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No Double Jeopardy Bar If There was No Trial

In a recent judgment (State of Mizoram vs. Dr. C. Sangnghina), SC has held that the bar of double jeopardy will not apply if the person was...

10 Nov 2018 Fundamental Rights
SC Allows Women Entry into Sabarimala Temple

In a 4:1 judgment, 5-membered constitution bench of Supreme Court, in Indian Young Lawyers Association vs. the State of Kerala, has allowed women of...

29 Sep 2018 Fundamental Rights
Supreme Court Upholds Aadhaar's Constitutional Validity

In a 4:1 judgment, 5 membered constitution bench of Supreme Court upheld the constitutional validity of The Aadhar (Targeted Delivery of...

27 Sep 2018 Fundamental Rights
Should Article 35A be scrapped?

The ‘Yes, No, It’s complicated’ column of The Hindu for 24th August, 2018, looks upon the Article 35 A, its constitutionality and...

24 Aug 2018 Fundamental Rights
Sabarimala Temple Bar Unreasonable: SC

The Supreme Court’s Constitution Bench has observed that prohibition on women with their menstrual cycles from entering the Sabarimala temple...

19 Jul 2018 Fundamental Rights
Choosing a Partner is a Person’s Fundamental Right: SC

The Supreme Court has observed that choice of a partner is a person’s fundamental right, and it can be a same-sex partner. The observation came...

