Section 66A of the Information Technology (IT) Act, 2000

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Context:

  • In 2015, the Supreme Court struck down Section 66A of the Information Technology (IT) Act, 2000, as unconstitutional in Shreya Singhal v. Union of India.

Section 66A of IT Act:

  • Section 66A of IT act, serves as an example of the positive deterrents applied by the government to stop the use of right to freedom of speech, to cause public unrest.
  • The section can come effective to punish the people who plot to create unrest in the society, by spreading false news on the social media, as our nation has many gullible citizens, who tend to speculate without thought and can be brainwashed easily.
  • On the other hand, such an act cannot be thought to be a panacea for all such problems, as it can also be used by some people to create fear among the society, so that no one will oppose any of their decisions in the future.
  • The case of 2 girls who posted a comment on social media against a particular party, can be taken as an example for this case. The harassment they faced for just one comment cannot be said to be fair, considering the fact that their act was not inflammatory.
  • The need of the hour is, that the government should omit the vagueness in the section regarding the acts, which are to be considered punishable. All such reports which are filed under this section should be dealt with on case to case basis, with adequate discretion, so as to not harass them before the consequences materialize.
  • A random complaint by anyone, about any misuse of freedom of speech should not be taken enough to arrest the persons, but should be followed by proper investigation to assess the scale of effect it has on the society.

Section 69A of IT Act:

Section 69A of Information Technology Act, 2000 provides for blocking of websites and Uniform Resource Locators(URL’s) in the interest of the sovereignty and integrity of India, defence of India, security of the state, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence relating to the above. But the lack of transparency in process leading to blocking of such websites is an area of concern.

 

SC decision:

Supreme court in Shreya Singhal Vs Union of India case had nullified the Section 66A but upheld the constitutionality of Section 69A on the grounds that there are sufficient internal safeguards and reasonable procedures available within Section 69A. Those safeguards are:

  1.  Intermediaries (those who host articles like Google, Facebook etc.) have to be given a chance to be heard as a right.
  2. If the original originator of a particular article is found, he/she also must be given a hearing.
  3. Above two can be circumvented if a court itself passes an order to block websites or URL’s.

Given the nature of security concerns that internet information can create like the exodus of north east people from south India in 2013, organizing riots through internet based campaigning etc. it is very important government has a power to exercise blocking of content, thus Section 69A is necessary. But at the same time more transparency clauses has to be brought into the IT Act if required and the presence of free media, active judiciary and vocal civil society groups are enough deterrent on any excess of government.

Application of Section 66A section continues unabated

  • The police in Muzaffarnagar, Uttar Pradesh, had arrested and detained 18-year-old Zakir Ali Tyagi in October 2017 under Section 66A — for posting some comments on Facebook.
  • Media outlets have reported other instances where Section 66A has been invoked by the police.

Related Questions:

  • Do you think the Section 69A of the I.T. Act is unconstitutional? Critically comment. (200 Words)
  • Section 66A of the Information Technology Act is a necessary deterrent and cannot be cast away on the apprehension that it would be misused to affect the freedom of speech and expression. Do you agree with this view? Critically comment. (200 Words)
     

Recent Court Judgement for Women

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  • Sabrimala Temple Entry Case : SC declares restriction on women in Sabrimala temple unconstitutional.
  • Haji Ali Dargah Case : Women were not allowed inside Dargah. SC observed that ‘exclusion’ is practised by both Hindus and Muslims and the problem needs to be addressed. Dargah Trust conceded before the court that it had resolved to allow women to enter the sanctum sanctorum of the dargah at par with men.
  • Triple Talaq Case : SC declared triple talaq unconstitutional and anti-Quran. Constitution Bench held that Islam cannot be anti-Quran and Triple talaq is against the basic tenets of the Holy Quran, and consequently, it violates Shariat.
  • Goolrokh Gupta Case : SC has intervened with the Parsi elders to allow Goolrokh Gupta, a Parsi woman, who married outside her faith, to pray at the Tower of Silence for her departed father.
  • Female Genital Mutilation Case : SC has also referred to a Constitution Bench the question whether the practice of female circumcision or khafz, prevalent in the Dawoodi Bohra sect, amounts to female genital mutilation and is a violation of women’s right to life and dignit

AADHAR : SC Final Verdict

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The Supreme Court, in a majority opinion, upheld Aadhaar as a reasonable restriction on individual privacy that fulfils the government’s legitimate aim to provide dignity to a large, marginalised population living in abject poverty.

