legislature was still silent on making any law in such regard even after multiple incidents of similar nature where there there was was sexua sexuall ha hara rassm ssmen ent. t. In Indi diaa in co comp mpet etin ing g wi with th th thee libe liberal ral world world succe succeed eded ed in  providing employment to women in order to achieve gender equality however, it failed miserably to provide a healthy environment for such employment.

Therefore, in a class action, brought by various NGO’s and social workers, finally the apex court brought this silence to an end. e nd. The court without hesitating in breaking its constitutional  boundaries (only to interpret law) formulated guidelines for f or the prevention of such incidents. These The se guidel guideline iness are known known as Vishakha guidelines.This guidelines.This was a welcome step by the SC where it finally provided the victims of such incidents a law through which they can seek  remedy.

This incident revealed the consequences to which a employed woman faces and the pressing need for protection by any other procedure in the lack of statute. The court therefore felt the need to find an alternative mechanism mechanism to deal with such incidents. incidents. These guidelines guidelines had the effect of protecting female liberty in the employment establishment so that they could feel an atmosphere of equality. The court ruled that violation of gender equality is violation of Right to life & liberty mentioned under Article 21. Along with the violation of Art. 21, the court also found gross violation of Article 14 & 15.

The court after a combined combined reading of Article Article 51(c) with Article 253 and Entry 14 of Union th

List mentioned in 7  Schedule found that in the absence of relevant statutes the court can draw inspiration from international law, treaties and conventions to resolve a problem.

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Therefore, the court after a deep interpretation of:

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Convention on the Elimination of all forms of Discrimination against Women (Article 11 & 24)



General recommendations of CEDAW in this context (Article 11, 22, 23, 24)



At the 4th W  World orld Conference on Women in Beijing, Govt. of India made an official commitment to set up a National Commission at every level and in every sector  that will look after Women’s omen’s Rights.

came up with Vishakha guidelines to prevent the taboo that was in the past without any remedy.

The court ruled that Gender equality & right to work with dignity is injured whenever there is a an any y in inci cide dent nt of Sexu Sexual al Haras Harassm smen ent. t. These These ri righ ghts ts ha have ve ga gain ined ed un univ iver ersal sal ac accep cepta tance nce therefore, interpretation of international covenants and agreements is must to formulate such guidelines.

Conclusion

Vishakha judgment is one of the most gifted pieces of law the court has ever enacted in its history since its inception. The court seeing the importance of the matter, came directly into the ground by breaking all the restrictions upon it by the constitution and laid down such guidelines which would ensure that no such act of harassment goes unpunished.

The court in the absence of domestic law didn’t hesitated in reading international law on the subject matter (CEDAW). The SC found authority for such reference in combined reading of  art. 253 read with entry 14 of Union List in Seventh Schedule.

The Vishakha judgment along with its importance also contains the rationality in the sense thatt it does tha does not over-p over-press ressuri urize ze the employ employer er in constru constructi cting ng redress redressal al mechan mechanism ism.. The  judgment has only directed what seems appropriate for employer in order to maintain the constitutional principles of equality and liberty. The judgment can never be termed as one where judiciary encroaches its boundaries irrationallyi.e. Judicial Overreach instead it is the  best example of judicial activism. Vishakha Guidelines & Triple T Talaq alaq Case Study

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Shayara Bano Vs Union Of India – Triple Talaq Talaq Equivalent citations: (2017) 9 SCC 1 Writ Petition (C) No. 118 of 2016 Petitioner: Shayara Bano

Versus Respondent: Union of India and others

with 1. Suo Moto Writ (C) No. 2 of 2015

In Re: Muslim Women’s Women’s Quest For Equality versus Jamiat Ulma-I-Hind 2. Writ Petition(C) No. 288 of 2016 Petitioner: Aafreen Rehman Versus Respondent: Union of India and others 3. Writ Petition(C) No. 327 of 2016 Petitioner: Gulshan Parveen Versus Respondent: Union of India and others 4. Writ Petition(C) No. 665 of 2016 Petitioner: Ishrat Jahan

Versus Respondent: Union of India and others 5. Writ Petition(C) No. 43 of 2017 Petitioner: Atiya Sabri

Versus Respondent : Union of India and others Date of Judgement: 2017.08.23 Bench: Jagdish Singh Khehar(CJ), Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit, S. Abdul Nazeer JJ.

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Background

The Muslim Law classifies Divorce into the following categories i.e. A. By the Death of the Husband B. By the Act of the Parties I. By the Husband 1. Talak   2. Tal alak ak-u -uss-su sunn nnat at i.

Ahsan

ii.

Hasan i. Talak-ul-Biddat

3. Ila (Vow (Vow of continence) continence) 4. Ziha Ziharr (Injurious (Injurious Comparison) Comparison) II. By the wife 1. Talak-e-T alak-e-Tafwid afwid (Delegated Divorce) III. by Mutual Consent 1. Khula (Rede (Redemptio mption) n) 2. Muba Mubarat(M rat(Mutual utual Freeing) Freeing) IV. by Judicial Process 1. Lian (Mutual (Mutual Imprecat Imprecation) ion) 2. Fask Faskh(Jud h(Judicial icial Annulment) Annulment)

All the above stated types of Divorce are valid in Islamic law however, it is Talak-ul-Biddat which is the issue of controversy. This is known as Tripe Talaq which was challenged before the SC in this case. Talak-ul-biddat is although banned in Shias. However, in Hanafi School is thought as sinful but is practiced by a large Muslim community who follow Hanafi school. In this type of Talaq the Husband does not follow the approved form of Talaq i.e. talaq-ulsunnat sun nat and he nei neithe therr wai waits ts for iddat  period   period nor to the abstention from sexual intercourse. This was an escape route developed by the Islamic patriarchal society to avoid their marriage.

In this form of Divorce husband repudiates his wife by three divorces in one sentence. The  biggest problem with this type of talaq is that it is one of irrevocable nature unlike its counterparts.

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This immediate appeal was filed in the apex court by ShayaraBano ShayaraBanoaa victim of this demonic demonic  practice. She claimed the enforcement of the Fundamental Rights mentioned under Article 14. In the mean-time there were numerous petitions challenging the same issue therefore, SC clubbed all the petitions in one and heard it. Various NGO’s and even union government was supporting the cause.

Issue 1. The validity of triple talaq. 2. Whether Triple Talaq Talaq is an a n essential religious practice?

Judgment The Supreme Court laid down this judgment on August 22, 2017 in 3:2 majority holding the  practice of Triple Talaaq  Talaaq  unconstitutional. The majority judgment was written by Justice  Nariman for himself and on the behalf of Justice Lalit, while Justice Joseph J oseph concurred by the majority opinion Chief Justice Kehar for himself and on behalf of Justice Nazeer wrote the minority opinion. While the majority upon lengthy discussion came to the conclusion that Triple Talaq alaq is  is not an essential religious practice but minority bench found this practice to be an essential religious practice.

Under Article 25 of the Constitution the state cannot take away the essential religious practice of a person. Therefore, if a practice which is arbitrary and not an essential religious practice it will be hit by the exception laid down u/a 25. Therefore, the whole issue was whether or not the practice is an essential religious practice of Islam.

Therefore, as per majority it was held that the Triple Talaqor Talaqor Talaq-e-biddat is is not protected  by the exception laid down in Article 25 i.e. the court c ourt found the said s aid practice not an essential element of Islamic religion. The court justified its point of view in the sense that although it si  practiced by the Hanafi School but it is considered sinful in it. Triple Talaq alaqis is against the basic tenets of Quoran and Quoran and whatever is against Quoran Quoranis is contrary to Shariat therefore, what is  is  bad  in theology cannot be good in law. The majority bench relied on its earlier   decision Shamim  Ara [1] which which held that this practice of Triple Talaq Talaq is against both theology

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and law and just because it is followed by a large number of people it cannot be validated. Therefore, such practice is declared unconstitutional and set aside.

Article 25 in it carries the right of every person to freely practice and propagate any religion of choice and such practice is only restricted in the context of the following exceptions:

1. Public Or Order  2. Health 3. Morality 4. Oth Other er Provis Provision ionss of Part Part III of the the Constit Constituti ution on Although the said practice has no relevance to the first three exceptions but the said practice is surely against other provisions of Part III namely Article 14. The said practice is in violation of  the Fundamental Right of equality since it is against the rights of women as they have no say in the declaration of divorce unlike in other religions. Nariman & Lalit JJ. held that the impugned  practice is a tool by which marital marital tie can be broken on whims of Husband Husband without any attempt of  reconciliation to save it. This form of Talaq therefore, is in violation of Article 14 and liable to be struck down by the courts.

What is an essential religious religious practice? practice? It depends on the background, background, history and tenets of the religion. If some practice is not prohibited then it does not necessarily mean that such practice is an essential religious practice. Essential religious practices are those on which the religion is founde fou nded d upo upon. n. Ess Essent ential ial rel religi igious ous are tho those se whi which ch are fun fundam dament ental al to the pro profes fessio sion n and  propagation of the religion. religion. If taking away of a practice causes a substantial substantial change in the religion then such practice can be called as ‘an essential religious practice.’ Only such practices are  protected in Article 25(1). The usurpation of religious practices through state intervention will result in violation in rights mentioned in Article 25(1) & not with the usurpation of circumstantial and non-essential practices. The fact that majority of Islamic countries have done away with the said practice also reflects that the said practice is not one which will be called as an essential religious practice.