11 Jul 2018 Fundamental Rights

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		'article_id' => (int) 850,
		'category_id' => (int) 21,
		'title' => 'No Double Jeopardy Bar If There was No Trial',
		'description' => '<p>In a recent judgment (<em>State of Mizoram vs. Dr. C. Sangnghina</em>), SC has held that the bar of double jeopardy will not apply if the person was discharged due to lack of evidence.</p>
<ul style="list-style-type: square;">
<li>In its judgment, SC held that, where the accused has not been tried at all and convicted or acquitted, the principles of &ldquo;double jeopardy&rdquo; cannot be invoked at all.</li>
<li><strong>The principle of Double Jeopardy:</strong> Double Jeopardy is a legal term and it means that a person can not be punished for the same offense more than once.</li>
<li>Both <strong>Article 20(2) of the Constitution of India</strong> and <strong>Section 300 of the Criminal Procedure Code</strong> say that no person shall be prosecuted and punished for the same offense more than once.</li>
</ul>
<h3>Background</h3>
<ul style="list-style-type: square;">
<li>The judgment is based on an appeal filed by the State of Mizoram against an order passed by the Gauhati High Court in August 2015, upholding a Special Court decision to decline to entertain a second charge sheet filed in a corruption case against the accused on the ground of double jeopardy.</li>
</ul>
<div class="border-bg">
<p><br /><strong>Article 20: Protection in Respect of Conviction for Offences</strong></p>
<ul style="list-style-type: square;">
<li>Article 20 grants protection against arbitrary and excessive punishment to an accused person, whether citizen or foreigner or legal <g class="gr_ gr_30 gr-alert gr_gramm gr_inline_cards gr_run_anim Grammar multiReplace" id="30" data-gr-id="30">person</g> like a company or a corporation.</li>
<li>It contains three provisions in that direction:</li>
</ul>
<ol>
<li><strong> No ex-post-facto law:</strong> No person shall be (i) convicted of any offense except for violation of a law in force at the time of the commission of the act, <g class="gr_ gr_33 gr-alert gr_spell gr_inline_cards gr_run_anim ContextualSpelling ins-del" id="33" data-gr-id="33">nor</g> (ii) subjected to a penalty greater than that prescribed by the law in force at the time of the commission of the act.</li>
<li><strong>No double jeopardy:</strong> No person shall be prosecuted and punished for the same offense more than once.</li>
<li><strong>No self-incrimination:</strong> No person accused of any offense shall be compelled to be a witness against himself.</li>
</ol>
<ul style="list-style-type: square;">
<li>An ex-post-facto law is one that imposes penalties retrospectively (retroactively), that is, upon acts already done or which increases the penalties for such acts.</li>
<li>The protection against double jeopardy is available only in proceedings before a court of law or a judicial tribunal. In other words, it is not available in proceedings before departmental or administrative authorities as they are not of judicial nature.</li>
<li>The protection against self-incrimination extends to both oral evidence and documentary evidence.</li>
</ul>
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		'article_id' => (int) 669,
		'category_id' => (int) 21,
		'title' => 'SC Allows Women Entry into Sabarimala Temple',
		'description' => '<p>In a 4:1 judgment, 5-membered constitution bench of Supreme Court, in<em><strong> Indian Young Lawyers Association vs. the State of Kerala</strong>, </em> has allowed women of all ages to worship in Sabarimala Temple.</p>
<ul style="list-style-type: square;">
<li>In its judgment, SC stated that <strong>'devotion cannot be subjected to gender discrimination'.</strong></li>
<li>Chief Justice Dipak Misra, Justice RF Nariman, Justice AM Khanwilkar and Justice DY Chandrachud constituted the majority, while the lone woman judge on the Bench, Justice Indu Malhotra dissented.</li>
<li>The petitions had challenged the Constitutional validity of <strong>Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965,</strong> which <strong>restricts the entry of women into the Sabarimala Temple</strong> as being<em> ultra-vires</em> <strong>Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965</strong> which states that places of public worship are to be open to all sections and classes of Hindus.</li>
</ul>
<h3>Sabarimala Temple Issue</h3>
<ul style="list-style-type: square;">
<li>Located in the forests of the Western Ghats in Kerala&rsquo;s Pathanamthitta district, the hill shrine is dedicated to Lord Ayyappa and is managed by the Travancore Devaswom Board (TDB).</li>
<li>The Sabarimala temple prohibits women aged between 10 and 50 years from entering the shrine.</li>
<li>It is said that its deity, Lord Ayyappa, is a<strong> &ldquo;Naisthik Brahmachari&rdquo;</strong> and that allowing young women to enter the temple would affect the idol&rsquo;s &ldquo;celibacy&rdquo; and &ldquo;austerity&rdquo;.</li>
