F.Y. LL.B. Notes: Asst. Prof.

Maitreyee Raut
Module 4: Judicial Decisions

INDEX
Sr.No. CASE LAW CITATION
1 Vishaka and others v. State of Rajasthan AIR 1997 SC 3011
2 M. C. Mehta v. Union of India AIR 1987 SC 965.
3 D. K. Basu v. State of West Bengal AIR 1997 SC 3017.
4 Aruna Shanbaug v. Union of India AIR 2011 SC 1290
5 Joseph Shine v. Union of India AIR 2018 SC 4898
6 Indian Young Lawyers Association v. State of AIR 2018 SC 1690
Kerala

1. Vishaka and others v. State of Rajasthan AIR 1997 SC 3011

Judges: J.S. Verma C.J.I., Mrs. Sujata V. Manohar and B.N. Kirpal. JJ.

Introduction: This writ petition was filed for the enforcement of the fundamental rights of
working women under Arts. 14, 19 and 21 of the Constitution of India. This petition was
filed by a women rights activist group Vishaka, in order to highlight the reality of gender
equality and to prevent sexual harassment of working women in all work places through
judicial process, and to fill the vacuum in existing legislation.

Facts:
1. The immediate cause for the filing of this writ petition is an incident of alleged brutal
gang rape of a social worker in a village of Rajasthan.
2. Bhanwari Devi, a woman from Village Bhateri, Rajasthan started working in Women’s
Development Program run by the Government of Rajasthan. She was employed as
‘Saathin’, which means friend.
3. The Saathin were assigned to prevent and report any Child marriage happening in the
Village. There was a child marriage in the affluential Gujjar Family of an infant child.
 Bhanwari Devi tried all her best to stop the family from doing a child marriage. She
reported against the Marriage, as a result, the Sub-divisional Officer along with the
Deputy Superintendent of Police stopped the Marriage on 5th May 1992. However, the
next day, this child marriage was performed.
4. Entire village boycotted Bhanwari Devi and her family. On 22nd September 1992, four
members of Gujjar Family, Ram Sukh Gujjar, Gyarsa Gujjar, Ram Karan Gujjar, Badri
Gujjar and Shravan Sharma attacked Bhanwari Devi and her husband, tied her
husband’s hands and brutally gangraped Bhanwari Devi.
5. When the couple went to report the crime to the Police, the Police tried all means to
delay the investigation. She was prevented by all means to seek justice for herself.
Inspite of facing so much criticism, she managed to lodge a complaint.
6. Her medical examination was delayed by 52 hours. The medical examiner did not
report commission of rape, however mentioned the age of the victim.
7. The Trial Court acquitted all the accused on the grounds of lack of evidence. A local
MLA Dhanraj Meena supported them. The Trial Court refused to believe the statement
of Bhanwari Devi, that her husband was tied and he could not do anything, while she
was being raped.
8. The outcome of this case enraged the women organizations. These organizations
came together to raise their voice against this incident. A women’s rights group
consisting of Women rights activists and NGOs filed a Public Interest Litigation in the
Supreme Court. A PIL is a case or petition filed before a court to protect, safeguard or
enforce public interest. Public interest means the interest or right belonging to the
society, a particular class of the community or a group of people. The rule of locus
standi is relaxed when a genuine PIL is filed in the Court.

Issues raised:
1) Whether the brutal gang-rape as consequences of doing her assigned work and the
decision given by the Trial Court in the Bhanwari Devi case has violated Bhanwari
Devi’s fundamental rights guaranteed to her under Article 14, 15, 19(1)(g) and 21?
2) Whether the Court could apply International Laws in absence of applicable measures
under the existing laws in India?
3) Whether the employer has any responsibility when sexual harassment is done to or
by its employees?

Arguments by Petitioner:
The petitioner had filed a writ petition seeking the writ of Mandamus.
 Indecent acts of Sexual harassment of women at workplace violate their fundamental
rights enshrined under Article 14 (Right to equality), 15 (Right against discrimination
on the grounds of sex), 19(1)(g) [Right to work in a safe environment] and 21 (Right
to live with dignity).
 There is no specific legislation on the issue of protection of women from sexual
harassment at the workplace. This leads to a situation of unsafe environment, making
it more challenging for women to work outside, hindering the process to live a
meaningful life and earn livelihood.
 India has ratified to the Convention on the Elimination on all forms of Discrimination
against Women, 1949 (CEDAW). As a result, it oblige the State to implement laws
that eradicate gender discrimination and prevent sexual harassment of women at the
workplace committed against women.
 They highlighted that it is duty of the Courts to implement rules and regulations to
prevent such crimes when there is no specific legislation to deal with the said issue.
 They pointed out that Bhanwari Devi case is not the only case and there are many
women who have been victims of derogatory treatment at workplace but could raise
a voice for themselves, out of fear and shame.

Arguments for Respondent:

 The notice of the petition was given to the State of Rajasthan and the Union of India.
The Solicitor General appearing for Union of India supported the arguments of the
Petitioner. The amicus curiae Fali S. Nariman, along with Ms. Naina Kapur and Ms.
Meenakshi assisted the Court.
 They suggested that all the States to file a report on sexual harassment and the
necessary measures to protect women in case of such incidents.

Judgement:
 The Court, while dealing with the first issue, stated that such acts of sexual
harassment are a gross infringement of the fundamental rights of the person affected.
 The Right to equality guaranteed under Article 14, equal treatment before law is
robbed when a woman is denied justice.
 The Right against discriminatory treatment as guaranteed under Article 15 is denied
to a woman when she faces attack on her modesty because of her gender.
 It also violates the right to practise or carry on any profession or to carry any
occupation, trade, or business given under Article 19(1)(g) of the Indian Constitution.
This right depends upon a guarantee of safe and secure working environment that
promotes growth.
 Article 21 has a wide connotation, and it includes the right to a safe working
environment and the right to live with dignity, such acts affect the mental sanity and
respect of women hence it is a violation of Article 21 as well.
The violation of such rights allows the victim to approach the Hon'ble Supreme Court
under Article 32 of the Indian Constitution to seek a remedy for the purpose of enforcing
her fundamental rights guaranteed under Part III of the Indian Constitution.

Article 42 directs the State must make provisions to secure humane conditions of work.
Article 51A(g) obliges every citizen of India to renounce practices derogatory to the dignity
of women.

The Court, while dealing with second issue, In absence of domestic laws, to check
in the evil of sexual harassment of women at workplace, the contents of International
agreement can play an important role. Any International Covenant not inconsistent
with the Fundamental Rights guaranteed under Constitution of India, then they must
be read together in order to enlarge the scope of rights of people, to promote
constitutional guarantee.
This is implicit in the following Articles of Constitution:
Article 51: The State shall endeavour to foster respect for international law and treaty
obligations.
Article 253 empowers the Parliament to make laws for the whole or any part of territory
of India in order to implement International treaty or agreement.
In 1993, the Government of India ratified Convention on the Elimination of All Forms of
Discrimination against Women. Its provisions that the State must provide Right to work,
Right to health and protect women from gender-specific violence such as sexual
harassment at the work place, binds India.