 

Observations

  • The Constitution does not exist for a few or minority of the people of India, but ‘We the People’.
  • Aadhaar is a document of empowerment. An unparalleled identity proof. A document that cannot be duplicated, unlike PAN, ration card, and passport.
  • Technology had become a vital tool for ensuring good governance in a social welfare state. Schemes such as the PDS, scholarships, mid-day meals and LPG subsidies involve a huge amount of money, and fool proof Aadhaar helped welfare reach the poor.

 

Constitutionality

  • Majority opinion upheld the constitutionality of Aadhaar.

 

Privacy

  • Aadhaar is a reasonable restriction on individual privacy.
  • The Supreme Court quashed or read down several provisions in the Aadhaar Act in order to de-fang any possibility of the state misusing data.
  • Court held that authentication records should not be retained for more than six months. It declared the archiving of records for five years as bad in law.
  • It also prohibited the creation of a metabase for transactions.
  • It read down Section 33 (1), which allowed the disclosure of Aadhaar information on the orders of a District Judge. This cannot be done now without giving the person concerned an opportunity to be heard.
  • The Supreme Court struck down Section 33(2), which allowed the disclosure of Aadhaar information for national security reasons on the orders of an officer not below a Joint Secretary.

 

Arguments

  • The Supreme Court said neither were individuals profiled nor their movements traced when Aadhaar was used to avail government benefits under Section 7 of the Aadhaar Act, 2016.
  • The statute only sought minimal biometric information, and this did not amount to invasion of privacy.
  • Authentication transactions through Aadhaar did not ask for the purpose, nature or location of the transaction.
  • The collection of personal data and its authentication was done through registered devices. The Authority did not get any information related to the IP address or the GPS location from where authentication was performed.

 

Passing as Money Bill constitutional:

  • The SC upheld the passage of the Aadhaar Act as a Money Bill.

 

Arguments

  • Section 7 of the Aadhaar Act requires authentication by Aadhaar card if beneficiaries wanted to access subsidies, benefits and services.
  • Since all these were welfare measures sought to be extended to the marginalised sections, a collective reading would show that the purpose is to expand the coverage of all kinds of aid, support, grant, advantage, relief provisions, facility, utility or assistance which may be extended with the support of the Consolidated Fund of India with the objective of targeted delivery.
  • Aadhaar was vital to ensure that government aid reached the targeted beneficiaries, and hence, the Act was validly passed as a Money Bill.

 

Aadhar linkages

  • The majority opinion upheld the PAN-Aadhaar linkage, but declared linking Aadhaar with bank accounts and mobile SIM cards unconstitutional.
  • The Election Commission may resume the voluntary linking of voter identification cards with the Aadhaar database, given that, prima facie, the judgment by the Supreme Court’s five-judge Bench does not have any adverse remarks on the issue.

 

Children

  • The court insulated children from the Aadhaar regime.
  • The card was not necessary for children aged between six and 14 under the Sarva Shiksha Abhiyan as right to education was a fundamental right.
  • Statutory bodies such as the CBSE and the UGC cannot ask students to produce their Aadhaar cards for examinations like the NEET and the JEE.
  • Permission of parents and guardians was a must before enrolling children into Aadhaar.
  • Once they attained the age of majority, children could opt out of Aadhaar.

 

Section 57

  • The Supreme Court held the portion, which gives a free hand to private entities to demand Aadhaar from individuals, unconstitutional.
  • Section 57 allows not only the state but also any body corporate or person or private entity to demand Aadhaar from citizens for the purpose of identification.
  • This provision had offered statutory support to mobile companies and private service providers to seek individuals’ Aadhaar card for identification purposes.

Arguments

  • A mere contract between a private entity and an individual was not enough to demand Aadhaar from the latter.