However, Justice Khehar, writing the minority opinion held that such practice is an essential religious element of Islam. The Minority bench of the court justified this stance on the ground that this practice is followed by a large population of people. Since this practice has the sanction

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of religious denomination and followed by an overwhelming majority of Muslim population, the said practice is declared to be constitutional and an essential religious practice.

Justice Kehar was, as far as the exceptions mentioned in Article 25(1) of the Constitution, of the opinion that the impugned practice is not violative of any of these exceptions since Shariat or  Muslim Personal law is not based on any state legislative action

Critical Analysis The Triple Talaq judgment is widely appreciated throughout the jurisdictions as a protection shield against the social evil such as this practice promoted. The majority bench on the face of it criticized the government for not making relevant laws to prohibit such a regressive practice. This act allowed the husband to end the marital tie on his whims and fancies, thereby making the life of the wome women n hell. The Muslim women have since many years demanding demanding the prote protection ction from such a regressive and bad practice and finally it was the apex court which gave them the appropriate remedy.

Justice Nariman at the outset said that as soon as he would find any violation of Fundamental Right, he will strike down the practice. There was no question that the said practice was an essential religious practice or notsince majority of Islamic nations have already banned the  practice & in India only only Hanafi School practices practices it. Therefore, it cannot cannot be said that the practice is one of religious importance. The majority finding the said practice in violation of Article 14 as well as of the exceptions laid down in Article 25(1) struck down the regressive act with 3:2 majority.. The bench observed that merely because the practice is widespread and continuing from majority time immemorial it cannot be held as an essential religious practice. Hinduism also after finding Sati Prath Pratha areg regres ressiv sivee rem remove ovedit dit fro from m the rel religi igion. on. Sat Satii was als also o practi practiced ced wid widesp esprea read d and  practiced since time immemorial. immemorial. Therefore, the court arrived at a very correct correct judgment.

The majority started its judgment by the phrase “what “ what is bad in theology cannot be good in law”. law ”. This statement makes it clear the stance of the majority bench on the impugned act. One does not need to dwell down into the details and should understand that if Triple Talaqhad Talaqhad been a essential religious practice of Islam then in that case it would not have been banned in almost all Islamic nations. Further, the said practice is only practiced in Hanafi School who itself considers it sinful. Therefore, the majority bench correctly held such practice as unconstitutional.

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The minority judgment written by CJ Kehar on the behalf of himself and Justice Nazeer was flawed in every aspect. The hon’ble judges should have considered that fact that,  Firstly, an essential religious practice would not have been banned by the Islamic nations.   Secondly, an essential religious practice cannot be stated as sinful by the religion itself.  itself.   Thirdly, merely because one community of the religion follows the practice, then such    practice cannot be termed as an essential religious. The minority bench ignored the atrocities that are committed by the said practice. It is the duty du ty of th thee co cour urts ts to di disp spen ense se ju justi stice ce an and d th thee co cour urts ts sh shou ould ld no nott be de dete terre rred d by me mere re technicalities in dispense justice. The minority judgment is per is  per incuriam incuriam as  as the judges said that however bad the practice be, if it is an essential practice it cannot be struck down. The whole reasoning of the minority bench is irrational, unfair and unjust. If the two judges have also ruled in the favor of majority the impact would be altogether different. However, Howev er, thanks thanks to the justifi justified ed reason reasoning ing provided provided by the major majority ity bench India finally did away with the regressive and backward practice of Triple Talaq alaqor or Talaq-e-biddat.

Conclusion After Aft er so man many y abo abortiv rtivee att attemp empts ts fin finall ally y, a pet petiti ition on file filed d by Shaya ShayaraBan raBano, o, Ishra Ishratt Jaha Jahan, n,  Aafreen Rehman, Gulshan Gulshan Parveen was successful in bringing justice to many unheard  unheard voices of India. The majority decision restored the trust that the common people possesses for the institution of Judiciary. The judgment proved that the democratic notions such as equality, liberty etc. would not bend down against any philosophy even if it is a religion. The courts finally brought justice to those women who have been a victim of Triple Talaq. Men Talaq. Men after  enjoying and extracting pleasure out of women used to abandon them easily by the virtue of  Triple Talaq. Now,  Now, after the pronouncement of the judgment the situation has changed and made such incidents impossible.

 No husband can now abandon his wife by ending marital tie on his whims and fancies. fa ncies. The court ensured that the ideas of equality especially gender equality is not a mere theoretical ideology. However, the opinion of minority bench worries the nation. If the Chief Justice of  India is giving primacy to practices such as Triple Talaq ignoring Talaq ignoring the widespread atrocities, then there is some serious rethink required by the Judges of the apex court.

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