<li>The Travancore Devaswom Board has said that the prohibition on women of menstruating age from entering the temple is a part of <strong>'essential religious practice'&nbsp;</strong>of Lord Ayappa devotees.</li>
<li>The petitioners have argued that the ban enforced on menstruating women from entering the Sabarimala shrine does not constitute a core foundation of the religion.</li>
<li>Preventing women&rsquo;s entry to the temple with an irrational and obsolete notion of &ldquo;purity&rdquo; offends the equality clauses in the Constitution.</li>
<li>It takes away the woman&rsquo;s right against discrimination guaranteed under Article 15(1) of the Constitution.</li>
<li>It also curtails the religious freedom assured by Article 25(1).</li>
<li>In 1991, Kerala High Court upheld the prohibition on young women entry in Sabarimala Shrine. The High Court had pointed out that the &lsquo;Naisthik Brahmachari&rsquo; nature of the deity was &ldquo;a vital reason for imposing this restriction on young women&rdquo;.</li>
</ul>
<h3>SC judgment&nbsp;</h3>
<ul style="list-style-type: square;">
<li><strong>Majority Judgement</strong>
<ul style="list-style-type: circle;">
<li>SC has ruled that Rule 3(b) is&nbsp;<em>ultra-vires </em>the Constitution, Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 as well as&nbsp;Section 4 of the 1965 Act which says that the regulations/rules made under this act shall not discriminate, in any manner whatsoever, against any Hindu on the ground that he/she belongs to a particular section or class.</li>
<li>Supreme Court condemned the prohibition as <strong>"hegemonic patriarchy"</strong>&nbsp;(hegemonic patriarchy means that patriarchy has become such an over-arching idea that discrimination based on it appears to be common sense to such an extent that not only men, even women become the supporter and perpetrator of the very notion which discriminates them).</li>
<li>It said that exclusion on grounds of biological and physiological features like menstruation was unconstitutional. It amounted to discrimination based on a biological factor exclusive to gender. It was violative of the right to equality and dignity of women.</li>
<li>SC said that prohibition founded on the notion that menstruating women are<strong> "polluted and impure" is a form of untouchability</strong> and the notions of purity and pollution stigmatized women.</li>
<li>SC also held that Ayyappa devotees do not form a separate denomination just because of their devotion to Lord Ayyappa, but it is only a part of Hindu worship.</li>
<li>SC overturned the 1951 judgment of Bombay High Court in the <strong><em>State of Bombay versus Narasu Appa Mali</em> </strong>which held that the personal law is not 'law' or 'law in force' under Article 13 and held that immunising&nbsp;customs takes away the primacy of the constitution.</li>
<li>No customs or usages can claim supremacy over the Constitution and its vision of ensuring the sanctity of dignity, liberty, and equality and customs and personal law have a significant impact on the civil status of individuals.</li>
</ul>
</li>
<li><strong>Dissent Opinion</strong>
<ul style="list-style-type: circle;">
<li>Justice Indu Malhotra dissented from the majority opinion and held that notions of rationality cannot be invoked in matters of religion by courts.</li>
<li>She held the determination of what constituted an essential practice in a religion should not be decided by judges on the basis of their personal viewpoints. Essentiality of a religious practice or custom had to be decided within the religion and it is a matter of personal faith.</li>
<li>Justice Malhotra observed that the freedom to practice their beliefs was enshrined in Article 25 of the Constitution. Harmonisation of fundamental rights with religion included providing freedom for diverse sects to practice their customs and beliefs.</li>
</ul>
</li>
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		'article_id' => (int) 660,
		'category_id' => (int) 21,
		'title' => 'Supreme Court Upholds Aadhaar's Constitutional Validity',
		'description' => '<p>In a 4:1 judgment, 5 membered constitution bench of Supreme Court upheld the constitutional validity of The Aadhar (Targeted&nbsp;Delivery of Financial and Other Subsidies, Benefits and Services) Act 2016 (Hereafter, Aadhar Act).&nbsp;</p>
<ul style="list-style-type: square;">
<li>SC was hearing a clutch of petitions filed in Supreme Court against the Aadhar Scheme of the government of India, with initial one filed in 2012 by former Karnataka High court judge K S Puttaswamy.</li>
</ul>
<h3>SC's Judgment</h3>
<ul style="list-style-type: square;">
<li><strong>Aadhar making India a Surveillance state?</strong>
<ul style="list-style-type: circle;">
<li>
<p>The Court has held that the architecture of Aadhaar, as well as the provisions of the Aadhaar Act, do not tend to create a surveillance state.</p>
</li>
<li>During the enrolment process, minimal biometric data in the form of iris and fingerprints are collected. The Unique Identification Authority of India (UIDAI), does not collect purpose, location or details of the transaction. Thus, the purpose of the transaction is not stored.</li>
<li><strong>The information collected remains in silos. The information is not accessible in combined form.</strong> The requesting agency (like banks and the Income Tax Department) is provided an answer only in &lsquo;Yes&rsquo; or &lsquo;No&rsquo; about the authentication of the person concerned.</li>
<li>However, dissenting judge, Justice D Y Chandrachud said that from the verification log, it was possible to locate the places of transactions carried out by an individual over the past five years.</li>
<li>SC struck down Regulation 27 which provided for archiving transaction data for five years. SC has said that <strong>authentication logs should be deleted after six months.</strong></li>
</ul>
</li>
<li><strong>Aadhar and Privacy</strong>
<ul style="list-style-type: circle;">
<li>The Court ruled that the <strong>Aadhar Act passed the test laid down in the Privacy judgment to determine the reasonableness of the invasion of privacy.</strong>
<ul style="list-style-type: disc;">
<li>It held that the Aadhaar scheme is backed by the statute, i.e. the Aadhaar Act.</li>
<li>It also serves legitimate State aim i.e. to ensure that social benefit schemes reach to the deserving community.</li>
</ul>
</li>
<li>
<p>The Court noted that the failure to establish the identity of an individual has proved to be a major hindrance for successful implementation of those programmes as it was becoming difficult to ensure that subsidies, benefits, and services reach the intended beneficiaries in the absence of a credible system to authenticate the identity of beneficiaries.</p>
</li>
<li>
<p>It also noted that while the challenge to Aadhaar Act is on the basis of dignity as a facet of right to privacy under Article 21, the rationale behind<strong> Section 7 of the Aadhaar act( which makes Aadhar mandatory for Government Benefits)</strong> is to ensure that right to life of marginalized are protected by ensuring that they get the benefits of welfare schemes.&nbsp;</p>
</li>
<li><strong>Majority judgment held that the Aadhaar Act has struck a fair balance between the right of privacy of the individual along with the right to life of the same individual as a beneficiary of government benefits.</strong></li>
<li>However, the dissenting judge held that by collecting identity information, the Aadhaar program treats every citizen as a potential criminal without even requiring the state to draw a reasonable belief that a citizen might be perpetrating a crime or an identity fraud.</li>
<li>Justice Chandrachud also held that the legitimate aim of state can also be fulfilled by adopting less intrusive measures as opposed to the mandatory enforcement of the Aadhaar scheme as the sole basis of identification.<strong></strong></li>
</ul>
</li>
<li><strong>Aadhar as the Money&nbsp;Bill</strong>
<ul style="list-style-type: circle;">
<li>
<p>The Court<strong> upheld the Lok Sabha Speaker's decision to recognize the Aadhar Act as the Money Bill.</strong></p>
</li>
<li>
<p>While admitting that Rajya Sabha plays a significant role in our bicameral system of Parliament, and Article 110 which provide for money Bills have to be interpreted strictly, the Court held that Aadhaar Act fell within the ambit of Article 110.</p>
</li>
<li>
<p>The Court held the reasoning that the main objective of Aadhaar Act is to extend<strong> benefits in the nature of aid, grant, or subsidy to the marginalized sections of the society with the support of Consolidated Fund of India.</strong></p>
</li>
<li>However, in the minority judgment, Justice Chandrachud said that the Passing of a Bill as a Money Bill, when it does not qualify for it, has damaged the delicate balance of bicameralism which is a part of the basic structure of the Constitution.</li>
</ul>
</li>
<li><strong>Aadhar for Services</strong><strong></strong>
<ul style="list-style-type: circle;">
<li>
<p>SC upheld the Aadhar for government services by using the <strong>Doctrine of Proportionality.</strong></p>
</li>
<li>
<p><strong></strong>The doctrine of Proportionality postulates that the nature and extent of the State&rsquo;s interference with the exercise of a right must be proportionate to the goal it seeks to achieve.</p>
</li>
<li>
<p>The Court upheld the validity of Section 7 of the Act stating that the rationale behind Section 7 is to ensure targeted delivery of services, benefits, and subsidies which are funded from the Consolidated Fund of India.</p>
</li>
<li>
<p>This has been done keeping in view the larger interest to ensure social and economic justice, to eliminate inequality and to ameliorate a lot of the poor and the Dalits. Some such schemes are PDS, scholarships, mid-day meals, LPG subsidies, etc.</p>
</li>
<li>
<p>The court held that it is convinced that the purpose of the provision is to ensure that such benefits which help to achieve the right to life, reach the deserving.&nbsp;</p>
</li>
<li>
<p>The court also said that government cannot increase the scope of 'benefits' and&nbsp; &lsquo;Benefits&rsquo;&nbsp; are such welfare schemes for which resources are to be drawn from the Consolidated Fund of India.</p>
</li>
<li>
<p>Therefore actions by CBSE, NEET, JEE and UGC requirement of Aadhar for the scholarship shall not be covered under Section 7 unless it is demonstrated that the expenditure is incurred from Consolidated Fund of India.</p>
</li>
<li>
<p>A benefit which is earned by an individual (e.g. pension by a government employee) cannot be covered under Section 7 of the Act, as it is the right of the individual to receive such benefit.</p>
</li>
</ul>
</li>
<li><strong>Disclosure of Data Disclosure and Data Protection</strong><strong></strong>
<ul style="list-style-type: circle;">
<li>On the protection of biometric data, the court held that there are sufficient authentication security measures in place.</li>
<li>During authentication, no information about the nature of transaction etc. is obtained.</li>
<li><strong>The UIDAI has mandated the use of Registered Devices (RD) for all authentication request.&nbsp;</strong></li>
<li>With the use of these registered devices, the biometric data is encrypted within the device using a key, and is, therefore, captured live. Before returning to the application being used by the service provider, the registered device blocks the personal identity data by encrypting it. This creates a unidirectional relationship between the host application and the UIDAI.</li>
<li>The machinery which the UIDAI has created for data protection, it was of the view that it is very difficult to create the profile of a person simply on the basis of biometric and demographic information stored in Central Identities Data Repository (CIDR).</li>
<li>Court also ordered the government to bring out a robust data protection regime on the basis of recommendations of<strong> Justice B N Sri Krishna Committee report</strong>.</li>
<li>The court <strong>struck down Section 33(2) of the Aadhar Act</strong> which allows disclosure of information of a user in the interest of national security. However, the court held that the power of determination of such an eventuality should be given to an officer higher than the rank of a Joint Secretary.</li>
<li>Court also<strong> read down Section 33(1) of the Aadhar Act</strong> which prohibits disclosure of information, including identity and authentication information, except when it is by an order of a district judge or higher court, the court ordered that an individual, whose information is sought, shall be afforded an opportunity of hearing.</li>
<li><strong>SC struck down Regulation 26(c),</strong> Aadhaar Regulations which allowed UIDAI to store metadata relating to Aadhar based authentications or authentication history for private firms.</li>
</ul>
</li>
<li><strong>Aadhar for Children</strong>
<ul style="list-style-type: circle;">
<li>
<p>For the enrolment of children under the Aadhaar Act, it would be essential to have the consent of their parents/guardian.</p>
</li>
<li>
<p>On attaining the age of 18, such children who were enrolled under Aadhaar with the consent of their parents will have the option to exit from the Aadhaar project.</p>
</li>
<li>
<p>SC also ruled that Aadhaar is not compulsory for admissions to schools as it is neither a service nor subsidy.</p>
</li>
<li>
<p>Further, since a child between the age of 6 to 14 years has the fundamental right to education under Article 21A of the Constitution, school admission cannot be treated as &lsquo;benefit&rsquo;.</p>
</li>
</ul>
</li>
<li><strong>Aadhar linking to PAN and for Income Tax-returns filing</strong>
<ul style="list-style-type: circle;">
<li>SC upheld the Section 139AA of the Income Tax Act, which mandates linking of Aadhaar to PAN and providing Aadhaar while filing income-tax returns.</li>
<li>SC held that the provision did not violate the right to privacy.&nbsp;</li>
<li>By this ruling linking of PAN with Aadhar will also be mandatory.&nbsp;</li>
</ul>
</li>
<li><strong>Aadhar linking to banks and mobile phones</strong>
<ul style="list-style-type: circle;">
<li>The circular of the Department of Telecommunications, which mandated Aadhaar-based re-verification of mobile numbers, has been held illegal and unconstitutional.</li>
<li>The provision in the Aadhaar Act that allowed private entities to conduct authentications too has been held illegal, due to which corporate bodies including banks, telecom operators, mobile wallets, etc will not be able to press any customer for his or her Aadhaar number.</li>
</ul>
</li>
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		'article_id' => (int) 430,