 

Directions to the Government

  • The court further directed the government and the Unique Identification Authority of India (UIDAI) to bring in regulations to prevent rightfully entitled people from being denied benefits.

 

Significance

  • The resident has been recognised as being at the heart of the project, and they have gained new rights that help them assert their ownership over their data.
  • It will bolster good governance, and the delivery of services to the poorer sections of society.

 

Concerns

  • Lakhs of people would continue to be denied their universal rights for not having Aadhaar.
  • The majority opinion in the Aadhaar verdict is silent on deleting biometric data already collected by phone companies.
  • The judgment would help little in protecting the right to privacy because the Centre had privatised or outsourced many of its responsibilities. Such companies would have access to Aadhaar data.
  • The Supreme Court ruling that Aadhaar is not mandatory for opening bank accounts could affect online opening of accounts.
  • The bankers say that since there are no other officially valid documents apart from Aadhaar for use digitally, accounts cannot be opened online if the customer decides not to share the number.

 

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AFSPA : Impact of SC Ruling

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Context:

  • In a July 2016 judgement, SC ended the immunity provided by the Armed Forces (Special Powers) Act of 1958 (AFSPA).
  • A Special Bench monitoring the CBI investigation into the alleged extrajudicial killings in Manipur will hear a petition filed by 355 Army officers in the Supreme Court, alleging “persecution” by agencies such as the CBI for doing their duty in the insurgency-hit areas of Jammu and Kashmir and the north-eastern States.

ias4sure.com - AFSPA Impact of SC Ruling

 

 

What is the dilemma?

  • In a July 2016 judgement, the Bench of Justices Lokur and Lalit ended the immunity provided by the Armed Forces (Special Powers) Act of 1958 (AFSPA). The judgment declared that “there is no concept of absolute immunity from trial by a criminal court”.
  • Post the judgement, an “extraordinary circumstance” is prevailing over armed forces personnel fighting in the insurgency-hit areas and the nation’s borders. They are plagued by doubts whether performing their duty to fight enemies would expose them to prosecution and land them in jail.
  • The petition said the Supreme Court’s orders and the resultant CBI action against Army personnel have made soldiers jittery.

 

Why immunity is needed?

  • The on-going situation is demoralising the officers and troops deployed in field areas and fighting in counter-terrorism and counter-insurgency operations in Jammu and Kashmir and north-eastern States.
  • Lack of immunity from prosecution would have a demoralising impact on the security forces
  • The Indian Army has to, in given circumstances, take quick decisions which cannot be dissected later on like an ordinary murder appeal. The scope of judicial review against active military operations cannot be on the same parameters as in other situations. 

 

Arguments against immunity:

  • Reports of blatant misuse, or rather abuse, of the law by the armed forces have flowed through the years, especially in the Northeast and Kashmir.
  • Impunity is to address any allegation of use of excessive or retaliatory force beyond the call of duty.
  • It is the requirement of a democracy and the requirement of preservation of the rule of law and the preservation of individual liberties that it does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the state. The law is the same for both and is equally applicable to both.
  • Given this history of violence and bloodshed trailing AFSPA, the judiciary’s attempt to make it less draconian and more accountable is a step in the right direction.
  • Judicial review tears down the cloak of secrecy about unaccounted deaths involving security forces in disturbed areas and serves as a judicial precedent to uphold civilian and human rights in sensitive areas under military control.

LGBT : Section 377 Timeline

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Section 377

  • Section 377 of IPC – which came into force in 1862 – defines unnatural offences.
  • It says, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.

 

2009 Judgement (Delhi HC)

  • Following a PIL by Delhi-based Naz Foundation, an NGO fighting for gay rights, the Delhi HC on July 3, 2009, struck down Section 377 of the IPC, holding that it violated the fundamental rights of life and liberty and the right to equality as guaranteed in the Constitution.
  • The HC held that the Section 377 denied dignity to an individual and criminalised their core identity on the basis of their sexuality adding that it also violated Article 14 by targeting homosexuals as a class.

 

2013 Judgement (SC)

  • The Supreme Court reversed the 2009 HC verdict in December 2013 and upheld the constitutional validity of Section 377 of IPC, while giving the power to the legislature to formulate a law on homosexuality.
  • It observed that only a minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years, less than 200 persons have been prosecuted for committing offence under Section 377.