The obligation of this Court under Article 32 of the Constitution for the enforcement of
these fundamental rights in the absence of legislation must be viewed along with the role
of judiciary envisaged in the Beijing Statement of Principles of the Independence of the
Judiciary in the LAWASIA region. These principles were accepted by the Chief Justices
of the Asia and the Pacific in 1995. Under which the Court must uphold the human rights
and ensure every person is living securely under rule of law.

The Court, while dealing with the third issue, held that it is the duty of employers
to take all necessary measures to prevent such incidents of sexual harassment from
happening. The organizations should have proper procedures and forums to deal with
such issues and dispose them off effectively. The Hon'ble Supreme Court framed the
guidelines to prevent sexual harassment at the Workplace, known as Vishaka
Guidelines that were to be treated as law declared under Article 141 of the Indian
Constitution.
The guidelines are as follows:
 Duty of the Employer: It shall be the duty of the employer or other responsible
persons in work places or other institutions to prevent or deter the commission of acts
of sexual harassment and to provide the procedures for the resolution, settlement or
prosecution of acts of sexual harassment by taking all steps required.
 Definition: The Court defined what amounts to Sexual Harassment - includes such
unwelcome sexually determined behaviour (Whether directly or by implication) as:
a) Physical contact and advances
b) a demand or request for sexual favours
c) sexually coloured remarks
d) showing pornography or
e) any other unwelcome physical, verbal or non - verbal conduct of sexual nature.
Where any of these acts is committed in circumstances where under the victim of such
conduct has a reasonable apprehension that in relation to the victim’s employment or
work, whether she is drawing salary, or honorarium or voluntary, whether in
Government, public or private enterprise; such conduct can be humiliating and may
constitute a health and safety problem.
 Preventive Step: All employers or persons in charge of work place whether in the
public or private sector should take appropriate steps to prevent sexual harassment.
Without prejudice to the generality of this obligation they should take the following
steps:
a) Express prohibition of sexual harassment as defined above at the work place
should be notified, published and circulated in appropriate ways.
b) The Rules/Regulations of Government and Public Sector bodies relating to
conduct and discipline should include rules/regulations prohibiting sexual
harassment and provide for appropriate penalties in such rules against the
offender.
c) As regards private employers, steps should be taken to include the aforesaid
prohibitions in the standing orders under the Industrial Employment (Standing
Orders) Act, 1946.
d) Appropriate work conditions should be provided in respect of work, leisure, health
and hygiene to further ensure that there is no hostile environment towards women
at work places and no employee woman should have reasonable grounds to
believe that she is disadvantaged in connection with her employment.
 Criminal Proceedings: Where such conduct amounts to a specific offence under
the Indian Penal Code or under any other law, the employer shall initiate appropriate
action in accordance with law by making a complaint with the appropriate authority. In
particular, it should ensure that victims, or witnesses are not victimized or
discriminated against while dealing with complaints of sexual harassment. The victims
of sexual harassment should have the option to seek transfer of the perpetrator or
their own transfer.
 Disciplinary Action: Where such conduct amounts to misconduct in employment as
defined by the relevant service rules, appropriate disciplinary action should be initiated
by the employer in accordance with those rules.
 Complaint Mechanism: Whether or not such conduct constitutions an offence under
law or a breach of the service rules, an appropriate complaint mechanism should be
created in the employers organization for redress of the complaint made by the victim.
Such complaint mechanism should ensure time bound treatment of complaints.
 Complaints Committee: The complaint mechanism, as abovementioned, should be
adequate to provide, where necessary, Complaints Committee, a special counsellor
or other support service, including the maintenance of confidentiality. The Complaints
Committee should be headed by a woman and not less than half of its member
should be women. Further, to prevent the possibility of any undue pressure or
influence from senior levels, such Complaints Committee should involve a third party,
either NGO or other body who is familiar with the issue of sexual harassment. The
Complaints Committee must make an annual report to the Government department
concerned of the complaints and action taken by them.
 Workers Initiative: Employees should be allowed to raise issues of sexual
harassment at workers meeting and in other appropriate forum and it should be
affirmatively discussed in Employer - Employee Meetings.
 Awareness: Awareness of the rights of female employees in this regard should be
created in particular by prominently notifying the guidelines in a suitable manner. The
word ‘prominently’ means which is visible, legible and understandable for all.
 Third Party Harassment: Where sexual harassment occurs as a result of an act or
omission by any third party or outsider, the employer and person in charge will take
all steps necessary and reasonable to assist the affected person in terms of support
and preventive action.
The Supreme Court directed that the above guidelines and norms would be strictly
observed in all work places for the preservation and enforcement of the right to
gender equality of the working women. These directions would be binding and
enforceable in law until suitable legislation is enacted to occupy the field. With this, the
writ petition was disposed off. These guidelines later became the foundation for
enactment of law - The Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013.

2. M. C. Mehta v. Union of India AIR 1987 SC 965

Judges: P.N. Bhagwati - Chief Justice of India, D.P. Madon, G.L. Oza

Introduction: A Public Interest Litigation filed by Environmental Activist and Advocate M.

C. Mehta seeking closure of an Industrial unit, which recently leaked a hazardous gas,
endangering human lives. The question before the Hon’ble Supreme Court is whether to
close down the industry forever thereby affecting the workers’ employment or to grant
permission to restart the Unit, by enforcing strict safety compliances.

Facts:
1. Shriram Foods and Fertilizer Industries, a subsidiary of Delhi Cloth Mills Ltd.
manufactured caustic soda, chlorine, hydrochloric acid, stable bleaching powder,
superphosphate, vanaspati, soap, sulphuric acid, alum anhydrous sodium sulfate
through several units. All these units were established in a single complex of 76 acres.

2. Densely populated colonies surrounded this industrial unit, with a population of about
two lakh people.

3. One of the plants of Shriram produced Caustic Soda, a by-product of Chlorine

Chemical, which was hazardous to human health in case of accidental leakage.

4. The petitioner-in-person M.C. Mehta filed the first Writ Petition in 1985 under Article
32 of the Constitution of India to seek a direction for the closure of various industrial
units owned by Shriram Foods & Fertilisers Industries since they were located in a
heavily populated area in Delhi and were hazardous to the people living in the vicinity.

5. In the wake of the Bhopal Gas leak, the Labour Ministry of the Government of India
commissioned "Technica", a UK firm of experts, to examine Shriram Unit and give a
report on areas of concern. They submitted a preliminary report in July 1985, however
there was no in-depth investigation.
6. When the same issue was raised in the Parliament in March 1985, the Delhi
Administration constituted an Expert Committee under the Chairmanship of Mr.
Manmohan Singh. This Committee made various recommendations concerning safety
and pollution control measures to minimize hazards to the workmen and the public.
They held that the chlorine plant cannot be restarted unless these recommendations
are strictly complied with.

