12-09-2022

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

RECENT CASE LAW ON ARTICLE

14 AND 15

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

Shayara Bano v. Union of India, (2017) 9 SCC 1

• Five-judgebench declared thepractiseof tripletalaq ‘talaq al biddat’ as unlawful by a 3:2
majority
• Facts:
• Rizwan Ahmed was Shayara Bano’s husband for 15 years. Hedivorced her in 2016 via
talaq–al-bidat (tripletalaq).
• Ms Bano maintained that threepractises – tripletalaq, polygamy, and nikah halala (the
practiseof compelling women to marry and divorceanother man so that their prior husband
might remarry her after tripletalaq) – wereillegal, citing theConstitution’s Articles 14, 15, 21,
and 25.

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

Khehar CJI, for himself and on behalf of Nazeer J

(Minority view)
• Rejected thecontention that the Muslim Personal Law (Shariat) Application Act, 1937 did
not alter the‘personal law’ status of ‘Shariat’; after theenactment of theAct, thesubjects covered
by it ceased to be‘personal law’ and became‘statutory law’.
• Held: TheMuslim personal law – Shariat – was not based on any statelegislativeaction,
• thesamecould not betested on thetouchstoneof being a stateaction.
• ‘Talaq-al-biddat’ was a matter of religious faith and not a stateaction and, therefore, there
was no question of violation of any fundamental right.

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

RohintonFali Nariman, J (on behalf of Uday Umesh Lalit, J

also)
• Applying thetest of manifest arbitrariness to thecaseat hand, it is clear that TripleTalaq is a form of Talaq
which is itself considered to besomething innovative, namely, that it is not in theSunna, being an irregular or heretical
form of Talaq.
• this form of Talaq is manifestly arbitrary in thesensethat themarital tiecan bebroken capriciously and
whimsically by a Muslim man without any attempt at reconciliation so as to saveit.
• This form of Talaq must, therefore, beheld to beviolativeof thefundamental right contained under article14 of the
Constitution of India.
• Therefore, the1937 Act, insofar as it seeks to recognizeand enforceTripleTalaq, is within themeaning of theexpression
“laws in force” in article13(1) and must bestruck down as being void to theextent that it recognizes and enforces
TripleTalaq.

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

Kurian J
(Concurring opinion)
• Kurian J, disagreed with Nariman J’s view that 1937 Act was a
legislation regulating triple talaq and could be tested on the anvil of
article 14
• Tripletalaq is prohibited by theQuran and hencehas no legal standing.
• “What is considered wrong in theholy Quran cannot begood in Shariat,” he
added,
• “and what is bad in theology is bad in law.”

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

Navtej Singh Johar v. Union of India,

AIR 2018 SC 4321
• Bench: CJI Dipak Misra, JusticeA.M. Khanwilkar, JusticeRohintonFali Nariman, Justice, D.Y. Chandrachud
and JusticeIndu Malhotra.
• Facts:
• Sec 377 of IPC categorized consensual sex between homosexuals as “unnatural offence” and criminalized it.
• It discriminates a minority solely on theground of their sexual orientation which is analogous to prohibited
ground of sex.
• Issues:
• (1) Whether Section 377 of IPC violates Right to Equality under Article14 of theConstitution?
• (2) Whether discrimination based on sexual orientation under Section 377 of IPC violates Article15 of the
Constitution?

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

JUDGMENT
• Thefive-judgebench of theIndian SupremeCourt unanimously held that Section 377 of theIndian
Penal Code, 1860, insofar as it applied to consensual sexual conduct between adults in private,
was unconstitutional.
• Thebench found that Section 377 discriminates against individuals based on their sexual
orientation and/or gender identity, violating Article14 and 15 of theConstitution.
• Further, they ruled that Section 377 violates therights to life, dignity, and autonomy of personal
choiceunder Article21.
• Finally, they found that it inhibits an LGBT individual’s ability to fully realizetheir identity, by
violating theright to freedom of expression under Article19(1)(a).

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

Joseph Shinev. Union of India, AIR 2018 SC 4898

• Bench: Chief Justice, Deepak Mishra, JusticeA.M khanwilkar, JusticeIndu Malhotra, JusticeD.Y Chandrachud and
JusticeR.F Nariman
• Facts:
• Thepetition was filed by Joseph Shinewho raised question on theconstitutionality of theSection 497 IPC read with Section
198 of Codeof Criminal Procedure, hesaid that this is violativeof Article14, 15 and 21
• Thereason behind this petition was to shield Indian men from being punished for extra marital relationships by vengeful
women or their husbands.
• Further heclaimed that Section 497 is an egregious occurrenceof sexuality unfairness, authoritativeimperialism and male
patriotism.
• Thetraditional framework within which Section 497 was drafted, is not any longer applicablein modern society.
• Thepetitioner claimed theavailability for adultery to bearbitrary and discriminatory on theidea of gender.

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JUDGEMENT

• TheConstitution Bench, delivering four separatejudgments, unanimously held section 497, IPC and section 198,
CrPC, as violativeof articles 14, 15 and 21 of theConstitution.
• Dipak Misra, CJI felt that section 497 affected thedignity and equality of a woman as it treated thehusband as
themaster of his wifeand
• this provision gavelegal sovereignty to onesex over theother sex.
• It was held regarding test of manifest arbitrariness that such classification is unfair and discriminatory and has
no relevancein present times wherewomen havetheir own identity and stand adequatemen in every aspect of life.
• This provision clearly violates Article14.

INDIAN YOUNG LAWYERS ASSOCIATION V. STATE OF

KERALA, AIR 2018 SC (SUPP) 1650
• Bench: CJI Dipak Misra, and Justices A.M. Khanwilkar, R.F. Nariman, D.Y. Chandrachud and Indu Malhotra
• FACT: a writ petition was filed to issue directions to ensure entry of female devotees
between the age group of 10 – 50 years to the Lord Ayappa Temple at Sabarimala which has
been denied to them on the basis of certain usage and customs.
• That the petition seeked declaration of Rule 3(b) of the Kerala Hindu Places of Worship
(Authorisation of Entry) Rules, 1965 as ultra vires of Section 3 of the Kerala Hindu Places of
Worship (Authorisation of Entry) Act, 1965 and violative of Articles 14, 15, 25 and 51A(e) of
the Constitution.TS:

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ISSUES INVOLVED

1. Whether exclusion of women amounts to ‘discrimination’ and thereby violates Articles 14 and 15
of the Constitution?
2. Whether this exclusionary practice constitutes to ‘an essential religious practice’ and cannot be
parted with under Article 25 of the Constitution?
3. Whether the Ayappa Temple is a ‘religious denomination’, and if so, it is permissible to a
religious denomination to violate the constitutional principles embedded under Articles 14, 15,
39(a) and 51A(e)?

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JUDGMENT

• Dipak Misra, CJI and Justices A.M. Khanwilkar held theimpugned ruleultra vires, being arbitrary and
discriminatory to women.
• TheChief Justiceobserved that “Thedualism that persists in religion by glorifying and venerating women as goddesses
on onehand and by imposing rigorous sanctions on theother hand in matters of devotion has to beabandoned.
• Such a dualistic approach and an entrenched mindset results in indignity to women and thedegradation of their
status.
• WhileR.F. Nariman and D.Y. Chandrachud, JJ agreed with theChief Justiceby their separatejudgements, Indu
Malhotra, J dissented.

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DISSENTING OPINION

• J. Indu Malhotra delivered a dissenting opinion stating that theSabarimala templefulfils all conditions of a
religious denomination under Article26 and therefore,
• has a right to manageits own affairs. Shefurther said that
• theStatemust respect therights of certain sects and their freedom to practicetheir faith.
• Sheopined that Article14 cannot overridethefreedom under Article25.
• Shealso iterated that Rule3(b) does not conflict with the1965 Act and dismissing theArticle17 argument sheheld
that
• untouchability is to beconstrued only in referenceto ‘caste’ and not discrimination on thebasis of ‘gender’.

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