		'category_id' => (int) 22,
		'title' => 'Should Article 35A be scrapped?',
		'description' => '<p><em>The &lsquo;Yes, No, It&rsquo;s complicated&rsquo; column of The Hindu for 24th August, 2018, looks upon the Article 35 A, its constitutionality and analyzes its impact on the State of Jammu and Kashmir.</em></p>
<h3>Background</h3>
<ul style="list-style-type: square;">
<li>The Article was introduced through a <strong>Presidential Order, of 1954,</strong> which gives the Jammu and Kashmir State Legislature a complete autonomy to decide who the &lsquo;permanent residents&rsquo; of the State are. It (despite its power, this article) is reflected only in an Appendix of the Constitution.</li>
<li>Under the Article, the J&amp;K State Legislature can enact any legislation on the issues of permanent residence, or special privileges and rights, or imposition of restrictions, or employment, acquisition of immovable property and settlement in the State, or aid from the State government. One of the preconditions of the enactment of the law was that it would not be considered to violate the fundamental rights of the citizens of the Jammu and Kashmir.</li>
<li>The Presidential Order was issued under <strong>Article 370(1)(d),</strong> which allows the President to make certain exceptions and modifications to the Constitution of India for the sole benefit of Jammu and Kashmir.</li>
</ul>
<h3>Implications of the Presidential Order</h3>
<ul style="list-style-type: square;">
<li>The <strong>Instrument of Accession</strong> signed by Maharaja Hari Singh in 1947 which brought the State into the Union of India gave India control only over the State&rsquo;s <strong>defence, foreign policy and communications.</strong> On all other matters, the State government retained powers.</li>
<li>However, through the Presidential order, of 1954, India&rsquo;s control over the state was expanded by integrating the State&rsquo;s finances with India and the fundamental rights and directive principles were also extended to the citizens of Jammu and Kashmir.</li>
<li>The Order also extended the Supreme Court&rsquo;s jurisdiction over certain aspects of Jammu and Kashmir.</li>
</ul>
<h3>Issues around the Article</h3>
<ul style="list-style-type: square;">
<li>The Article&rsquo;s addition to the Constitution under <strong>Article 370 (</strong>which allows the President to make certain exceptions and modifications to the Constitution for the benefit of Jammu and Kashmir) is in contradiction to the <strong>Article 368</strong> (procedure for constitutional amendments), which empowers only the Parliament to amend the Constitution. Also, its introduction through the Presidential order shows the lack of a comprehensive Parliamentary contemplation.</li>
<li>The &lsquo;classification&rsquo; of citizens created by the Article has been considered to be violative of the Fundamental Rights conferred on the citizens especially the Right to equality (Article 14). It has been considered to be discriminatory against the women with regards to property rights.</li>
<li>The Article does not consider the non-permanent residents of the state eligible for State government employment and also debars them from contesting elections.</li>
</ul>
<h3>Conclusion: Article 35A is a recognition of the conditional accession of J&amp;K into India</h3>
<ul style="list-style-type: square;">
<li>The Article is a small part of a larger process of the State&rsquo;s integration into India. The State&rsquo;s limited accession to India makes its legislations regulating land, rights over land and settlement in State different from the similar legislations in the other parts of the country like Himachal Pradesh and Uttarakhand (where buying and selling of land to outsiders is not permitted by law). When the two fundamental rights - the freedom to reside and settle in any part of the territory and the freedom to practice any profession, trade and business gets violated in other states, they cannot be challenged in the case of Jammu and Kashmir, which in a way is a &lsquo;quasi-sovereign&rsquo; state.</li>
<li>All the issues revolving around the unconstitutionality of the legislation has to be decided according to laws and the Constitution of the State.</li>
<li>Even the decision to scrape it off should take into account the expression of the will of the people, through a political process which includes the people of Jammu and Kashmir in the discussion.</li>
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		'article_id' => (int) 153,
		'category_id' => (int) 21,
		'title' => 'Sabarimala Temple Bar Unreasonable: SC',
		'description' => '<p>The Supreme Court&rsquo;s Constitution Bench has observed that prohibition on women with their menstrual cycles from entering the Sabarimala temple is unreasonable.</p>
<ul style="list-style-type: square;">
<li>The Constitution Bench was hearing 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 (menstruation) exclusive to the female gender.</li>