7. On 4th December 1985, a tank of Oleum gas collapsed and tons of Oleum gas leaked
from one of the units of Shriram. This acid reacted with water, which was misguidedly
sprayed at that time to neutralize effect. It created a dangerous ga cloud, which
travelled low to the ground, over 10 km. It caused severe discomfort to lakhs of people
got exposed, they felt choking, burning to the eyes and nauseating sensation.
Fortunately, the cloud did not linger over any area. However, the damage was already
done. Over 700 people were hospitalized, 3 succumbed gradually due to the ill effects
of exposure. A practising Advocate in Tis Hazari Court died due to inhaling of oleum
gas.

8. Within 2 days, on 6th December 1985, another minor leakage of Oleum Gas took
place.

9. Shriram General Manager and two officials were arrested but subsequently released
on bail. Due to public outrage, the Delhi Administration had to order closure of the
entire Shriram Unit.

10. Shriram Industry filed a Writ petition challenging the validity of the Closure Order.

11. Supreme Court took certain steps before hearing the writ petitions,
- They appointed a team of experts called the "Nilay Choudhary Committee" to
perform an inspection of the caustic chlorine plant and to report whether the
recommendations of the Manmohan Singh Committee were properly implemented
or not. They reported that Shriram Management had complied with most of the
recommendations.
- The Court directed the petitioner, that he can appoint his own team of experts to
examine possible hazards from the plant to the workmen and common people.
 - It appointed the Chief Metropolitan Magistrate before whom the victims of oleum
gas leakage can claim compensation. The Court also directed the Secretary of
Delhi State Legal Aid and Advice Board to ensure the medical checkup of the
victims by experts to gather evidence against the compensation claimed in the
incident.
12. On 7th December 1985, The Inspector of Factories ordered ban on Shriram from
operating Oleum and Chlorine Plants till the safety measures were adopted. A show
cause notice was issued by Asst. Commissioner of Factories by Municipal Corporation
Delhi to show cause why its licence should not be cancelled.
13. On 31st January 1986, the Court appointed a Committee consisting of Manmohan
Singh, Prof. P Khanna, Dr. Sharma and Shri Gharekhan to verify whether the
recommendations of Manmohan Singh Committee and Nilay Choudhary Committee
were complied or not. They gave a satisfactory report as to compliance of majority of
the recommendations.
14. The question before the Court that in the view of all the recommendations complied
by the Shriram Unit, should the Chlorine plant be allowed to restart.

Arguments by the Petitioner:

- The petitioner who appeared in person submitted vehemently and passionately that
the Court should not permit the caustic chlorine plant to be restarted because there
was always an element of hazard or risk to the community in its operation.
- He urged that chlorine is a dangerous gas and even if the utmost care is taken the
possibility of its accidental leakage cannot be ruled out.
- The Aggarwal Committee, formed by Petitioner, inspected the plant and held that it is
not safe to function a Chlorine plant in densely populated area; rather it must be re-
located at 10 km away from urban area for safety purpose.

Argument by other parties:

 The learned counsels for Lokahit Congress Union and Karmachari Ekta Union
submitted that permanent closure of Chlorine plant would result in removal of 4000
workers from jobs.
 The Add. Solicitor General on behalf of Union of India and Delhi Administration stated
that only if the Court is satisfied that Shriram Management has complied with all
recommendations, it may allow restart of the plant, but Strict conditions be imposed
to ensure safety of workers and local people.
 Advocate for Shriram pleaded the Court that
 All recommendations of Manmohan Committee and Nilay Choudhary Committee
have been complied with.
 Every necessary step has been taken to ensure safe operation of Chlorine plant,
there was no danger of Chlorine gas. Any possibility of small leakages can be
contained easily.
 Permanent closure would lead to unemployment of 4000 workmen.
 This Closure is leading to unavailability of Chlorine to Delhi Water Supply
Undertaking and related issues.

Order of Supreme Court: After many deliberations, the Supreme Court agreed to permit
Shriram to reopen its Chlorine Vanaspati and other plants. It asked the Central Board of
Pollution to give temporary consent. The Court laid down several conditions that shall be
strictly followed by Shriram and if at any time it is found that even if one condition is
violated, the consent be withdrawn.

 The Court constituted an Expert Committee of Manmohan Singh, P. R. Gharekhan,

Prof. P. Khanna of IIT Bombay, to inspect the Caustic Chlorine Plant at least once in
a fortnight, and examine whether the Manmohan Singh Committee and Nilay
Choudhary Committee recommendations are being scrupulously followed or not. This
committee shall submit the report to the Court immediately after undertaking
examination of the plant.
 One operator shall be personally responsible for each safety device or measures
of the Caustic Chlorine, his duty is not just to report non-functioning or mal-functioning
of safety measures but also to shutdown the entire plant, till the safety device is
repaired and restored.
 The Chief Inspector of Factories or any Senior Inspector duly appointed by him will
inspect the Caustic Chlorine plant at least once a week, by giving surprise visit to
 examine whether all the Expert committee recommendations are complied with or not.
In case of any discrepancy, it will be open to the Labour Commissioner and the Chief
Inspector to take appropriate action.
 The Central Board for Pollution Control will depute a Senior Inspector to pay
surprise visit to check whether the effluents discharged from the Vanaspati plant
comply to the standards laid down by the Pollution Control Authority.
 The Chairman and Managing Director of the Delhi Cloth Mills Ltd. (owner of Shriram
Food and fertilisers Ltd.) to give an undertaking that they will be personally
responsible in case there is any escape of Chlorine gas and it results in death or injury
to the workmen or the people living in the vicinity. They shall be liable to pay
compensation.
 A Committee shall be formed consisting of three members of Lokahit Congress Union
and three members of Karamchari Ekta Union to look after the safety arrangements
at the Caustic Chlorine Plant. They are entitled to ask any relevant information from
the Shriram Management. In case the Management does not pay heed to this
Committee’s requests then they may report it to the Labour Commissioner.
 There shall be a board put in each department of the Chlorine plant as well as at the
gate of premises, in English and Hindi to describe the effects of Chlorine gas on
human body, and what immediate treatment must be taken in case the Chlorine gas
leakage affects people.
 Every worker in the Caustic Chlorine Plant must be properly trained regarding the
functioning of Plant, necessary equipment, precautions to be taken in case of Gas
leakage. Refresher course and Mock trials must be taken to make each worker aware
of the steps to be taken in case of Gas leakage.
 Install loudspeakers all around the factory premises to give timely warning and
adequate instructions to the people residing in vicinity, in case of Gas leakage.
 To provide essential safety apparels like gas mask helmet, safety belt to workers of
the Caustic Chlorine plant, the Management, to ensure good health and fitness of the
workers, carry out regular medical check-up.
 The Shriram Management to deposit Rs. 20 Lakhs in the Court as a security to pay
compensation to the victims of Oleum gas leak.
The Court directed the Shriram Management to pay the Petitioner M. C. Mehta, a sum of
Rs. 10,000/- as a token of appreciation and to meet the costs undertaken. It directed the
Government of India to develop a national policy for management of chemical industries,
a green belt of 1 to 5 k.m. width be made around hazardous industries, to prevent large
human habitation grow around them.

