11 Landmark Judgments By The Indian Supreme

Court In Recent Times

Admin
July 7, 2015
LEGAL LOOK
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On the 15th of April, 2014, the Supreme Court of India (in an

unexpected show of decency) decided to recognise the
transgender community as a third gender, availing them of basic
human rights of education, jobs and voting. The landmark
judgement was met with a roaring approval from all liberal
corners of the nation. Given the 377 debacle which criminalized
unnatural sex, thereby criminalizing the LGBT community as a
whole, just a few months prior to that, it was heartening to see
such a forward-thinking judgement, even if it was in polar
opposition to their own thinking by 377s definition. Moreover, as
recently as November, there is now a bill in parliament that is
pushing to lower the juvenile justice age allowing minors above
the age of 16 to be tried in courts as adults, for committing
heinous crimes.

In light of all of these seemingly contradictory judgments,

Homegrown felt compelled to dig deeper in the hopes of
answering one questionare we progressing or are we regressing
as a society? Well, you can keep score yourself. We tallied up
some of the more recent landmark judgments by our court that
have affected the humanitarian nature of this nation.

I. Om Prakash Vs Dil Bahar (2006)

What: A rape accused could now be convicted on the sole

evidence of the victim, even if medical evidence did not
prove rape.

Case Speak: The victim, six months pregnant, was in court because her husband was
facing challan proceedings. The accused was a relative and had come to attend the
same. Finding her in isolation outside the Zilla Parishad, the accused tried to rape her.
However, she raised an alarm and the accused was assaulted by the locals and handed
over to the police. Although no evidence of rape was found, the accused was given a
seven-year sentence based on the statement of the victim and eyewitness accounts.
A statement from the court read, It is settled law that the victim of sexual assault
is not treated as accomplice and as such, her evidence does not require
corroboration from any other evidence including the evidence of a doctor. In
a given case even if the doctor who examined the victim does not find sign of
rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In
normal course a victim of sexual assault does not like to disclose such
offence even before her family members much less before public or before
the police. The Indian woman has the tendency to conceal such offence
because it involves her prestige as well as the prestige of her family. Only in
few cases does the victim girl or the family members have the courage to go
before the police station and lodge a case. In the instant case, the suggestion
given on behalf of the defence that the victim has falsely implicated the
accused does not appeal to reasoning. There was no apparent reason for a
married woman to falsely implicate the accused after scatting her own
prestige and honour.

Homegrown Verdict: The ruling had both positives and negatives. Rapists deserve
the worst of the law, and the ruling meant that escape for them has become more
difficult. The ruling was based on the fact that the victim of the rape is not an accomplice
to the crime and her statement should be relied upon. The need for corroboration arises
only in cases where the court cannot place implicit reliance on the statement of the
prosecutrix.

While this may hold true, one must also understand that the law can be wrongly misused
with terrible consequences. The fact that a person can be convicted even if medical
reports suggest otherwise makes it that much easier for false cases to be lodged. The
judges of the Supreme Court also simply assume that the Indian woman is pure and
noble and can do no wrong.

That being said, it is still a necessary and progressive step forward in a nation where
women have borne the pain brunt of victimization for far too long. This might be
considered a tipping of the scales in favour of a community who have had them tipped
against them for far too long, so perhaps it is about restoring a balance for the court.
Besides which, its clear rapists in this country (and plenty of educated people too) need
their thinking on this issue rewired.
 Jail Sentence

II. The Anchorage Case (2011)

What: Restoration of the conviction and sentence of six-

year rigorous imprisonment imposed on two British
nationals who were acquitted by the Bombay High Court in
a pedophilia case.

Case Speak: Two Britons, Duncan Grant and Allan Waters, ran the Anchorage Shelter
Home in Colaba, Mumbai, where they sexually abused children for years. In 2001,
working on a tip-off, Childline NGO gathered evidence and filed a case against the two
British nationals. The sexual abuse of the boys at Anchorage Shelters was also brought
to the notice of Advocate Ms. Maharukh Adenwalla who works on issues of child rights
and she brought the same to the attention of the Bombay High Court. After the facts
became public, the two British nationals absconded but were made to face trial after a
lengthy extradition process.
After taking all the facts, evidence and witness accounts, the sessions court convicted
them under sections 120 B, 107, 373 and 377 IPC and sentenced Grant and Waters to
six years imprisonment and a fine of 20,000 pounds each. However, they challenged this
in the Mumbai High court, and in a shocking judgement, were acquitted of all charges.
Finally, the case went to the Supreme Court, which overturned the High courts
judgement (uncommon to say the least) and restored the original sentence, thereby
convicting the paedophiles. The judges, while passing the judgement, rightly said, A
deterrent punishment is being imposed in order to help wipe out the name of
India from the map of sex tourism. Let paedophiles all over the world know
that India should not be their destination in the future. Children are the
greatest gift to humanity. The sexual abuse of children is one of the most
heinous crimes.