 

2014 order (Transgenders)

  • In the April 2014 verdict, hailed by gender rights activists, the apex court directed the government to declare transgenders a ‘third gender’ along with male and female.
  • It also asked the Centre to include them in the OBC quota.
  • Underlining the need to bring them into the mainstream, the verdict by a bench of Justices KS Radhakrishnan and AK Sikri said transgenders should have all rights under the law, including marriage, adoption, divorce, succession, and inheritance.
  • The Transgender Persons (Protection of Rights) Bill, 2016 was a result of this order.

 

2017 verdict on Right to Privacy (SC) (Puttuswamy judgement)

  • In August 2017, the Supreme Court, in a landmark verdict, declared right to privacy a fundamental right, ushering in hope for the gay and LGBT community.
  • The apex court had concluded that privacy included at its core the preservation of personal intimacies and that sexual orientation was an essential attribute of privacy.
  • Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.
  • Equality demands that the sexual orientation of each individual in society must be protected on an even platform.
  • The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.

 

2018 Sc Verdict: Section 377 unconstitutional

  • A five-judge Constitution Bench of the Supreme Court decriminalised homosexuality, with a prayer to the LGBTQ community (Lesbian, Gay, Bisexual, Transgender and Queer) to forgive history for subjecting it to brutal suppression.
  • Bench unanimously held that criminalisation of private consensual sexual conduct between adults of the same sex under Section 377 of the Indian Penal Code was clearly unconstitutional.
  • Section would apply to “unnatural” sexual acts like bestiality. Sexual act without consent continues to be a crime under Section 377

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Adultery : Section 497 of IPC

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Meaning of Adultery: voluntary sexual intercourse between a married person and a person who is not their spouse.

 

Petition:

  • Drop adultery as a criminal offence from the statute book.
  • The petition challenges the validity of Section 198 (1) and (2) of the Code of Criminal Procedure which deems that only a husband can be an aggrieved party in offences against marriage like adultery and only he can go to court.

 

Supreme Court observations:

  • The dusty Victorian provision of adultery in the Indian Penal Code treats a married woman as her husband’s “subordinate.”
  • Time has come when the society must realise that a woman is equal to a man in every respect.

 

Section 497:

  • Section 497 of the IPC mandates that “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting the offence of rape, is guilty of the offence of adultery and shall be punished.”
  • Section 497 is a kind of “romantic paternalism,” which stemmed from the assumption that women, like chattels, are the property of men.
  • Section 497 gave husbands the exclusive right as an aggrieved party to prosecute the adulterer in a case involving his wife, a similar right has not been conferred on a wife to prosecute the woman with whom her husband has committed adultery.

 

Wife has no right to prosecute her husband:

  • The provision does not confer any right on the wife to prosecute her husband for adultery. The law also does not take into account cases where the husband has sexual relations with an unmarried woman. Thus, the provision deems that “husbands have a free licence under the law to have extra-marital relationships with unmarried women.”

 

Court to examine two provisions:

  1. Why does Section 497 treat the man as the adulterer and the married woman as a victim.
  2. The offence of adultery ceases the moment it is established that the husband connived or consented to the adulterous act. So, is a married woman the “property” of her husband or a passive object without a mind of her own?

 

Government’s stand

  • Centre said the provision punishing adultery – Section 497 of IPC – supports, safeguards and protects the institution of marriage considering the unique structure and culture of Indian society.
  • The government agreed to the thought that stability of a marriage is not an ideal to be scorned and striking down Section 497 would destroy the fabric of society itself.

 

Key facts:

  • The apex court had earlier on three separate occasions, in 1954, 1985 and 1988, upheld the constitutionality of Section 497.

 

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SC Final Verdict:

  • The law became defunct on 27 Sep 2018 by Supreme Court of India.
  • The Supreme Court called the law unconstitutional because it “treats a husband as the master.”
  • Bench held adultery is not a crime and struck it off the Indian Penal Code.
  • Two individuals may part if one cheats, but to attach criminality to infidelity is going too far.
  • How married couples deal with adultery is absolutely a matter of privacy.
  • Punishing each other or the wife’s lover is unlikely to re-kindle commitment.

