11 cases that changed the course of Fundamental Rights in 2017; CLPR’s Rights in Review Report

In 2017 we notice a new and significant trend for Fundamental Rights protection in India. The Supreme Court constitutes 5 judge benches more readily to decide significant fundamental rights cases..The fourth edition of the Rights in Review report, published annually by the Centre for Law and Policy Research (CLPR), begins on this optimistic note..The report analyses Supreme Court decisions on fundamental rights, which have in some way extended or modified the legal doctrine, applied new law to new circumstances or have otherwise had a significant impact on public policy or public affairs..This year’s edition focuses on 11 landmark judgments rendered in 2017, which deal with three broad areas of Fundamental Rights, i.e. Equality, Life and Personal Liberty and Religious Freedom..Among the earmarked judgments are Justice KS Puttaswamy v Union of India, Independent Thought v Union of India and Shayara Bano v Union of India..In Puttaswamy’s case, a nine judge Bench, unequivocally held that all individuals have a Constitutionally protected Fundamental Right to Privacy. The case brought by NGO Independent Thought is what finally prompted the Court to strike down as unconstitutional child marital rape, which was hitherto validated under exception 2 to Section 375 of the Indian Penal Code. The Shayara Bano case marked the end of instantaneous muslim divorce, when a majority of three out of two judges invalidated the practice of talaq-e-biddat..Interestingly, while the three judges were in agreement on striking down instantaneous talaq, each judge found their own independent explanation to support this conclusion, rather than a uniform interpretation of law. The report makes note of this aspect thus,.“The Triple Talaq decision rested on a reading of Article 25 and Article 14 but failed to comprehensively address the constitutional status of discriminatory religious practices against women and their equal rights within the marriage.”.This is in contrast the six concurring opinions rendered by the nine-judge Bench in Putttaswamy, wherein all the judgments more or less complemented the other, in a collective broad endorsement of a Constitutional right to privacy..The likely Domino Effect.In addition to their immediate implications, these cases are also likely to chart out the future of other Constitutional cases pending before Court..For instance, the Puttaswamy case may eventually serve to support the case against the criminalisation of homosexuality under Section 377 of the IPC. In his judgment, Justice DY Chandrachud has expressed doubts over the correctness of the Suresh Kumar Koushal case, which had upheld the vires of Section 377. As noted in the report, Justice Chandrachud has opined,.“…the right to privacy and protection of sexual orientation lie at the core of fundamental rights… [LGBT] rights are not so-called by are real rights founded on sound constitutional doctrine.“.In fact, the Puttaswamy case was relied upon by intervenor, Child Rights Trust, in its arguments against the constitutionality of child marital rape in the Independent Thought case. The Independent Thought case in turn is being relied upon in the case against Marital Rape pending before the Delhi High Court (RIT Foundation v Union of India)..The Aadhaar case, which has now been reserved for judgement, is also likely to make mention of the Puttaswamy case..Another case which is tied to the judgment in the impending Aadhaar judgment is the case of Binoy Viswam v Union of India, which allowed the mandatory linking of PAN card with Aadhaar, albeit with prospective effect. As noted by the report,.“Though the Court upheld the amendment to the ITA [Income Tax Act amendment which mandated PAN-Aadhaar linking], it clarified that this decision was subject to the ongoing constitutional challenge to the Aadhaar Act for violations of Article 21 of the Constitution being heard in 2018.”.The following cases highlighted by the report is also significant, in terms of understanding the current and future discourse of Fundamental Rights in India..Extension of state responsibility to the Private Sector: In Secretary, Mahatma Gandhi Case v. Kamgar Sena, the Court extended the Pay Commission recommendations to unaided Private Institutions citing state obligations under Article 43. While doing so, it extended the scope and horizontal application of equality guarantee to private actors. An argument can be made that this case collapsed the division between public and private sectors in reaching their judgment..Right to Education means Right to Quality education: In State of Uttar Pradesh v. Anand Kumar Yadav, the Court struck down the Uttar Pradesh Right to Education Amendment, which regularised the employment of 1.74 lakh Siksha Mitras (Contractual Workers) as elementary school teachers. It affirmed that Right to Education under Article 21A means Right to Quality Education. No trade-off can be made with Quality for purpose of a wider reach. This will have significant policy implication; similar moves by other states have become void after this judgment..Understanding how Secularism is defined in India: In State of Gujarat v IRCG the Court held that a substantial diversion of tax funds towards the restoration of shrines, which might have been destroyed due to state’s complicity (or negligence), violates the Secularism principle. The CLPS notes that larger debate may be needed on the mechanical application of the Strict Separation principle into India’s Secularism doctrine..Furthering the cause of Women’s Rights: The report also takes note of the expansion of reproductive rights in the case of Meera Santhosh Pal v. Union of India. In this case, the Court allowed the termination of a 24-week old foetus, after finding that there was harm to the foetus and danger to the physical and mental health of the mother. This, despite the statutory bar against abortions beyond the 20th week of pregnancy. The report notes that,.“While the Court did not create a categorical exception to the 20 week limit in the MTPA, it continues to concede a wide discretion to medical experts on a case to case basis.”.The report also discusses the cases of Nikesh Tarachand Shah v Union of India (in which Section 45 of the Prevention of Money Laundering Act was struck down), Arjun Gopal and Ors. v Union of India (regarding the ban on Firecrackers in the National Capital Territory of Delhi) and Hussain and Others v Union of India (regarding the rights of undertrial prisoners, including early release and grant of bail)..Read Rights in Review report 2017 here: