Interlinking and Hyperlinking Case Log Diary

Submitted by

Harshal Pareek

B.A. LL.B. Division: D PRN: 17010223084

Of Symbiosis Law School, Noida

Symbiosis International (Deemed University), Pune

In

March, 2019

Under the guidance of

Dr. Kanan Divetia

Mr. Ankur Sharma

Assistant Professor

1 | Page
 Certificate

The project entitled “Interlinking and Hyperlinking” submitted to the Symbiosis Law School, NOIDA for
“Case Studies: Interlinking and Hyperlinking” part of internal assessment is based on my original work
carried out under the guidance of Dr. Kanan Divetia & Mr. Ankur Sharma from December 19, 2018 to
March 26, 2019. The research work has not been submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the thesis has been duly acknowledged.

I understand that I myself could be held responsible and accountable for plagiarism, if any, detected later.

Signature of the candidate

Date: 26/03/2019
 Acknowledgement

I have taken efforts in this project. However, it would not have been possible without the kind support and
help of many individuals and organizations. I would like to extend my sincere thanks to all of them.

I am highly indebted to Dr. Kanan Divetia & Mr. Ankur Sharma or his guidance and constant supervision
as well as for providing necessary information regarding the project & also for their support in completing
the project.

I would like to express my gratitude towards all staff member of Symbiosis Law School, Noida especially
to library in charge and librarian for their kind co-operation and encouragement which help me in
completion of this project and providing us with all the resources required to make this project.

My thanks and appreciations also go to my friends in developing the project and people who have willingly
helped me out with their abilities.
 CASE I

Name of the Case-

Shafin Jahan V. Ashokan K. M. & Ors, 2018 SC 343

Name of the Court-

Supreme Court of India

Bench-
Dipak Misra,

Ajay Manikrao Khanwilkar,

Dhananjaya Y. Chandrachud

Relevant Facts-
❖ Akhila aka Hadiya, a 24-year-old girl was born in a Hindu family residing in Kottayam, Kerala. At
the age of 21 she joined a school in Salem to seek a Bachelor’s degree in Homeopathic Medicine and
Surgery.
❖ On 6 January, 2016, Akhila left her parental home in Selam, where she was staying with her
companions Faseena and Jaseena. Akhila's parents filed a police complaint and claimed that her
companions Faseena and Jaseena, and their father Aboobacker, had taken Akhila far away from their
custody.
❖ A charge sheet was subsequently filed against Aboobacker by the police authorities. Be that as it may,
in spite of the police case, Akhila couldn't be traced.
❖ Following this, Akhila's dad Ashokan filed a writ of habeas corpus before the Kerala High Court.
Akhila placed her under the steady gaze of the court on January 19, and testified the court regarding
the situations under which she had left her home and parents and told the court that she has converted
over to Islam and taken the name Hadiya. She also confessed before the court that she was a
practicing Muslim. She claimed that she had abandoned her home on January 2, 2016, because of her
dad's displeasure towards her following Islam. Thereafter Akhila went straight to Jaseena's and
Faseena's house.
 ❖ Akhila married Shafin Jahan on December 19, 2016 according to the Muslim laws and traditions.
However, the Kerala High Court nullified and called this wedding a sham and a way to export
Akhila out of the country. The Court also observed the possibility of involvement of radical
organizations involved in forced conversions and exporting young girls for recruitment in
organizations like ISIS.
❖ The decision of the Kerala High Court was subsequently challenged by a Special Leave Petition filed
by Shafin after two months of nullification of the marriage between him and Hadiya by the Kerala
High Court on the Habeas Corpus petition by Mr. Ashokan, Hadiya’s father. Supreme Court gave its
decision in the above stated matter on 8th March, 2018.

Rules Applied-
Article 14 of the Indian Constitution:

Article 19 (1) (a), (d) and (e) of the Indian Constitution:

Article 21 of the Indian Constitution:

Muslim personal law pertaining to Marriage.

Analysis-
 The Kerala High Court was unjustified in quashing the marriage between Shafin Jahan and Hadiya as
these are two consenting individuals who have married after following all the rituals and customs
that are necessary for concluding a valid marriage under the Muslim Law. Moreover, it is the right of
an individual to marry a partner of his/her choice and follow a faith that he/she wants to and these
rights are enshrined under Article 21 and 25 of the Indian Constitution read with the Equality
Principle enshrined under Article 14.
 Writ of Habeas Corpus- The writ of Habeas Corpus cannot be allowed in the present matter as the
basic essential grounds for allowing a writ of Habeas Corpus is illegal detention without the consent
of the individual whose body is demanded. Consent plays a very essential role in cases relating to
private parties who are asked to produce a person. In the present matter Hadiya who was an adult
was residing with her companions and later on with Sainaba on her volition which she testified in the
Honourable Court of Justice and therefore there is no question of illegality in the present matter as
such any. Hence, the writ of Habeas Corpus cannot be allowed in the present matter.
 Doctrine of parens patriae- The courts cannot invoke the doctrine of parens patriae in every case
that comes before it. The said doctrine can only be invoked under exceptional circumstances i.e. the
events where the person is question before it is either mentally incompetent or have not come of age
and it is proved to the satisfaction of the court that the said person has either no legal guardian or
have an abusive or negligent parent/legal guardian. Hadiya being a grown adult and of sound mind as
 evident from her testimony before the Honourable High Court of Kerala and the Honourable
Supreme Court cannot be subjected to the said doctrine.
 Social impact and the prevailing circumstances-The love-jihad discourse has today entered the
vocabulary of public discourse, embraced by sections of the dominant Left, including prominent
rationalists. Interestingly, its growth coincided with the rise and spread of another term’s usage in the
state—moral policing. The phrase gained currency and came to be associated with agitations against
moral policing, such as the “Kiss of Love” protests in 2014. The two terms actually reveal the broad
contours of the ongoing social struggle in this society. In the second decade of the twenty-first
century, the overwhelming social issue, it appears, is seduction. The talk of love-jihad essentially
points to seduction overpowering women in the Hindu and Christian communities: its primary claim
was that young Muslim men were seducing young women of these communities to recruit them for
reprehensible Islamist terrorism. To that extent, this talk policed the boundaries of communities and
controlled women’s movement on and past these. This case is significant in rationalising this debate
and played the major role in the discourse, as it clearly defined the extent that the state and the courts
can endeavour into the lives of the consenting people in making their life decisions.

Conclusion:
It is concluded that the case of Shafin Jahan v. Ashokan gives an illuminating explanation to the collusion of
Family Law with constitutional law. The Honourable Supreme Court in its ratio struck down the decision of
Kerala High Court in the writ petition of Habeas Corpus filed by Ashokan by virtue of which the marriage
between Hadiya and Shafin Jahan was also annulled. The Court sent back Hadiya to her hostel to pursue her
future course of action on her volition under the tenets of law in India. The decision of the Honourable
Supreme Court to overturn the decision of Kerala High Court is legally sound and backed by logical
reasoning. The application of the doctrine of Parens Patriae by the Kerala High Court was erroneous in
nature and the same very well delineated by the Supreme Court in its detailed judgement. However, it is
realised that the present matter could have been dealt in a better manner by the Honourable Supreme Court
as well as it also deviated from the main subject matter in the initial proceedings of the case which caused
unjust mental agony and harassment to Hadiya.
 CASE II

Name of the case-

Navtej Singh Johar & Ors. v. Union of India

Name of the Court-

Supreme Court of India

Bench-
Justice Dipak Mishra

Justice R.M Nariman

Justice A.M Khanwilkar

Justice D.Y Chandrachud

Justice Indu Malhotra

Relevant facts-
On 27 April 2016, five people filed a new writ petition in the Supreme Court challenging the
constitutionality of Section 377 of the Indian Penal Code. The petitioners claimed that the issues which they
raised in their petition were varied and diverse from those raised in the pending curative petition in the 2013
Koushal v. Naz case, in which the Supreme Court had upheld the constitutionality of Section 377. The Naz
had been earlier referred to a five-judge bench in order to decide whether the curative petition could be
accepted for consideration. The petitioners were dancer Navtej Singh Johar, journalist Sunil Mehra, chef
Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, and businesswoman Ayesha Kaprig. This case was the
first instance wherein the petitioners argued that they had all been directly aggrieved because of Section 377,
alleging it to be a direct violation of fundamental rights.