Homegrown Verdict: The case achieved widespread media coverage, which

stressed on the fact that child abuse is rampant behind closed doors in India. More often
than not, the abusers are in complete control of the victims. They are vulnerable, scared
and lack support. In such a time, this judgement (albeit, even with the High Court
blemish) gave hope to NGOs and other similar organisations that justice still prevails in
this country.

III. The Nirbhaya Case (2012)

 What: 4 out of 5 rape accused received the death
sentence and as a result of this case the rape law was
amended to go beyond penile-vaginal intercourse. The
new definition penalizes penetration of any orifice of the
woman with any part of the mans body or with any
object.

Case Speak: This hardly requires retelling given the freshness of it in the nations
collective consciousness, but here it is anyway. A young girl was returning home with a
male friend after watching a movie. They boarded a bus and soon figured out that
something was wrong. The six people on board, including the driver knocked the boy
unconscious with an iron rod and then raped her one at a time. They shoved an iron rod
in her vagina, severely damaging her intestines, abdomen and genitals. Finally, they
threw the boy and the woman out of the bus, and drove away.

The woman was rushed to the hospital and the men were arrested within 24 hours.
Eventually, the woman succumbed to her injuries, and the men immediately went on
trial. While on trial, one of the accused committed suicide in jail. The remaining five were
subsequently charged for rape and murder. The four adults were granted a death
penalty, while the minor was sent to a reform facility for three years.

Homegrown Verdict: The case received media coverage like none other. The
aftermath was that six new fast track courts were created to hear rape cases, which
means that the rape cases do not remain stagnant in courts for far too long. Various laws
were passed and amendments were made, which included a mandatory minimum
sentence of 20 years in case of a rape as well as the widening of the definition of rape.
The impacts of the latter are already being felt as is evident with the Tarun Tejpal rape
case.

Although various changes were made, one might argue that theres still a lot that needs
to be addressed. The fact that marital rape is still not considered a crime is a serious
issue in our country. Another matter that needs addressing however, is the fact that we
refuse to foresee things, and only act after a heinous crime has been committed and
under immense public scrutiny. Rape has been rampant in India for years. Why did it
take a brutal murder for these laws to be passed? Surely they could have been
discussed and passed years before? We must now make sure that the laws are
stringent and the punishment for a convicted rapist should be nothing short of death.
 Death Sentence for the Rapists, Nirbhaya Case; Image Source Independent.co.uk

IV. Tamil Nadu Vs Suhas Katti (2004)

What: The first case involving conviction under the

Information Technology Act, 2000, related to the posting
of obscene messages on the Internet.

Case Speak: The case was related to the posting of obscene and defamatory
messages about a divorcee woman in a Yahoo messenger group. The accused, said to
be a family friend of the victim, wanted to marry her. But she ended up marrying
someone else, much to his dismay. After she got divorced, he tried to woo her again,
only to be rebuffed. Incensed, he started harassing her and posting her number on
messenger groups, which led to plenty of lewd and annoying phone calls to the victim.
Finally, the victim decided to file a complaint under the Information Technology Act.
Although the defence put a good case, the Additional Chief Metropolitan Magistrate, on
the basis of the available witnesses and the other relevant evidences held the accused
guilty under section 469 and 509 of Indian penal code and section 67 of the Information
Technology Act 2000. The accused was convicted and sentenced in accordance with the
aforementioned sections (fines and imprisonment).

Homegrown Verdict: The impact of the case was far reaching. The internet had
only started to emerge hugely within the Indian context and the laws for it were hardly
stringent. However, the IT act and its implementation in this case helped both the courts
and the public: it set a benchmark for the courts, inspired people and gave them strength
to lodge cases in case they were harassed on the internet.

Cyber Defamation

V. Section 377 (2013)

What: Criminalisation of unnatural sex which includes

gay sex, sex with animals, sex with minors and fellatio.

Case Speak: The law, established in 1861, was enforced to criminalise sexual
activities that were against the order of nature, which at that point included homosexual
activities. What is little known, however, is that it extends to any sexual union involving
penile insertion. Thus, even consensual heterosexual acts such as fellatio and anal
penetration may be punishable under this law. In 2009, in a landmark judgement the
Delhi High Court scrapped section 377, citing it unconstitutional with respect to sex
between consenting adults. However, the celebrations, and respite, were short-lived
when in a bizarre turn of events the judgement was overturned by the Supreme Court of
India. It ruled that Section 377 in the Indian Penal Code will continue making gay sex
irrespective of age and consent an offence punishable with a sentence up to life
term and put the onus on Parliament to consider the desirability and propriety of deleting
Section 377 from the statute book or amend it.

Homegrown Verdict: Although there have been no convictions under 377 in the last
20 years, nobody can deny that the judgement was regressive. The law has been used
on more occasion than one to harass sex workers and homosexuals alike. While people
go on about maintaining the culture of India, they conveniently forget that the rule in itself
was enforced by the British, who themselves got rid of the law in 1967.

The recent developments make this judgement seem even more bizarre in hindsight.
The Supreme Court has recognised the transgender sex and given them a third sex
status, but according to 377, if they indulge in sexual activity of any kind they can be
arrested. So its all right to give them recognition, but lets deprive them of their basic
right to engage in sexual activity by choice? The law is ambiguous and archaic, and
heavy criticism from within the country as well as outside it is testament to that. Like it is
said, it is not a matter of sex, it is a matter of curbing human rights which is not what a
democracy does.

Image Source Tinpahar.com

 VI. NOTA (2013)

What: Right to negative vote.

Case Speak: On October 14, the Supreme Court recognised the right to negative vote
for the electorate in the country. The voters will now have a None of the Above option if
they dont feel that the candidates deserve a vote. Negative voting will lead to systemic
change in polls and political parties will be forced to project clean candidates. If the right
to vote is a statutory right, then the right to reject candidate is a fundamental right of
speech and expression under Constitution, the court said.

Homegrown Verdict: NOTA, as of now, is nothing but a hoodwink. It is just a right

to register a negative option, but doesnt have any effect on the final result. Think of it
this way Out of a 100 votes, if 99 are NOTA votes, the candidate with one vote will
come into power, rendering the 99 votes useless. A detailed analysis of NOTA can be
found here: http://homegrown.co.in/the-youth-vote-is-nota-the-right-choice-for-
you/

NOTA. None of The Above

VII. Re-opening dance bars (2013)

What: The Supreme Court on July 16 gave its go-ahead to

the reopening of Dance Bars in the maximum city and
elsewhere in the state.
Case Speak: On 15th of August, 2005, Home Minister RR Patil announced that dance
bars would be shut all across the state. He stated that the dance bars were corrupting
the moral fibre of the youth, and that dance bars were creating havoc in Maharashtra.
Because of the ban, 75,000 girls became unemployed, and although a rehabilitation
program was in place, it wasnt implemented, and many of the girls left the state or had
to resort to prostitution. Eight years later, the Supreme Court finally struck down the ban.
The Supreme Court had taken up the case after the state government contested the
2006 Bombay High Court order that the Act prohibiting dancing violated the right to carry
on ones profession under Article 19 of the Constitution. The HC also held that banning
dances in some establishments while permitting them in others (like five star hotels and
pubs) was contrary to the rule of equality.

Homegrown Verdict: Despite the fact that the ban had been lifted, the police has
not handed the licenses to the bar owners, stating that theyre waiting for an order from
the state government. To counter the verdict, the state government is working on an
ordinance to ban dance bars. Another option being considered is making getting licences
more difficult by adding stringent conditions and making the annual license fee
unaffordable. While the claims that some dance bars lead to trafficking and prostitution
may be valid, one can also argue that a majority of the girls make an honest living by
dancing, and taking that form of employment without proper means for rehabilitation
organized by the government is incredibly unjust. If the state government had its way
and the bars dont re-open, it must ensure that the rehabilitation of the dancers, which as
promised, is fulfilled.
 Mumbai Dance Bars Reopen; Image Source AFP

VIII. Social Media (2013)

What: In view of public outrage over people being

arrested for making comments or liking posts on
Facebook, Centre had on January 9 issued advisory to all
states and UTs asking them not to arrest a person in such
cases without prior approval of a senior police officer.

Case Speak: On May 16, the Supreme Court, while delivering its verdict on a plea by
Shreya Singhal who had petitioned the court against the arrest of an activist Jaya
Vindhyalaya, under provisions of the IT Act on a complaint filed by an Andhra Pradesh
MLA, ruled that no person would be arrested under Section 66A of the IT Act for posting
objectionable comments on social networking websites without prior approval from an
officer of the Inspector General of Police-rank.

