INDEX

1. Justice K.S.Puttaswamy(Retd) vs Union Of India

2. Amardeep Singh VS harveen Kaur
3. Vineeta Sharma vs Rakesh Sharma
4. Subramanian Swamy vs. Union of India
5. LalitaKumari vs Govt.Of U.P
Introduction
Judicial decision
A judicial decision is a form of legal opinion written by a judge or a judicial panel in the course of
resolving a legal dispute, providing the decision reached to resolve the dispute, and usually
indicating the facts which led to the dispute and an analysis of the law used to arrive at the
decision.

Importance of Judicial decision

In most of the developed legal systems, judiciary is considered to be an important organ of the
State. In modern societies, rights are generally conferred on the citizens by legislation and the
main function of the judiciary is to adjudicate upon these rights. The judges decide those matters
on the basis of the legislations and prevailing custom but while doing so, they also play a creative
role by interpreting the law. By this exercise, they lay down new principles and rules which are
generally binding on lower courts within a legal system.

Judicial decisions can be divided into following two parts:

1)decidendi (Reason of Decision):'

Ratio decidendi' refers to the binding part of a judgment. 'Ratio decidendi' literally means reasons for
the decision. It is considered as the general principle which is deduced by the courts from the facts
of a particular case. It becomes generally binding on the lower courts in future cases involving
similar questions of law.

2) Obiter dicta (Said by the way):

An 'obiter dictum' refers to parts of judicial decisions which are general observations of the
judge and do not have any binding authority. However, obiter of a higher judiciary is given
due consideration by lower courts and has persuasive value

OBJECTIVES

The project work aims to enable us to :

● design a strategy to identify , formulate, deconstruct a legal problem and its remedy

1
● select relevant legal sources and conduct searches
● analogize, distinguish and synthesize cases
● apply case and statutory law in an analytical framework utilizing the principles of analogies,
distinctions, to write an objective legal memorandum
● acquire legal writing skills
● gain basic legal writing skills, including style, usage and attribution
● understand parts of a judicial decision, ie, ratio decidendi and obiter dicta
BIBLIOGRAPHY
To include all the links mentioned in credits page of each case
(to added in the end )

Name of the case and its nature

Name :Justice K.S.Puttaswamy(Retd) vs Union Of India

Nature:constitutional

Justice K.S.Puttaswamy(Retd) vs Union Of India qualifies as a constitutional case as it deals with

the issue that whether right to privacy is guaranteed to the citizens of the county under article 21 as
enshrined in the constitution of India . Furthermore it also deals with the Aadhar card scheme 2011
and how it goes against article 14 ie the right to equality that is fundamentally guaranteed to every
citizen and cannot be taken away by the state.

Citation
Writ Petition (Civil) No. 494 of 2012, (2017) 10 SCC 1

Name of the judges

CJI J.S KHEHAR

JUSTICE JASTI CHELAMESWAR
JUSTICE D. Y CHANDRACHUD
JUSTICE ROHINTON NARIMAN
JUSTICE R. K AGARWAL
JUSTICE SANJAY KISHAN KAUL
JUSTICE A NAZEER
JUSTICE S.A BOBDE
JUSTICE A. M SAPRE

2
 (not to be written in capital.)

Parties to the Case

Appellant: Justice K .S Puttaswamy (Retired)
Respondent: Union of India and Others

Facts of the case

1. The case was brought by 91-year old retired High Court Judge Puttaswamy against the Union of
India (the Government of India) before a nine-judge bench of the Supreme Court which had been set
up on reference from the Constitution Bench to determine whether the right to privacy was
guaranteed as an independent fundamental right following conflicting decisions from other Supreme
Court benches.

2. The latest case had concerned a challenge to the government‘s Aadhaar scheme (a form of uniform
biometrics-based identity card) which the government proposed making mandatory for access to
government services and benefits. The challenge was made before a three-judge bench of the
Supreme Court on the basis that the scheme violated the right to privacy

3. However, the Attorney General argued on behalf of the Union of India that the Indian Constitution
does not grant specific protection for the right to privacy. He based this on observations made in the
case of M.P. Sharma v. Satish Chandra (an eight-judge bench) and Kharak Singh v. Uttar
Pradesh (a five-judge bench).

4. However, a subsequent eleven-judge bench found that fundamental rights were not to be construed
as distinct, unrelated rights, thereby upholding the dissenting view in Kharak Singh. This also formed
the basis of later decisions by smaller benches of the Supreme Court which expressly recognized
the right to privacy

3
 5. It was in this context that a Constitution Bench was set up and concluded that there was a need for a
nine-judge bench to determine whether there was a fundamental right to privacy within the
Constitution.