Rules Applied-
Section 377, Indian Penal Code (IPC)

Article 14, Constitution of India

Article 15, Constitution of

India Article 19, Constitution

of India Article 21,

Constitution of India

Analysis-
 The petitioners submitted that the harassment and discrimination of the gay and transgender
community in India resulting from the continued existence of Section 377 affected the rights of that
community which were guaranteed under the Constitution, including the right to equality, the right to
non-discrimination, the right to privacy, the right to life and liberty, and the right to health. They
argued that the Constitution protects the right to privacy (which is not expressly mentioned) under
the right to life and liberty enshrined in Article 21. Furthermore, they submitted that the right to non-
discrimination on the ground of sex in Article 15 should not be read restrictively but should include
“sexual orientation”. They also contended that the criminalisation of homosexual activity by Section
377 discriminated on the grounds of sexual orientation and was therefore contrary to the
Constitutional guarantee of non-discrimination under Article 15. Finally, the petitioners stressed that
courts in other jurisdictions have struck down comparable provisions relating to sexual orientation on
the grounds that they violated the rights to privacy, dignity and equality.

 Both the respondents submitted legal opinions in respect to the writ petition. Interestingly, however,
the two ministries came down on opposite sides of the legal argument offering completely
contradictory affidavits. The MHA, on one hand, argued for the retention of Section 377 on several
grounds. First, that it provided for the prosecution of individuals for the sexual abuse of children.
Second, that it filled a gap in the rape laws. Third, that if removed it would provide for flood gates of
delinquent behaviour which would not be in the public interest. Finally, MHA submitted that Indian
society does not morally condone such behaviour and law should reflect societal values such as
these.By contrast, the Ministry of Health and Family Welfare (in conjunction with the National Aids
Control Organisation) presented evidence in support of the Naz Foundation’s submission – that the
continued existence of Section 377 is counter-productive to the efforts of HIV/AIDS prevention and
treatment They argued for the removal of Section 377 stating that it makes a large number of people
in high risk categories in relation to HIV/AIDS reluctant to come forward for treatment due to a fear
of law enforcement agencies, and that in driving homosexuality underground it increases risky
behaviour such as unprotected sex.

 The Court noted that the Indian Constitution does not contain an explicit provision in relation to the
right to privacy, however the Supreme Court has interpreted such a right on the basis of Article 19
 protecting freedom of expression and movement, and Article 21 protecting the right to life and
liberty. The Court made extensive reference to United States jurisprudence on the right to privacy as
read into the Constitution, including Roe v. Wade and Planned Parenthood of South-eastern Pa v.
Casey. It then went on to consider the development of this right in India including the case of
Kharak Singh v. The State of U.P., which traced the right to privacy in India to the right to ‘life’ in
Article 21 of the Constitution. The Court inferred that Section 377 denies the dignity of such
individuals, criminalises their identity and violates their right to privacy which is protected within the
ambit of Article 21 of the Constitution.

 The Court reiterated the test set by Article 14 that any distinction or classification be based on an
intelligible differentia which has a rational relation to the objective sought and is not unfair or unjust.
Section 377, the Court said, does not distinguish between public and private acts, or between
consensual and non-consensual acts thus does not take into account relevant factors such as age,
consent and the nature of the act or absence of harm. The Court stated that such criminalisation in the
absence of evidence of harm seemed arbitrary and unreasonable. In considering the legal principles
imposed by Article 14 of the Constitution the Court took into account the Declaration of Principles
of Equality as current international understanding of Principles on Equality. Drawing on Principles 1
(right to equality), 2 (equal treatment) and 5 (definition of discrimination) the Court emphasised the
need to include sexual orientation among protected grounds of discrimination and build indirect
discrimination and harassment into any consideration of the right to equality. This led the Court to
conclude that Section 377 discriminated against a particular community in violation of Article 14 of
the Constitution.