3. D. K. Basu v. State of West Bengal AIR 1997 SC 610

Judges: Kuldip Singh, Dr. A. S. Anand

Introduction: In this case, the Supreme Court provided guidelines related to the arrest
or detention to prevent custodial violence.

Facts:
- The matter of custodial violence was brought before the court by Dr D.K. Basu,
executive chairman of the Legal Aid Services of West Bengal to the Chief Justice of
India through a letter. On 26th August 1986, Mr. Basu posted this letter based on news
of custodial violence given in a newspaper. He sent a letter to the then Chief Justice
of India, Justice Ranganath Mishra after several deaths were reported in 1986 and
recommended that the Court should develop "custody jurisprudence" and formulate
modes for awarding compensation.
- The Chief Justice considered it as a matter of grave concern and treated it as a writ
petition invoking the Court's original jurisdiction under Article 131 of the Constitution
of India.
- Even though Section 25 of the Indian Evidence Act 1872 clearly says that confessions
made in front of police officers do not hold any evidentiary value in the eyes of the law,
police officers exert pressure on the prisoners either to solve cases quickly or for
personal bias.
- The precious right to life under Article 21 of the Constitution cannot be denied to
convicts, under trials, detenus and other prisoners in custody except according to the
procedure established by law.
- Before the DK Basu case, the police could not be held liable for their misuse of powers
in custody. The victims of custodial violence even though they were awarded
compensation, there were no specific guidelines for that. In prominent cases like
Rudul Shah vs. State of Bihar (1983), the convicted man was illegally detained for
a time period more than his prescribed punishment.
- Another prominent case in this field is Nilabati Behera vs. State of Orissa (1993)
which deals with the custodial death of an individual alleged to have committed
offence of theft. The judgement given in this case is established as a precedent for
holding states liable in cases of custodial deaths. The Apex Court also awarded
compensation to the mother of the victim but did not give any proper guidelines.

Issues Involved:
i) Whether the custodial deaths are increasing?
ii) Whether the fundamental rights of the convicts are violated under Article 21?
iii) Whether there is any need for guidelines with respect to arrest and detention?

Arguments of the Petitioner:

- There was a need to have proper guidelines to stop the violence in custody as it
violated human rights. The prisoners even though arrested and are behind the bars
have the fundamental right to live.
- It was also argued that the state should perform its duty to protect the rights of all
individuals including those who are arrested and detained. If the state fails to perform
its duty, it should be made vicariously liable for the wrongful acts of the police
authorities.
- They highlighted the pathetic scenario of ill treatment that goes behind the bars.

Arguments of the Respondent:

- There is necessity to formulate custodial procedures.
- However, Imposing restrictions on the powers of the police authorities will cause
hindrance on their part to properly implement the laws. It was also claimed that the
conduct of the officers were presumed to be in accordance with the law until and
unless proven otherwise.
- The various challenges faced by the law enforcement authorities like inadequate
training, limited resources, pressure to solve a case within limited time were
highlighted.

The Decision of the Court:

The Supreme Court referred to the case of Nilabati Behera v. State of Orissa (1993)
and reiterated that prisoners and detainees should not be deprived of their fundamental
right under Article 21 and only the restriction permitted by law could be imposed on the
enjoyment of their fundamental rights.
In this case, the following guidelines were laid down by the Court:
The police personnel should bear accurate, visible and clear identification and
name tags with their designations. The particulars of all such police personnel who
handle interrogation of the arrestee must be recorded in a register.
An arrest memo shall be prepared by police officer making an arrest that shall be
attested by atleast one witness (a family member or respected person of the locality
where arrest is made). It shall also be counter signed by the arrestee and shall contain
the time and date of arrest.
The arrested person shall be entitled to have one friend, or relative or other person
known to him or having an interest in his welfare being informed about his detention
or arrest.
The time, place of arrest and venue of custody of an arrestee must be notified by the
police where the next friend or relative of the arrestee lives outside the district or
town, through the Legal Aid Organization in the District and the police station of the
area concerned telegraphically within a period of 8 to 12 hours after the arrest.
The person arrested must be made aware of this right to have someone informed
of his arrest or detention as soon as he is put under arrest or detained.
An entry must be made in the diary mentioning the name of the next friend who has
been informed about the arrest.
The arrestee should, where he so requests, also be examined at the time of his arrest
and an "Inspection Memo" shall be prepared and signed by both the arrestee and
the police officer effecting the arrest and its copy must be provided to the arrestee.
 The arrestee should be subjected to medical examination by a trained doctor every
48 hours during his detention in custody by a doctor on the panel of approved
doctors.
Copies of all the documents including the memo of arrest, as mentioned above, should
be sent to the ‘illaqa’ – Area Magistrate for his record.
The arrestee may be permitted to meet his lawyer during interrogation, though not
throughout the interrogation.
A Police Control Room should be provided at all district and state headquarters,
where information regarding the arrest and the place of custody of the arrestee shall
be communicated by the officer causing the arrest, within 12 hours of effecting the
arrest and at the police control room it should be displayed on a conspicuous notice
board.

Conclusion
The Court finally said the failure to comply with the above requirements would lead to
departmental actions upon the concerned officials as well as he/she would be liable to be
punished for Contempt of Court.
The guidelines given by the court of law in this case were later incorporated into the Code
of Criminal Procedure, 1973 through the Amendment Act of 2008, which came into effect
from the year 2010.

4. Aruna Shanbaug v. Union of India AIR 2011 SC 1290

Judges: Gyan Sudha Misra, Markandey Katju

Introduction: A writ petition under Article 32 of the Constitution was filed on behalf of the
petitioner Aruna Ramachandra Shanbaug by one Ms. Pinki Virani of Mumbai, claiming to
be a next friend, asking to permit Passive Euthanasia for Aruna.

