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Case Study On Civil And Criminal Case

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: : SUBMITTED BY

Dr. GULAB RAI ABHISHEK VERMA

FACULTY OF LAW R. NO. 143070005

D.S.M.N.R.U B.COM.LLB (H)

LUCKNOW 9TH SEMESTER.

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TABLE OF CONTENTS
CONTENT PAGE NO.

1. Vishakha vs. State of Rajasthan…………………………………………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 Bano Vs. Union Of India………………………………………..9
2.1 Case Title……………………………………………………………...9
2.2 Background…………………………………………………………..10
2.3 Issue & 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: 13/08/1997

Bench: J.S. Verma C.J., Sujata V. Manohar & B.N. Kirpal JJ.

Cases Referred: Nilabati Behra 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, the marriage was successful in its completion even though widespread protest. In
1992, to seek vengeance upon her, Ramakant Gujjar along with his 5 men gang raped her in
front of her husband. The police department at first tried to 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 was demanded from her and she was left with
nothing but her husband’s blood – stained dhoti. Adding to their 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 under the name ‘Vishakha’.The apex court was called upon to frame guidelines for
preventing Sexual Harassment at Workplace.

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

2. To furnish the employees with effective mechanism for the process of resolving &
trying of such indecent acts of sexual harassment
3. For this purpose “Sexual harassment” means disagreeable sexually determined
behavior direct or indirect as:

 physical contact and advances;

 a demand or request for sexual favours;
 sexually coloured remarks;
 showing pornography;
 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 guidelines. It is of utmost importance to frame 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

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and Independence of Judiciary in 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)
 General recommendations of CEDAW in this context (Article 11,22,23,24)
th
 At the 4 World 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 Rights.

The Supreme Court inter alia, clearly mentioned that the guidelines were to be treated as law
declared u/a 141.

Vishakha Guidelines

1. Employer or other answerable persons are bound to preclude such incidents 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 contact and advances;

b) A demand or request for sexual favours;

c) Sexually coloured remarks;

d) Showing pornography;

e) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature

3. Every employer other than providing services under (1) is under an obligation to –

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i. Expressly notify the prohibition of sexual harassment

ii. The rules/regulations of govt. & public – sector bodies must include rules/regulations
prohibiting sexual harassment.

iii. The Standing Orders of the private employer made under Industrial Employment
(Standing Orders) Act, 1946 should include such provisions to prohibit sexual harassment.

iv. The working conditions must be appropriate and not hostile to the woman employees of
the organization. Further, the female employees should feel a sense of equality in the
atmosphere.

4. When the offences committed are the one discussed under Indian Penal Code or any other
law, the employer is bound to start the prosecution with complaining to appropriate authority.
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 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 aware with such issues.The committee must be adequate in 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 arranged where the workers shall be allowed to raise
issues of sexual harassment.

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

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Critical Analysis

The court in Vishakha was called upon for the enforcement of the fundamental 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 of rights & the victims had no remedy. The legislature was still
silent on making any law in such regard even after multiple incidents of similar nature where
there was sexual harassment. India in competing with the liberal world succeeded 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. The court without hesitating in breaking its constitutional
boundaries (only to interpret law) formulated guidelines for the prevention of such incidents.
These guidelines are known as Vishakha 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 to deal with such incidents. These 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 reading of 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:

 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)
th
 At the 4 World 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 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 any incident of Sexual Harassment. These rights have gained universal acceptance
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
that it does not over-pressurize the employer in constructing redressal mechanism. 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.

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Shayara Bano Vs Union Of India – Triple 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 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. Talak-us-sunnat
i. Ahsan
ii. Hasan
i. Talak-ul-Biddat
3. Ila (Vow of continence)
4. Zihar (Injurious Comparison)
II. By the wife
1. Talak-e-Tafwid (Delegated Divorce)
III. by Mutual Consent
1. Khula (Redemption)
2. Mubarat(Mutual Freeing)
IV. by Judicial Process
1. Lian (Mutual Imprecation)
2. Faskh(Judicial 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-ul-
sunnat and he neither waits for iddat 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 ShayaraBanoa victim of this 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 is an 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 unconstitutional. The majority judgment was written by Justice
Nariman for himself and on the behalf of Justice Lalit, while Justice Joseph 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 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 Talaq-e-biddatis not protected
by the exception laid down in Article 25 i.e. the court found the said 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 Talaqis against the basic
tenets ofQuoran and whatever is against Quoranis contrary to Shariat therefore, what is bad
in theology cannot be good in law. The majority bench relied on its earlier decision Shamim
Ara[1]which held that this practice of Triple 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 Order
2. Health
3. Morality
4. Other Provisions of Part III of the Constitution

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 tie can be broken on whims of 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 practice? It depends on the 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
founded upon. Essential religious are those which are fundamental to the profession and
propagation of the religion. If taking away of a practice causes a 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 women hell. The Muslim women have since many years demanding the protection 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 Hanafi School practices it. Therefore, it 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
time immemorial it cannot be held as an essential religious practice. Hinduism also after finding
Sati Pratharegressive removedit from the religion. Sati was also practiced widespread and
practiced since time immemorial. Therefore, the court arrived at a very correct judgment.

The majority started its judgment by the phrase “what is bad in theology cannot be good in 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 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.
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 of the courts to dispense justice and the courts should not be deterred by mere
technicalities in dispense justice. The minority judgment is per incuriam 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, thanks to the justified reasoning provided by the majority bench India finally did
away with the regressive and backward practice of Triple Talaqor Talaq-e-biddat.

Conclusion

After so many abortive attempts finally, a petition filed by ShayaraBano, Ishrat Jahan,
Aafreen Rehman, Gulshan Parveen was successful in bringing justice to many 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 after
enjoying and extracting pleasure out of women used to abandon them easily by the virtue of
Triple Talaq.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. 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 the widespread atrocities,
then there is some serious rethink required by the Judges of the apex court.

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