6. The Petitioner argued before the nine-judge bench that this right was an independent right, guaranteed
by the right to life with dignity under Article 21 of the Constitution. The Respondent submitted that the
Constitution only recognized personal liberties which may incorporate the right to privacy to a limited
extent. The Court considered detailed arguments on the nature of fundamental rights, constitutional
interpretation and the theoretical and philosophical bases for the right to privacy as well as the nature of
this right.

Issues involved
1. Whether the right to privacy is an intrinsic part of the right to life and personal liberty under
Article 21 and a part of the freedoms guaranteed by Part III of the Constitution.
2 whether the aadhar card scheme of 2011 . infringes upon fundamental rights guaranteed by
the Constitution .
3) Whether or not the decision made by the Court that there are no such fundamental rights in
M.P. Sharma & Ors. ,in Kharak Singh vs. The State of U.P, is that the correct expression of the
constitutional position?

Journey of the case (Through the hierarchy of courts)

The case was directly introduced in the Supreme Court under original jurisdiction

Points of law involved in the case, i.e. the legislations, articles, sections, etc
Aadhaar Card scheme - In 2011, The Government progressively made the Aadhaar Card
mandatory for numerous welfare schemes. These include subsidised food under the Public
Distribution System and the Mid-Day Meal Scheme and guaranteed wage labour under the
Mahatma Gandhi National Rural Employment Guarantee Scheme.

Article 21 of the Constitution

“No person shall be deprived of his life or personal liberty except according to procedure
established by law” and right to privacy is an intrinsic part of the right to life and personal liberty
under Article 21
Article 14.
Equality before law The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India Prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth
Article 19
Protection of certain rights regarding freedom of speech etc
(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;

4
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practise any profession, or to carry on any occupation, trade or business

Arguments presented by the parties

Petitioner’sArgument:
1.
• It was argued from the side of the petitioner before the court is that the right to privacy is an
intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms
guaranteed by Part III of the Constitution and same is to be protected by the constitution of India.

2. The Aadhaar scheme has been challenged before the Supreme Court by Justice K.S.
Puttaswamy, a retired judge of the Karnataka High Court. He claims that Aadhaar infringes
upon fundamental rights guaranteed by the Constitution.

3. Broadly, his objections include:

o The government has not put in place adequate privacy safeguards. Any private entity may
request authentication by Aadhaar for any reason subject to regulations by the UIDAI. There
are no checks on the power of the government to use the biometric data collected.

o Entitlements granted to the individuals by the State's social sector schemes are themselves a
fundamental right. They cannot be limited for any reason, including the failure to produce an
Aadhaar Card/Number when applying for benefits.

4. It was also put forward to evaluate the correctness of the decision noted in Karak Singh vs. The
state of Uttar Pradesh and M. P. Sharma vs. Satish Chandra on the ground that it violates the
Right to Privacy under Article 21 of the constitution.

Respondent’sArgument:
1.
• It was argued from the side of the defendant that the constitution of India does not
specifically protect the Right to privacy and on this ground that the right of privacy was not
guaranteed under the Constitution,

2. And hence Article 21 of the Indian Constitution (the right to life and personal liberty) had no
application in the case of both M. P. Sharma vs Satish Chandra and Karak Singh vs. State of
UP.

Arguments put forward by the judges

1. J. Chandrachud (on behalf of himself, C.J. Kehar, J. Agrawal and J. Nazeer): this opinion
stated that privacy was not surrendered entirely when an individual is in the public sphere.
Further, it found that the right to privacy included the negative right against State interference, as
in the case of criminalization of homosexuality, as well as the positive right to be protected by the
State. On this basis, the Judges held that there was a need to introduce a data protection regime
in India.

5
 2. J. Chelameswar: in his opinion, the Judge said that the right to privacy implied a right to refuse
medical treatment, a right against forced feeding, the right to consume beef and the right to
display symbols of religion in one‘s personal appearance etc.

3. J. Bobde: the Judge observed that consent was essential for distribution of inherently personal
data such as health records
.
4. J. Nariman: in this concurring opinion, the Judge classified the facets of privacy into non-
interference with the individual body, protection of personal information and autonomy over
personal choices.

5. J. Sapre: the Judge said that, in addition to its existence as an independent right, the right to
privacy included an individual‘s rights to freedom of expression and movement and was essential
to satisfy the constitutional aims of liberty and fraternity which ensured the dignity of the
individual.

6. J. Kaul: the Judge discussed the right to privacy with respect to protection of informational
privacy and the right to preserve personal reputation. He said that the law must provide for data
protection and regulate national security exceptions that allow for interception of data by the
State.