The Facts of case:

1. The petitioner Aruna Ramachandra Shanbaug was a staff Nurse working in King
Edward Memorial Hospital, Parel, Mumbai.
2. On the evening of 27th November, 1973 she was attacked by a sweeper in the hospital
who wrapped a dog chain around her neck and yanked her back with it. He tried to
rape her but finding that she was menstruating, he sodomized her. To immobilize her
during this act he twisted the chain around her neck. The next day on 28th November,
1973 at 7.45 a.m. a cleaner found her lying on the floor with blood all over in an
unconscious condition.
3. It is alleged that due to strangulation by the dog chain the supply of oxygen to Aruna’s
brain stopped and the brain got severely damaged.
4. Though she survived, she never fully recovered from the trauma and brain damage
resulting from the assault and strangulation.
5. For the last 36 years, she has been in the same bed of a room at KEM Hospital under
the care of the Nurses.
6. After 36 years of the incident, Ms. Pinki Virani files a PIL asking that the respondents
be directed to stop feeding Aruna, and let her die peacefully. The reasons are as
follows:
 Ms. Aruna is in a persistent vegetative state (p.v.s.) and virtually a dead person
and has no state of awareness, and her brain is virtually dead. She can neither
see, nor hear anything nor can she express herself or communicate, in any manner
whatsoever.
 She is featherweight, and her brittle bones could break if her hand or leg are
awkwardly caught, even accidentally, under her lighter body. She has stopped
menstruating and her skin is now like papier mache' stretched over a skeleton.
 Aruna Ramachandra Shanbaug is Mashed food is put in her mouth, she is not able
to chew or taste any food. She is not even aware that food has been put in her
mouth. She is not able to swallow any liquid food, which shows that the food goes
down on its own and not because of any effort on her part. The digestion process
goes on in this way as the mashed food passes through her system.
 Her excreta and the urine is discharged on the bed itself. Once in a while she is
cleaned up but in a short while again she goes back into the same sub-human
condition.
  Judged by any parameter, Aruna cannot be said to be a living person and it is only
because of mashed food, which is put into her mouth that there is a facade of life,
which is totally devoid of any human element. It is alleged that there is not the
slightest possibility of any improvement in her condition and her body lies on the
bed in the KEM Hospital, Mumbai like a dead animal, and this has been the position
for the last 36 years.
7. The Supreme Court held it could have dismissed the petition on the short ground that
under Article 32 of the Constitution of India (unlike Article 226) the petitioner has to
prove violation of a fundamental right. It has been held by the Constitution Bench
decision of this Court in Gian Kaur vs. State of Punjab, 1996 (2) SCC 648 that the
right to life guaranteed by Article 21 of the Constitution does not include the right to
die.
8. A counter affidavit was earlier filed on behalf of the respondent nos.3 and 4, the
Mumbai Municipal Corporation and the Dean, KEM Hospital by Dr. Amar Ramaji
Pazare, Professor and Head in the said hospital, that Aruna accepts the food in normal
course and responds by facial expressions. She responds to commands intermittently
by making sounds. She makes sounds when she has to pass stool and urine, which
the nursing staff identifies and attends to by leading her to the toilet. Thus, there was
some variance between the allegations in the writ petition and the counter affidavit of
Dr. Pazare.
9. The Supreme Court observed that the hospital staff has provided her an excellent
nursing care since then which included feeding her by mouth, bathing her and taking
care of her toilet needs. The care was of such an exceptional nature that she has not
developed a single bed-sore or fracture in spite of her bed-ridden state since 1973.
10. The Supreme Court appointed a team of distinguished Doctor to examine Ms. Aruna.
The report states that -
 She was conscious, unable to co-operate and appeared to be unaware of her
surroundings.
 She has developed non-progressive but irreversible brain damage due to
strangulation.
 Brain death A state of prolonged irreversible cessation of all brain activity,
including lower brain stem function with the complete absence of voluntary
movements, responses to stimuli, brain stem reflexes, and spontaneous
respirations. Explanation: This is the most severe form of brain damage. The
patient is unconscious, completely unresponsive, has no reflex activity from
centres in the brain, and has no breathing efforts on his own. However the heart is
beating. This patient can only be maintained alive by advanced life support
(breathing machine or ventilator, drugs to maintain blood pressure, etc). These
patients can be legally declared dead (`brain dead') to allow their organs to be
taken for donation. Therefore, Aruna Shanbaug is clearly not brain dead.
 Coma Patients in coma have complete failure of the arousal system with no
spontaneous eye opening and are unable to be awakened by application of
vigorous sensory stimulation. Explanation: These patients are unconscious. They
cannot be awakened even by application of a painful stimulus. They have normal
heart beat and breathing, and do not require advanced life support to preserve life.
Therefore, Aruna Shanbaug is clearly not in Coma.
 Vegetative State (VS) The complete absence of behavioral evidence for self or
environmental awareness. There is preserved capacity for spontaneous or
stimulus-induced arousal, evidenced by sleep-wake cycles. .i.e. patients are
awake, but have no awareness. Explanation: Patients appear awake. They have
normal heart beat and breathing, and do not require advanced life support to
preserve life. They cannot produce a purposeful, co- ordinated, voluntary response
in a sustained manner, although they may have primitive reflexive responses to
light, sound, touch or pain. They cannot understand, communicate, speak, or have
emotions. They are unaware of self and environment and have no interaction with
others. They cannot voluntarily control passing of urine or stools. They sleep and
awaken. As the centres in the brain controlling the heart and breathing are intact,
there is no threat to life, and patients can survive for many years with expert
nursing care.
 From the above examination by the team of doctors, it cannot be said that Aruna
Shanbaug is dead. Whatever the condition of her cortex, her brain stem is certainly
 alive. She does not need a heart--lung machine. She breathes on her own without
the help of a respirator. She was making some sounds, blinking, eating food put in
her mouth, and even licking with her tongue morsels on her mouth.
 However, there appears little possibility of her coming out of PVS in which she is
in. In all probability, she will continue to be in the state in which she is in till her
death. The question now is whether her life support system (which is done by
feeding her) should be withdrawn, and at whose instance?

Issue of the case:

The following issues were raised by way of a writ petition, which was filed under Article
32 of the Constitution of India:
1. Whether it is ‘lawful’ and ‘permissible’ to withdraw life support from a person who is in
a permanent vegetative state?
2. Whether the living will of such a patient be respected in such cases?
3. Does the family or next of kin of the patient have the right to request the withdrawal of
life-supporting systems in case the patient cannot decide the same for himself?

Arguments of Petitioner
- The learned counsel for Petitioner Mr. Shekhar Naphade, highlighted the significance
of addressing the issue of the right to die with dignity, especially in cases where the
individuals are in permanent vegetative state. He argued that individuals should have
the right to end their lives with dignity to end their prolonged suffering in cases where
they are terminally ill and there is no scope for improvement.
- The counsel explained the situation by taking the example of the suffering and pain of
Ms. Aruna Shanbaug. He highlighted how she has been bedridden for over 35 years
and is devoid of the ability to eat, express herself and perform any human functions.
The doctors were confident that there was no scope for improvement in her health
conditions, and they had declared her virtually dead. Thus, by withdrawing life support
and life-sustaining treatment, the Respondents would not be killing her but would
rather be allowing her to die with dignity and respect.
Arguments of Respondent
- The learned counsel for KEM Hospital and the Municipal Corporation of Bombay filed
a counter-petition opposing the request for euthanasia for Ms. Aruna Shanbaug. They
put forth the following arguments to support their position against euthanasia.
- The counsel highlighted that the hospital's nursing staff had diligently fed and cared
for Ms. Aruna Shanbaug for over 35 years. Despite her condition, they have been
committed to providing her with the best care to ensure her well-being.
- Further, the counsel contended that Ms. Aruna Shanbaug was over 60 years of age,
and thus, there was a likelihood of her succumbing to death without any intervention.
- The counsel contended that permitting euthanasia would open the doors to misuse
and undermine the social values that Indian society places on caregiving.