 

Source:

http://www.thehindu.com/news/national/supreme-court-agrees-to-examine-adultery-provision-in-ipc/article21296775.ece

Sabrimala Temple Entry Case

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Context:

  • Restricted entry of women of a certain age in Sabarimala Temple.
  • The temple prohibits women aged between 10 and 50 from undertaking pilgrimage to Sabarimala — which means women are banned from even making the arduous trek to the shrine.

 

What is happening?

  • The Supreme Court referred to a five-judge Constitution Bench the question whether the fundamental right of women to pray at the place of their choice can be discriminated against solely based “on a biological factor exclusive to the female gender.”
  • Prime issues to be dealt by the constitution bench:
    • Whether the multitude of worshippers of Swami Ayyappa visiting the famous shrine located in Kerala form a separate religious “denomination.”
    • If so, should their privilege to manage their religious affairs yield to the fundamental right of women to practice religion freely.
    • Included whether the restriction is a “permissible practice”
    • Who is the competent authority to decide on whether the restriction comes within the ambit of ‘custom’; and, finally, whether such a ‘custom’ comes under the constitutional principles.
  • Reasons for the restriction: The restriction finds its source in the legend that the Sabarimala temple deity, Swami Ayyappa, is a ‘Naishtika Brahmachari’ and should not be disturbed.

 

1991 Kerala High Court judgement:

  • Supports the restriction imposed on women devotees.
  • It had found that the restriction was in place since time immemorial and not discriminatory under the Constitution.

 

SC view:

  • Tagging a woman’s right to enter the famous Sabarimala temple with her menstrual cycle is unreasonable.
  • There is no concept of private mandirs (temples). Once a temple is opened, everybody can go and offer prayers there. Nobody, man or woman, can be excluded.
  • Sabarimala temple drew funds from the Consolidated Fund, had people coming from all over the world, and thus, qualified to be called a public place of worship.
  • Women and their physiological phenomena are creations of God. If not god, of nature. Why should this (menstruation) be a reason for exclusion for employment or worship or anything?
  • Any religion which excludes women on the basis of their age, sex or menarche is irrelevant.

 

SC Final Verdict:

  • The exclusionary practice of women in the 10-50 age group from the Sabarimala temple in Kerala, violates the rights of women devotees.  
  • Verdict establishes the legal principle that individual freedom prevails over purported group rights, even in matters of religion.
  • State of Kerala had supported the entry of women into the temple, arguing that the “custom” of excluding women violated their rights.

 

What are the issues involved in the case?

  • Gender Discrimination – When everyone is equal in the eyes of God and the Constitution, why are only women banned from entering certain temples?
  • Religion is a personal choice – Our Constitution guarantees an individual the freedom to choose his/her religion. Therefore, praying in a temple/mosque/church or at home must be the choice of the individual.
  • Custom Vs Liberty – The Constitution has provisions to protect the customs and religious practices of the people. At the same time, it guarantees liberty and religious freedom to the individual.
  • Temple as public place Vs religion as private choice – Temple, managed by trusts, are public places. The representatives of the Sabarimala trust say that it has its own customs and traditions which have to be respected. Just like there are rules for other public places.

Dowry Cases: Section 498-A of IPC

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What is Section 498A of IPC?

It is related to dowry related cases. It says –  Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Facts:

  • Cruelty by husband or his relatives, covered under Section 498A of Indian Penal Code (IPC), makes up the largest chunk of all crimes against women
  • The charge, often levelled by a wife against her in-laws in cases of dowry harassment, accounts for over 30 per cent of all crimes against women.
  • Cases under Section 498A was found to have the lowest conviction rate — merely 12.1 per cent — among all cases of crimes against women

Timeline:

  • Section 498A has been a matter of debate over the last few years
  • Government in 2015 even attempted to make the offence compoundable. This would have allowed complainants to enter into a compromise with the accused and agree to have the charges dropped
  • Making the dowry law compoundable was also among the recommendations made by the Law Commission and the Justice Malimath Committee
  • Various courts, including the Supreme Court, have over the years called Section 498A as being prone to abuse
  • In 2014, the SC said that it had a “dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives”

ias4sure.com - Dowry Cases Section 498-A of IPC

 

What is the issue around 498A?