 Article 15 was described by the Court as a particular application of the general right to equality
under Article 14. The Court considered the petitioner’s argument that the reference to ‘sex’ in Article
15 should be interpreted as including sexual orientation on the basis that discrimination on the
grounds of the latter is based on stereotypes of conduct on the basis of sex. The Court itself referred
to the Human Rights Committee’s decision in Toonen v. Australia, in which the Tasmanian
Criminal Code which criminalised sexual acts between men, was considered a violation of Article 2
of the International Covenant on Civil and Political Rights, where a reference to ‘sex’ was taken as
including sexual orientation. The Court declared that Section 377 of the Indian Penal Code, insofar
as it criminalises consensual sexual acts of adults in private, violates Articles 21, 14, 15 and 19 of the
Constitution.
 CASE III

Name of the Case-

Joseph Shine v. Union of India

Name of the Court-

Supreme Court of India

Bench-
Justice Deepak Misra

Justice A.M Khanwilkar

Justice RF Nariman

Justice Indu Malhotra

Justice D.Y Chandrachud

Relevant Facts-
Section 497 of Indian Penal Code criminalized adultery. It imposed culpability on a man who engages in
sexual intercourse with another man’s wife. Women on the other hand were exempted from prosecution.
This section was however inapplicable when a husband engaged in sexual intercourse with an unmarried
women.

Joseph Shine, a non- resident Keralite filed a PIL under Article 32 of the Constitution challenging
constitutionality of adultery as a crime under Section 497 of Indian Penal Code.

The prime reason behind filing this petition was to protect men from being punished for having extra-
marital relationships by vindictive women or their husbands. He argued that it discriminated against men by
only holding them liable for extra-marital relationships, while treating women like objects.

He believed that Section 497 was an egregious occurrence of sexuality unfairness, authoritative imperialism
and male patriotism, and that, the traditional framework, in which Section 497 was drafted, was no longer
applicable in modern society.

This case compelled the judiciary to rethink about the constitutional validity of Section 497 along with the
other mentioned laws. It turns out to be one of the most remarkable cases in the history of India that brought
out a major change in the society.
Rules Applied-
Section 497, Indian Penal Code (IPC)

Section 498, Indian Penal Code (IPC)

Section 198, Code of Criminal Procedure (CrPC)

Article 14, Constitution of India

Article 15, Constitution of India

Article 21, Constitution of India

Analysis-
 Throughout the judgment, it was pointed out that the nature of Section 497 is arbitrary in nature. It
doesn’t preserve the ‘sanctity of marriage’, for a husband can give consent to let his wife have an
affair with someone else. It serves to preserve the ‘proprietary rights’ a husband has over his wife.
Moreover, the wife cannot file a complaint against her husband or his lover. There are no provisions
to deal with a married man having an affair with an unmarried woman or a widow.
 The second part of the judgment clearly states that ‘A woman cannot be asked to think as a man or as
how the society desires. Such a thought is abdominal, for it slaughters her core identity.’ In a society
like India, the role and expectations of women are deeply rooted in society. So it’s revolutionary for
the Supreme Court to observe that women cannot be forced to act as per society’s will.
 The judgment further adds, ‘And it is time to say that a husband is not the master. Equality is a
governing parameter.’ Activists slammed Section 497, saying that it was totally ‘male- friendly’ and
that as long as it existed, it perpetuated the idea that wife was husband’s property.
 Article 14 guarantees equality to every citizen in India and Article 15 states that no one can be
discriminated on the basis of religion, race, caste, sex, etc. The court observed the very nature of
Section 497 was in contravention to this as it saw women as subordinates of men, and hence went
against the Constitution of India.
 The judgment makes it amply clear that by criminalizing the act, the law was entering into an
extremely private sphere- that of matrimonial life. According to Article 21 of the Constitution,
everyone is guarantees dignity and personal liberty, but by making adultery a criminal offence,
individuals would be deprived of dignity and privacy.
 Since adultery was a moral wrong, and not a public wrong which affected the lives of scores of
others, it didn’t deserve to be classified as a criminal offence. The Apex Court therefore, struck down
the law and decriminalized adultery, though it still continues to be a ground for divorce.
 Case IV

Name of the Case-

Common Cause (A Regd. Society) v. Union of India & Ors., March, 2018.

Name of the Court-

Supreme Court of India

Bench –
Dipak Mishra,

A.K. Sikri,

A.M. Khanwilkar,

D.Y. Chandrachud and Ashok Bhushan

Facts –
2002: Common Cause, a registered society wrote to the Ministries of Law & Justice, Health & Family
Welfare, and Company Affairs, State Governments, on the issue of the right to die with dignity.

2005: Common Cause knocked the doors of Supreme Court under Article 32 of the Constitution with an
objective to declare Right to die with dignity as a fundamental right under Article 21. It prayed before the
Court to issue directions to the Union Government to allow terminally ill patients to execute ‘living wills’ for
appropriate action in the event that they are admitted to hospitals.

2005: As an alternative, Common Cause sought guidelines from the Court on this issue, and the
appointment of an expert committee comprising lawyers, doctors, and social scientists to determine the
aspect of executing living wills.

2014: 3 Judge Bench of the Supreme Court referred the matter to a larger bench, to settle the issue in light of
inconsistent opinions in Aruna Ramchandra Shanbaug vs Union Of India & Ors (2011) and Gian Kaur vs
State of Punjab (1996).

Rule –
Article 21 of the Constitution which guarantees the Right to Life includes the Right to Die
Analysis –
 The Supreme Court has clarified that the judgement in Gian Kaur case cannot be understood to have
stated that passive euthanasia can only be introduced through legislation. It further held that in Gian
Kaur, the word "life" in Article 21 has been construed as life with human dignity and it takes within
its ambit the "right to die with dignity" being part of the "right to live with dignity". This ruling thus
permits the removal of life-support systems for the terminally ill or those in incurable comas. The
court also permitted individuals to decide against artificial life support, should the need arise by
creating a living will.
 The subject of euthanasia is quite controversial and raises an array of sophisticated moral, ethical,
social, philosophical, legal and religious concerns. Broadly there are two groups formed whenever
euthanasia is discussed. The first group is of religion notably Christianity and Islam which don’t
recognize a right to die, believing life to be a divine gift.
 Second group relates to the requirement of consent. The capacity of terminally-ill patients to give
informed consent for their own killing is often questioned. As a reason in past there have been many
campaigns relating to euthanasia some for its support whereas others for its withdrawal. However,
taking into account the interest of people laws has been laid down in support of euthanasia. This is
against the religious beliefs, but for the benefit of society. This shows the clash of law and religion.
It has been observed many a times that law remains ahead of society and religion stays behind the
society.
 Thus, it can be said that this is a judgment in right direction. Those suffering from chronic diseases
are often subjected to cruel treatments. Denying them the right to die in a dignified manner extends
their suffering. Hence, the court is right in declaring Right to Die with Dignity is as a Fundamental
Right as it will help in reducing the pains of those suffering from chronic treatments and they will be
able to die in a dignified manner.
 However, the clamour for Euthanasia has fallen short again with the Supreme Court holding that
Article 21 embodies within itself only the right to 'Passive Euthanasia' and not 'Active Euthanasia'.
Despite all the rhetoric of individual freedom of choice and the right to life being akin to right to die
with dignity, the Supreme Court could not escape from the prejudice that Euthanasia can be used as a
tool by unscrupulous relatives and subject to abuse. The Supreme Court noted that society has fallen
to such levels of depredation that these rights cannot be made absolute and must be subject to
regulatory mechanisms.