Arguments of Amicus Curiae:

Mr. T. R. Andhyarujina, learned senior counsel whom we had appointed as Amicus
Curiae.
- Every human being of adult years and sound mind has a right to determine what shall
be done with his own body. In the case of medical treatment, for example, a surgeon
who performs an operation without the patient's consent commits assault or battery.
the patient possesses the right not to consent i.e. to refuse treatment. the principle of
self-determination applies when a patient of sound mind requires that life support
should be discontinued.
- The same principle applies where a patient's consent has been expressed at an earlier
date before he became unconscious or otherwise incapable of communicating it as by
a `living will' or by giving written authority to doctors in anticipation of his incompetent
situation. If the doctor acts on such consent there is no question of the patient
committing suicide or of the doctor having aided or abetted him in doing so. It is simply
that the patient, as he is entitled to do, declines to consent to treatment which might
or would have the effect of prolonging his life and the doctor has in accordance with
his duties complied with the patient's wishes.
- However, when the patient is in no condition to be able to say whether or not he
consents to discontinuance of the treatment and has also given no prior indication of
 his wishes with regard to it as in the case of Aruna. In such a situation the patient
being incompetent to express his self-determination the approach adopted in some of
the American cases is of "substituted judgment" or the judgment of a surrogate.

Euthanasia, means to give death to end the pain and suffering which an individual
undergoes.
Active euthanasia entails the use of lethal substances or forces to kill a person e.g.
a lethal injection given to a person with terminal cancer who is in terrible agony.
(involves Action)
Passive euthanasia entails withholding of medical treatment for continuance of life,
e.g. withholding of antibiotics where without giving it a patient is likely to die, or
removing the heart lung machine, from a patient in coma. (involves omission)
Voluntary euthanasia is where the consent is taken from the patient
non voluntary euthanasia is where the consent is unavailable e.g. when the patient
is in coma, or is otherwise unable to give consent.
Active euthanasia is a crime all over the world except where permitted by legislation.
In India active euthanasia is illegal and a crime under section 302 or at least section
304 IPC. Physician assisted suicide is a crime under section 306 IPC (abetment to
suicide).
The difference between Physician assisted suicide and euthanasia is that while in the
former the patient administers the lethal injection himself under guidance of a
Physician, in the latter a doctor or some other person administers it.

The Decision of the Court:

 The question is not whether it is in the best interests of the patient that he should die.
The question is whether it is in the best interests of the patient that his life should be
prolonged by the continuance of this form of medical treatment or care.
 The Constitution Bench of the Indian Supreme Court in Gian Kaur vs. State of Punjab,
1996(2) SCC 648 held that both euthanasia and assisted suicide are not lawful in
India. That decision overruled the earlier two Judge Bench decision of the Supreme
Court in P. Rathinam vs. Union of India, 1994 (3) SCC 394. The Court held that the
 right to life under Article 21 of the Constitution does not include the right to die. In Gian
Kaur's case, the Supreme Court observed that euthanasia could be made lawful only
by legislation.
 There is no statutory provision in our country as to the legal procedure for withdrawing
life support to a person in PVS or who is otherwise incompetent to take a decision in
this connection.
 The Court agreed with the Petitioner, that passive euthanasia must be permitted
under certain circumstances.
 The Court lays down the law in this connection which will continue to be the law until
Parliament makes a law on the subject.
1. A decision has to be taken to discontinue life support either by the parents or the
spouse or other close relatives, or in the absence of any of them, such a decision can
be taken even by a person or a body of persons acting as a next friend. It can also be
taken by the doctors attending the patient. However, the decision should be taken
bona fide in the best interest of the patient.
 We have no indication of Aruna Shanbaug's views or wishes with respect to life-
sustaining treatments for a permanent vegetative state.
 Any decision regarding her treatment will have to be taken by a surrogate
 The staff of the KEM hospital have looked after her for 37 years, after she was
abandoned by her family.
 Ms. Pinki Virani has written a book about Aruna Shanbaug ‘Aruna’s Story’ and has
visited her a few times, and we have great respect for her for the social causes
she has espoused, but she cannot claim to have the extent of attachment or
bonding with Aruna which the KEM hospital staff, which has been looking after her
for years, claims to have.
 We believe that the Dean of the KEM Hospital (representing the staff of the
hospital) is an appropriate surrogate.

2. If the doctors treating Aruna Shanbaug and the Dean of the KEM Hospital, together
acting in the best interest of the patient, feel that life sustaining treatments should
continue, their decision should be respected. If the doctors treating Aruna Shanbaug
 and the Dean of the KEM Hospital, together acting in the best interest of the
patient, feel that withholding or withdrawing life-sustaining treatments is the
appropriate course of action, they should be allowed to do so, and their actions should
not be considered unlawful.

3. However, assuming that the KEM hospital staff at some future time changes its mind,
in our opinion in such a situation the KEM hospital would have to apply to the Bombay
High Court for approval of the decision to withdraw life support. Hence, even if a
decision is taken by near relatives or doctors or next friend to withdraw life
support, such a decision requires approval from the High Court.

- The Court further observed that when an application is filed for passive euthanasia
before the concerned High Court, the Chief Justice of the High Court should constitute
a Bench of at least two judges who should decide based on the circumstances whether
to approve passive euthanasia or not.
- Before granting their approval, the Bench of the High Court has to seek the opinion of
a committee. This committee would consist of three expert and reputed doctors
nominated by the same Bench and would be responsible for providing their expert
medical opinion as it may deem fit.
- The High Court is also responsible for issuing notice to the State and the close
relatives of the patient, which includes parents, spouses, brothers/sisters, etc. In the
absence of these relatives, a copy of the doctor's report and such a notice has to be
issued to the next friend of the patient. The Supreme Court further clarified that the
same procedure has to be followed until the Parliament makes legislation in this
regard.
The Court denied euthanasia to Ms. Aruna Ramchandra Shanbaug as the matter
was not fit for allowing the withdrawal of life support. On 18th May 2015, Aruna died
at the age of 66 years, due to pneumonia.
 5. Joseph Shine v. Union of India AIR 2018 SC 4898

Judges: Chief Justice Dipak Misra, Rohinton Fali Nariman, A.M. Khanwilkar, D.Y.
Chandrachud, Indu Malhotra

Introduction: the complainant, Joseph Shine, is a hotelier of Indian origin and a non-
resident of Kerala residing in Italy. In Kerala, a close friend of the petitioner committed
suicide after a female co-worker falsely/ maliciously accused him of rape.
This is said to have triggered the petitioner to file a writ petition under Article 32
challenging the constitutionality of section 497 of the Indian Penal Code which dealt with
the criminal offence of adultery and Section 198(2), Code of Criminal Procedure 1973
(CrPC) which provided that no person other than the husband of a person accused of
adultery would be deemed to be aggrieved by the commission of an offence under Section
497 or Section 498 of the IPC.
These sections are in infringement of the rights given to all Indian Citizens under Articles
14, 15, and 21 of the Constitution. He argued that since we believe in Equality under
Article 14 of the Indian Constitution, such sections are violative of equality, a dangerous
weapon, and are gender biased.