<li>The Bench has also asked whether the exclusion of women aged between 10 and 50 from entering a temple because they are considered &lsquo;impure&rsquo; amounts to the practice of untouchability, a social evil abolished by law <strong>(Article 17)</strong>.</li>
</ul>
<h3>Key Observations</h3>
<ul style="list-style-type: square;">
<li>Right to pray is a constitutional right for women. <strong>Article 25 (1)</strong> mandates freedom of conscience and right to practise religion. All persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.</li>
<li>There is no concept of private mandirs (temples). Once a temple is opened, everybody can go and offer prayers. In a public place of worship, a woman can enter, where a man can go. <strong>Right to pray is equal</strong> for both men and women.</li>
<li>The Sabarimala temple draws funds from the Consolidated Fund of India, people from all over the world visit it and hence, is qualified to be called a public place of worship.</li>
<li>The only grounds on which entry can be prohibited are health, morality and public order.</li>
<li>The age restriction - whether based on age or menstruation, is arbitrary. Menstruation cannot be a reason for exclusion for employment or worship or anything.</li>
</ul>
<h3>Background</h3>
<ul style="list-style-type: square;">
<li>The hill shrine Sabarimala is located in the forests of the Western Ghats in Kerala&rsquo;s Pathanamthitta district. It is dedicated to Lord Ayyappa and is managed by the Travancore Devaswom Board (TDB).</li>
<li>As per the temple legend, the Lord is a celibate and had himself placed the restrictions on women in the 10-50 age bracket from entering the shrine.</li>
<li>Preventing women&rsquo;s entry to the temple with an irrational and obsolete notion of &ldquo;purity&rdquo; offends the equality clauses in the Constitution. It takes away the woman&rsquo;s right against discrimination guaranteed under <strong>Article 15(1)</strong> of the Constitution.</li>
<li>Prohibition of women&rsquo;s entry to the shrine solely on the basis of womanhood and the biological features associated with womanhood is derogatory to women, which <strong>Article 51A (e)</strong> aims to renounce.</li>
</ul>',
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		'article_id' => (int) 81,
		'category_id' => (int) 21,
		'title' => 'Choosing a Partner is a Person’s Fundamental Right: SC',
		'description' => '<p>The Supreme Court has observed that <g class="gr_ gr_32 gr-alert gr_gramm gr_inline_cards gr_run_anim Grammar only-ins replaceWithoutSep" id="32" data-gr-id="32">choice</g> of a partner is a person&rsquo;s fundamental right, and it can be a same-sex partner. The observation came on the first day of hearing by a Constitution Bench of petitions challenging the constitutionality of Section 377 of the Indian Penal Code. Section 377 <g class="gr_ gr_33 gr-alert gr_spell gr_inline_cards gr_run_anim ContextualSpelling multiReplace" id="33" data-gr-id="33">criminalises</g> private consensual sex between adults.</p>
<h3>Key Observations</h3>
<ul style="list-style-type: square;">
<li>The right to sexual orientation was meaningless without the right to choose a partner.</li>
<li>The observations were drawn from the March 2018 judgment in the Hadiya case, which held that influencing an adult&rsquo;s choice of partner would be a violation of the fundamental right to privacy.</li>
<li>It is to be further tested whether Section 377 stood in conformity with Articles 21 (right to life), 19 (right to liberty) and 14 (right to equality) of the Constitution.</li>
</ul>
<h3>Background</h3>
<ul style="list-style-type: square;">
<li>Section 377 of the IPC dates back to 1861 and <g class="gr_ gr_27 gr-alert gr_spell gr_inline_cards gr_run_anim ContextualSpelling multiReplace" id="27" data-gr-id="27">criminalises</g> sexual activities against the order of nature and the ambit of this law extends to any sexual union involving penile insertion.</li>
<li>In 2009, in a landmark judgment, the Delhi High Court had described Section 377 as a violation of the fundamental rights guaranteed by the Constitution. Following this, religious groups moved the Supreme Court for a direction against the verdict.</li>
<li>However, the Supreme Court in 2013 overruled the Delhi High Court&rsquo;s order and reinforced <g class="gr_ gr_28 gr-alert gr_spell gr_inline_cards gr_run_anim ContextualSpelling multiReplace" id="28" data-gr-id="28">criminalisation</g> of homosexuality stating that changes to the legislation should be made by the Parliament</li>
<li>This judgment was highly criticised by the LGBTQ community in India and was seen as a setback for human rights.</li>
<li>In January 2018, the Supreme Court observed that the 2013 judgment requires to be reconsidered because of the constitutional issues involved.</li>
</ul>',
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