The Supreme Court said women were increasingly using the anti-dowry law to harass in-laws and restrained police from mechanically arresting the husband and his relatives on mere lodging of a complaint under Section 498A of the Indian Penal Code.

Citing very low conviction rate in such cases, it directed the state governments to instruct police “not to automatically arrest when a case under Section 498A of IPC is registered but to satisfy themselves about the necessity for arrest under the parameters (check list) provided under Section 41 of criminal procedure code”.

The bench quoted “Crime in India 2012 Statistics” published by National Crime Records Bureau to say that nearly 2 lakh people were arrested in India in 2012 under Section 498-A, which was 9.4% more than in 2011.

Indian Courts had been using IPC 498-A to safeguard the women from facing the cruelty faced by them at their matrimonial home. Most of the cases are related to dowry, wherein the woman is continuously threatened for want of more money and property which if remains unfulfilled, the married woman is tortured, threatened, abused- both physically and verbally and harassed.

Several cases show that the married woman takes advantage of the section. Many women rights‘ groups justify the abuse of this section as being a common feature with all other laws and that also the ratio of false cases to that of true ones as being very low. But this still does not change the truth. The abuse of this section is rapidly increasing and the women often well- educated know that this section is both cognizable and non-bailable and impromptu works on the complaint of the woman and placing the man behind bars.

Justice must protect the weaker and ensure that the wronged is given a chance to claim back his/her due. When women accuse their husbands under Sec 498A IPC by making the offence non-bailable and cognizable, if the man is innocent he does not get a chance quickly to get justice. Misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin‘s weapon.

Therefore, the lawmakers must suggest some way of making this section non-biased to any individual such that the guilty is punished and the person wronged is given justice.

What is the decision of SC in this regard?

  • Police cannot arrest the accused without conducting a preliminary inquiry under dowry harassment cases.
  • With this, apex court put an end to immediate arrest of the husband and his family members in the dowry harassment cases filed under Section 498A of Indian Penal Code (IPC).
  • Now cases under Section 498A of IPC will be referred to Family Welfare Committees (FWC). FWC must be constituted at every district and no arrest will be effected till the committee’s report is received. Such report may be then considered by the investigating officer or the magistrate on its own merit.
  • FWC must comprise 3 members who may be social workers, retired persons, para-legal volunteers, wives of working officers and other citizens who are found suitable and willing. However, these committee members will not be considered as witnesses.
  • There must be adequate material to show that the arrest is necessary to prevent the accused from committing any further offence.
  • Moreover, designated police officer should be appointed to deal with such complaints.
  • These directions will not apply to the offences involving tangible physical injuries or death.
  • There will be also no routine impounding of passports or issuance of Red Corner Notice for the accused NRI.
  • The personal appearance of all family members and particularly outstation members will be also not be required.

Appeal in SC: Two months after the Supreme Court stopped immediate arrests of accused in dowry harassment cases, the court did a re-think, saying its order dilutes the right of a woman to seek justice against the evil of dowry.

SC revised its 2017 Judgement:

  • SC withdrew the court’s direction from July 2017.
  • The judges accepted that family welfare committee would create an extrajudicial entity not envisaged in the Code of Criminal Procedure.
  • They also decided to remove another guideline that gave a district judge the power to dispose of proceedings if the parties in a case reach a settlement. Such a power in a non-compoundable provision such as Section 498A exclusively belongs to the High Court, the top court held
  • It restored to the police their power to immediately register an FIR and act on a dowry harassment complaint filed by a married woman.
  • It further says a designated police officer should be there to probe dowry complaints. It ordered the Director General of Police of every State to provide such officers rigorous training.

Related Question:

  • The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. Critically analyse in the light of recent Supreme Court judgement. (200 Words)

Triple Talaq Issue

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Facts:

  • According to a study, 92% of Muslim women in India want oral triple talaq to go.
  • National Commission of Women (NCW) : Triple talaq was a “highly misused” custom and Government should scrap it to protect the rights of Muslim women
  • The ‘triple talaq’ has been abolished in 21 Islamic theocratic countries including Pakistan.
  • The largest percentage of divorces takes place among Muslim women. It was 1.59 among Muslim men, among Muslim women, it was more than three and a half times higher – 5.63
  • SC has declared practice of triple talaq unconstitutional, illegal and void and not protected by Article 25 (Freedom of Religion).