Section 497: Adultery

Whoever has sexual intercourse with a person who is and whom he knows or has reason
to believe to be the wife of another man, without the consent or connivance of that man,
such sexual intercourse not amounting to the offence of rape, is guilty of the offence of
adultery, and shall be punished with imprisonment of either description for a term which
may extend to five years, or with fine, or with both. In such case the wife shall not be
punishable as an abettor.

Section 198(2), Code of Criminal Procedure 1973 (CrPC) which provided that no person
other than the husband of a person accused of adultery would be deemed to be aggrieved
by the commission of an offence under Section 497 or Section 498 of the IPC.

Section 498 Enticing or taking away or detaining with criminal intent a married woman.
Whoever takes or entices away any woman who is and whom he knows or has reason to
believe to be the wife of any other man, from that man, or from any person having the
care of her on behalf of that man, with intent that she may have illicit intercourse with any
person, or conceals or detains with that intent any such woman, shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine,
or with both.

Issues raised:
 Whether the provision for adultery is arbitrary and discriminatory under Article 14?
 Whether Section 497 of the IPC is constitutionally valid or unconstitutional?
 Whether the provision for adultery encourages the stereotype of women being the
property of men and discriminates on a gender basis under Article 15 as if the husband
has consented to such an act, then such an act will no longer be considered an
offence?
 Whether the dignity of a woman is compromised by the denial of her sexual autonomy
and right to self-determination?
 Whether criminalizing adultery is intrusion by law in the private realm of an individual?
 Whether adultery laws should be made gender-neutral? Should the woman of the
offender/ adulterer be given a right to file a complaint for the act committed by her
husband against the sanctity of their marriage?

Arguments by Petitioner:
1. The Counsel for the Petitioner discussed several aspects of Section 497 that tended
to violate fundamental rights and stated that the law was enacted during the British
era and has no relevance whatsoever in modern times.
2. The counsel also asserted that Section 497 and Section 198(2) of the CrPC were
against Article 14 of the Constitution, which talked about equality before the law.
3. The counsel for the petitioner contended that the provision criminalizes adultery based
on classification based on gender alone, which has no rational nexus to object to being
achieved. The consent of the wife is immaterial; thus it violates Article 14 of the
Constitution.
4. The Petitioner argued that the provisions were violative of fundamental rights granted
under Articles 14, 15 and 21 of the Constitution, due to their paternalistic and arbitrary
nature. It was submitted that since sexual intercourse was a reciprocal and
consensual act for both the parties, neither should be excluded from liability.
5. The Petitioner further contended that Section 497 of the IPC was violative of the
fundamental right to privacy under Article 21, since the choice of an intimate partner
fell squarely within the area of autonomy over a person’s sexuality. It was submitted
that each individual had an unfettered right (whether married or not; whether man or
woman) to engage in sexual intercourse outside his or her marital relationship.
6. It was argued that the law provided for a man’s punishment in case of adultery,
whereas no action against a woman was provided for. Under the Section, a woman
was not permitted to file a complaint against her husband for adultery due to the lack
of any legal provision to such effect.
7. Further, he argued that women were treated like objects under this law as the act was
‘criminal’ depending on the husband’s consent or lack thereof.

Arguments for Respondent:

1. The counsel for the respondents contended that adultery is an offence and having
sexual relations outside marriage breaks family relations and deterrence should be
there to protect the sanctity institution of marriage.
2. The respondents claim that adultery affects the spouse, children and the morality of
the society as a whole. The counsel also stated that adultery as a crime is morally
outrageous to society and all the perpetrators committing such a crime must be liable
for a penalty. It is an offence committed by an outsider with full knowledge that
destroys the sanctity of marriage and family.
3. The discrimination by the provision is saved by Article 15(3), which provides the
state the right to make special laws for women and children.
4. The counsel for the respondent stated that such an act would outrage the morality
of society and also cause harm to its members; thus, it should be punished and
considered an offence.
5. Also, the counsel contended that the Right to Privacy and Personal Liberty under
Article 21 of the Constitution of India was not an absolute right and that there were
reasonable restrictions when public interest was at stake. The Right to Privacy
provision does not provide protection of privacy to an individual who is engaging in
sexual intercourse with another married person outside the purview of his/her
marriage.
6. The counsel further argued that Section 497 was valid as a form of affirmative action
that favoured women.
7. Section 497 is actually acting as a protector for society from such an immoral activity
that will outrage the institution of marriage; hence, it should not be struck down.
8. The counsel for the respondent requested that the court delete the portion found
unconstitutional but retain the provision.

Decision/ Ratio Decidendi:

 The Hon’ble Supreme Court, in this landmark judgement, struck down Section 497 of
the Indian Penal Code, held that this Section is violative of Articles 14, 15 and 21 of
the Indian Constitution and declared that it is unconstitutional.
 The Court further stated that Section 198(2) of the CrPC is also unconstitutional when
it comes to reading with Section 497 of the IPC.
 The court said that any wrong like criminal sanctions should be a public wrong but
when it comes to cases of adultery, it is a private wrong.
 The right to dignity says that a person should be penalised only when it is necessary
to do so and proper analysis and inquiry should be carried out before deciding to
punish them. Further, no one should treat a woman as a chattel or some property.
 Thus, the Hon’ble Supreme Court, in its judgement, rightly pointed out that such a law
is highly discriminatory and does not go hand in hand with modern times and thus,
declared it to be unconstitutional.
 After this landmark judgement, adultery is now only used as one of the grounds for
seeking divorce and a person engaging in sexual activity with a person other than
his/her spouse will not be punished.
Section 497 IPC is unconstitutional and adultery should not be treated as an offence, it is
appropriate to declare Section 198 CrPC, which deals with the procedure for filing a
complaint in relation to the offence of adultery as unconstitutional. When the substantive
provision goes, the procedural provision has to pave the same path.

In Voluntary Health Association of Punjab v. Union of India, Dipak Misra, J. in his

concurring opinion, stated that women have to be regarded as equal partners in the lives
of men, and it has to be borne in mind that they have equal role in the society, that is, in
thinking, participating and leadership. Section 497 is arbitrary- In the whole of the
judgment it was pointed out that nature section 497 is arbitrary. As husband can give his
consent to allow his wife to have an affair with some other person. Hence, this section
does not protect the ‘sanctity of marriage’.

Justice D.Y. Chandrachud highlighted the ways in which adultery impacted the right to
privacy by drawing attention to the jurisprudence of the US Supreme Court. He stressed
that misogyny and patriarchal beliefs about the sexual control of a woman found no place
in our constitutional order, which respects dignity and autonomy as inherent to an
individual.

Referring to the case of Navtej Singh Johar v. Union of India, he discussed the
significance of sexual autonomy as an aspect of individual liberty, to highlight the indignity
suffered by an individual when “acts within their personal sphere” were criminalized on
the basis of regressive social attitudes, and to emphasize that, the right to sexual privacy
was a natural right, which was crucial to liberty and dignity.

Since Joseph Shine v. Union of India was brought before the Indian Supreme Court as
a Public Interest Litigation (PIL), there were no rulings from subordinate courts in this
case. The court’s ruling marked a fundamental shift in Indian jurisprudence with regard to
equality and personal autonomy in marriage.
 6. Indian Young Lawyers Association v. State of Kerala AIR 2018 SC 1690

Judges: Chief Justice Dipak Misra, Rohinton Fali Nariman, A.M. Khanwilkar, D.Y.
Chandrachud, Indu Malhotra

Introduction:
A PIL was filed to determine the constitutionality of Rule 3(b) of the Kerala Hindu Places
of Worship (Authorisation of Entry) Act, 1965 (KHPW Act), which prohibited women of
menstruating age, i.e. between 10-50 years, from entering the Sabarimala Temple
devoted to Lord Ayyappan and to issue directions to the temple authorities and local
government representatives facilitating such entry.

Facts:
- This case was referred from a three Judge Bench of the Supreme Court, in the case
of Indian Young Lawyers Association and Ors. vs. State of Kerala and Ors. ((2017) 10
SCC 689). The case was centered around the Sabarimala shrine, which is a Hindu
temple dedicated to God Ayyappan, in Kerala. As per tradition, women of
menstruating age, i.e. between 10-50 years, were not allowed to enter the temple as
the temple was dedicated to a celibate God, and there was a belief that women of
menstruating age would cause an affront to the value of celibacy in the Temple.
- This exclusion was justified on the basis of ancient custom, which was legitimised by
Rule 3(b), framed under the KHPW Act. Rule 3(b) provided for the exclusion of
“women at such time during which they are not by custom and usage allowed to
enter a place of public worship.”
- The Kerala High Court, in the case of S. Mahendran vs. The Secretary, Travancore
Devaswom Board, Thiruvananthapuram and Ors (AIR 1993 Ker. 42) had held that
such a restriction was not violative of the fundamental rights of women under the
Constitution.
- The matter was finally placed before a Constitution Bench of the Supreme Court.
Issues:
1. Whether an exclusionary practice which was based upon a biological factor exclusive
to the female gender amounted to "discrimination" and thereby violated Articles 14,
15 and 17 without being protected by “morality” as used in Articles 25 and 26 of the
Constitution?
2. Whether the practice of excluding such women constituted an "essential religious
practice" under Article 25?
3. Whether Ayyappa Temple had a denominational character?
4. Whether Rule 3 of the Kerala Hindu Places of Worship (Authorisation of Entry) rules
permits ‘Religious denomination’ to ban entry of women between the age of 10 to 50
years?

A religious denomination is a sub-group within a larger religious organisation that

follows a common faith, practice, has an identity and traditions. A religious sect or
body having common faith and organisation and designated by a distinctive name.
Article 26. Freedom to manage religious affairs
Subject to public order, morality and health, every religious denomination or any
section thereof shall have the right—
a) to establish and maintain institutions for religious and charitable purposes;
b) to manage its own affairs in matters of religion;
c) to own and acquire movable and immovable property; and
d) to administer such property in accordance with law.
Essential Religious Practice are the customs and rituals important or necessary for a
particular religion, which must be adhered to by people of that religion. Test is to
determine whether absence of such practice would harm or alter the religion.

Arguments of the Petitioner:

 The discrimination perpetrated against women of a menstruating age was arbitrary
under Article 14 as there was no constitutional basis for making a separate, excluded
class of women between the ages of 10-50 years.
 The Lord Ayyappa temple and its devotees did not constitute a separate religious
denomination for the purposes of Article 26.
 Compulsory disclosure of menstrual status was a violation of women’s right to privacy.
They relied on the judgment in K.S. Puttaswamy and Anr. vs. Union of India ((2017)
10 SCC 1) to argue that denial of entry to menstruating women was exclusionary and
adversely impacted their dignity.

Arguments by the Respondent:

 The Respondents argued that Rule 3(b) was not unconstitutional, as it did not deny
entry to all women as a class, but merely to women of a specific age group, for a
specific objective.
 Amicus Curiae, Mr. K. Ramamoorthy also argued that the devotees of Lord Ayyappa
could be considered a religious sect and therefore were not subject to the reform
provisions of Article 25, but could manage their own affairs under Article 26.

Decision of the Court:

 The Supreme Court declared unconstitutional the Sabarimala Temple's custom of
prohibiting women in their 'menstruating years' from entering. The majority ruled that
Sabarimala’s exclusion of women violated the fundamental rights of women between
the ages of 10 to 50 years.
 They further held that the devotees of Lord Ayyappa were not a separate religious
denomination.
 Justices Misra, Khanwilkar and Chandrachud held that the custom was not an
essential religious practice. While the Judges in the majority did not explicitly comment
on whether the custom was against the right to equality under article 14, they stated
that the practice was discriminatory as per Article 15.
 The majority held that the devotees of the Lord Ayyappa did not constitute a separate
religious denomination but were part of the Hindu fold, and that in the absence of any
scriptural or textual evidence justifying the same, exclusion of women could not be
considered to be an essential religious practice.
 The opinion also observed that Rule 3(b) was ultra vires the aim of the KHPW Act,
which was to reform and open public Hindu places to all people. The Court further
declared that Rule 3(b) of the KHPW Rules was unconstitutional for being violative of
Part III of the Constitution of India.
 Justice Chandrachud stated that the right against untouchability is vast, and includes
any kind of social exclusion based on notions of ‘purity’.
 Further, Rule 3(b) of the Kerala Hindu Places of Worship (Authorisation of Entry) Act,
1965 (KHPW Act) which allowed the custom of prohibition of women was held to be
unconstitutional. The majority decision of the Court struck down the impugned Rule
3(b) as it prevented women from exercising their right to religious freedom under
Article 25(1), and did not warrant any exemption as an essential religious practice of
a separate religious denomination.
 The Court further passed directions to ensure the safety of women pilgrims entering
the shrine.

In her dissenting decision, Justice Indu Malhotra held that the case should fail for lack of
standing by the Petitioners. She also held that Ayyappans or worshippers at the
Sabarimala Temple satisfied the requirements of being a religious denomination, and
therefore could avail the protections of Article 26. She observed that in a secular polity,
‘It is not for the courts to determine which of these practises of a faith are to be struck
down, except if they are pernicious, oppressive, or a social evil, like Sati.’