Homegrown Verdict: This ones quite simple, actually. The arrests of the girls for
posting Facebook statuses sparked massive outrage throughout the country, making the
Supreme Court issue the advisory. While common sense prevailed in this case, the law
itself is pretty ambiguous. The apex court is still examining the constitutional validity of
section 66A of the IT Act and what exactly could be regarded as grossly offensive
information, the punishment for which is a maximum imprisonment of three years.

Protests against Jaya Vindhyalas arrest

IX. Cheap cancer drugs (2013)

What: The Supreme Court rejected a patent plea by Swiss

drugmaker Novartis AG for cancer drug Glivec, boosting
the case for cheaper drugs for life-threatening diseases.

Case Speak: In 2006, Swiss-based company Novartis applied for a patent, stating
that the substances used in the drug were an invention. They wanted exclusive rights for
manufacturing Glivec and to restrain Indian firms from making generic medicine. After a
seven-year-long battle, the Supreme Court finally delivered its judgement, dismissing the
plea.

We certainly do not wish the law of patent in this country to develop on the
lines where there may be a vast gap between the coverage and the
disclosure under the patent; where the scope of the patent is determined not
on the intrinsic worth of the invention but by the artful drafting of its claims
by skilful lawyers, and where patents are traded as a commodity not for
production and marketing of the patented products but to search for
someone who may be sued for infringement of the patent, the bench said.
Homegrown Verdict: The judgement is remarkable in the sense that it provides
massive relief to over 28 lakh cancer patients in India. Consider this: a one-month dose
of Glivec costs around Rs 1.2 lakh, while generic drugs, manufactured by Indian
companies, costs Rs 8,000. A patent would have given Novratis a 20-year monopoly on
the drug, meaning that it would have been impossible for the average Indian to find an
affordable cancer drug in that period.

Protests against Novartis

X. Curbing the sale of Acid (2013)

What: The court said that acid should be sold only to

people who show a valid identity card. Buyers will also
have explain why they need the chemical and sales will
have to be reported to the police.

Case Speak: After considering plenty of acid attack cases and the change.org
petitions, the Supreme Court finally decided to act and ordered the federal governments
to regulate the sale of acid in the country. The court said that acid should be sold only to
people who provide a valid identity card.
Buyers will also have explain why they need the chemical and sales will have to be
reported to the police. We direct the chief secretaries of all states and the administrator
of the Union Territories to comply with the direction given in the order on July 18 and
frame rules in tune with model rules framed by Centre to regulate the sale of acid at the
earliest and possibly by March 31,2014, the bench said.

In addition to that, they also asked all chief secretaries to file a response on providing
free-of-cost treatment, including plastic surgery, to acid attack victims.

Homegrown Verdict: The Supreme Court ruling has been welcomed with
enthusiasm. India has close to a thousand acid attacks every year. These attacks
disfigure women, destroy their life and most of them either suffer from chronic
depression, live in isolation or commit suicide. The regulation of sale of acid in
Bangladesh saw a significant decline in acid attacks, and fingers are crossed for the
same to happen in India.

Acid attack victim Laxmi, right, with other victims after an Indian Supreme Court hearing
on the retail sale of chemicals; Image Source: news.msn.com

XI. Lily Thomas vs Union of India (2013)

What: Any Member of Parliament (MP), Member of the

Legislative Assembly (MLA) or Member of a Legislative
Council (MLC) who is convicted of a crime with more than
 two year sentence, will be disqualified as an elected
representative on the date of conviction.

Case Speak: The Supreme Court of India, in their judgement of the Lily Thomas v.
Union of India case ruled that any Member of Parliament (MP), Member of the
Legislative Assembly (MLA) or Member of a Legislative Council (MLC) who is convicted
of a crime with more than two year sentence will be disqualified as an elected
representative on the date of conviction. The verdict sent waves of panic amongst the
government, as many of the MPs have pending criminal cases against them. In an
attempt to overturn this decision, the Representation of the People (Second Amendment
and Validation) Bill, 2013, was introduced into the Rajya Sabha on 30 August by Law
Minister Kapil Sibal; by the proposed amendment, representatives would not be
disqualified immediately after conviction. The Indian government also filed a review
petition, which the Supreme Court dismissed.

Homegrown Verdict: The effect of the ruling was immediate: three MPs Rasheed
Masood, Lalu Prasad Yadav and Jagdish Sharma, all since convicted, have lost their
Parliament membership. According to the Association of Democratic Reforms, as many
as 72 sitting MPs face criminal charges and could be disqualified if convicted for over
two years. If that is the case, one can hope that the dream of Clean Politics might not
be that far-fetched, after all?