 

What is triple talaq?

‘Triple Talaq’ or ‘Oral talaq’ is a procedure of divorce mentioned under the Sharia Law which is a body of the Islamic law. Under this, a husband can divorce his wife by pronouncing ‘Talaq’ thrice.

 

What is the issue?

  • The constitution allows Muslims, the biggest religious minority group in the country, to regulate matters such as marriage, divorce and inheritance through their own civil code.
  • The Supreme Court has been examining how much it can interfere in Muslim laws governing family-related issues as it hears a plea to end the practice which permits Muslim men to divorce their wives by saying talaq three times.

 

What is the centre’s stand on this issue?

  • Centre is opposed to the Muslim practice of triple talaq.
  • It has also described this practice as “misplaced in a secular country.”
  • The centre says “gender equality and the dignity of women are not negotiable”
  • The Central government as a part of its written submissions to the Supreme Court has stated that since gender equality is part of the basic structure of the Constitution, Muslim women cannot be denied this right.
  • It says “even theocratic states have undergone reforms in this area of law” which reinforces that these practices cannot be considered an integral part of practice of Islam.

 

What activists say?

  • Women’s rights activists have long called for reform of the Muslim personal law which they say discriminates against women.
  • What they want instead is a well-defined law that criminalises polygamy, unilateral divorce and child marriage.
  • Campaigners say the “triple talaq” practice is unconstitutional because it violates the right to equality.

 

Why triple talaq should be abolished?

  • In spite of protests by Muslim women and activists world-wide the procedure is still prevalent in most countries.
  • There are several instances where ‘triple talaq’ has enabled husbands to divorce their wives arbitrarily, devoid of any substantiation.
  • Oral talaq or ‘triple talaq’ delivered through new media platforms like Skype, text messages, email and WhatsApp have become an increasing cause of worry for the community.
  • The ‘triple talaq’ has been abolished in 21 countries including Pakistan, but is still prevalent in India.
  • The Centre reasons that these practices are against constitutional principles such as gender equality, secularism, international laws etc.
  • The government also argues that when these practices are banned in Islamic theocratic countries, the practices could have absolutely no base in religion and are only prevalent to permit the dominance of men over women.

 

What is National Commission of Women’s view?

NCW is of the view that the traditional custom of triple talaq should be banned in an effort to protect the rights of Muslim women and it cannot be linked to the Uniform Civil Code. According to the commission, Muslim women feels disempowered because of the practice of triple talaq

 

What does the court say?

  • The Allahabad High Court has ruled that the practice of triple talaq (Talaq-e-bidat) among Muslims is unconstitutional and violates the rights of women enshrined in constitution.
  • High Court also held that No Personal Law Board is above the Constitution i.e. it was indirectly referring to All India Muslim Personal Law Board (AIMPLB)

 

What is the road block in front of courts?

  • If SC subject triple talaq as an aspect of personal law to constitutional norms, SC will have to overrule 1951 judgement of the Bombay HC (subsequently affirmed by the Supreme Court in another case) called State of Bombay v. NarasuAppa Mali
  • In that case, SC held that uncodified personal laws may not be scrutinised for fundamental rights violations

 

SC final verdict:

  • Struck down the controversial Islamic practice of instant talaq.
  • Talaq is arbitrary and whimsical mode of ending marriage violated Muslim women’s fundamental right to equality.
  • Talaq should be erased from the 1,400-year-old Sharia-dictated divorce manual.
  • Supreme Court issued the direction after observing that even theocratic Islamic States had corrected their Shariat to banish instant talaq.
  • Supreme Court ordered the government to frame a ruling to address the issue of Muslim women under the yoke of triple talaq
  • Verdict compared triple talaq to social evils such as sati, infanticide and devadasi system, which were cast out by way of legislation and not by judicial orders.

 

 

 

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