Final judgment including the ratio decidendi and obiter dicta

Final judgement
1. A nine-judge bench of the Supreme Court of India unanimously passed a landmark
judgment on 24th August 2017, upholding the fundamental right to privacy under Article 21 of
the constitution of India
2. It explicitly overrules previous judgements of the Supreme Court in Kharak Singh vs State of
UP and M.P Sharma vs Union of India, which had held that there is no fundamental right to
privacy under the Indian Constitution

Ratio decidendi
1. It is stated in the judgment that the privacy is to be an integral component of Part III of the
Indian Constitution, which lays down the fundamental rights of the citizens. The Supreme Court
also stated that the state must carefully balance the individual privacy and the legitimate aim, at
any cost as fundamental rights cannot be given or taken away by law, and all laws and acts
must abide by the constitution.
2. The Court also recognized that the right was not absolute but allowed for restriction where
this was provided by law, corresponded to a legitimate aim of the State and was proportionate
to the objective it sought to achieve. any invasion of privacy by state or non-state actor must
satisfy the triple test i.e.
 legality, which postulates the existence of law
 need, defined in terms of a legitimate state aim
 proportionality, which ensures a rational nexus between the objects and the means adopted to
achieve them

6
 3.Aadhaar is not mandatory to be linked with bank accounts now but is compulsory to be linked
with PAN for filing of Income Tax Return
The bench in present case upholds S. 7 of Aadhaar Act[32] which deals with grant of subsidies,
welfare benefits and struck down S. 57[33] which states that private entities can entail Aadhaar
thus, now no private company can ask for Aadhaar.

obiter dicta
In this case, the supreme court observed that Article 21 , which deals with right to life and personal liberty
and within this Article there are several inferred rights ,which are those rights which are not explicitly
mentioned under Article 21 or any other part of the constitution of India .It is by the judicial interpretation
of this Article that is also includes right to privacy .

Impact of the case

1.This landmark judgement fundamentally changed the way in which the government viewed its citizens‘
privacy, both in practice and prescription.
2.It requires governments to undertake structural reforms and bring transparency and openness in the
process of commissioning and executing its surveillance projects, and build a mechanism of judicial
oversight over surveillance requests.
3.It demands from the authorities to demonstrate great care and sensitivity in dealing with personal
information of its citizens. It requires to legislate a transformative, rights-oriented data
4.protection law that holds all powerful entities that deal with citizens‘ personal data (data controllers),
including the state, accountable.
5.The case expands freedom of expression by recognizing privacy as an independently enforceable
right, as opposed to a right that is available only as far as it impacts constitutionally guaranteed
freedoms. This provides for protection of freedom of expression by recognizing rights such as the right
against arbitrary, unregulated State surveillance, the right to express one‘s sexual orientation, religious
expression and data protection
6.It is also of wider significance because, by putting the right to privacy at the heart of constitutional debate
in the world‘s largest democracy, it is likely to provide assistance and inspiration for privacy campaigners
around the world.

legal provisions of the case.

Right to Privacy - A Fundamental Right

The Supreme Court confirmed that the right to privacy is a fundamental right that does not need to
be separately articulated but can be derived from Articles 14, 19 and 21 of the Constitution of India.
It is a natural right that subsists as an integral part to the right to life and liberty. It is a fundamental
and inalienable right and attaches to the person covering all information about that person and the
choices that he/ she makes. It protects an individual from the scrutiny of the State in their home, of
their movements and over their reproductive choices, choice of partners, food habits, etc.
Therefore, any action by the State that results in an infringement of the right to privacy is subject to
judicial review.

Aadhaar Card scheme - In 2011, The Government progressively made the Aadhaar Card mandatory
for numerous welfare schemes. These include subsidised food under the Public Distribution System and

7
the Mid-Day Meal Scheme and guaranteed wage labour under the Mahatma Gandhi National Rural
Employment Guarantee Scheme.

Article 21 - No person shall be deprived of his life or personal liberty except according to
procedure established by law”
Rest to be copied from image below ( article 21 only NOT article 21A as a paragraph , the word

observation and conclusion to not be copied )

Article 14

to be copied from image below, the word observation and conclusion to not be copied

8
Article 19 to be copied from image below,the word observation and conclusion to not be copied
Credits
https://lawlex.org/lex-bulletin/case-summary-k-s-puttaswamy-retd-v-s-union-of-india-2017/18929
https://www.scobserver.in/court-case/fundamental-right-to-privacy
https://globalfreedomofexpression.columbia.edu/cases/puttaswamy-v-india/
https://indiankanoon.org/doc/127517806/
https://translaw.clpr.org.in/case-law/justice-k-s-puttaswamy-anr-vs-union-of-india-ors-privacy/

9
Name of the case and its nature
Name :Amardeep Singh VS harveen Kaur
Nature : Civil

Amardeep Singh VS harveen Kaur is a civil case as it deals with divorce by mutual consent as
provided under Hindu marriage act of 1955, it deals with family matters and does not take way any
rights of the individuals.

Citation
CIVIL APPEAL NO. 11158 OF 2017
(Arising out of Special Leave Petition (Civil)No. 20184 of 2017)

10
Name of the judges
Justice Adarsh Kumar Goel
Justice UdayUmeshLalit

Parties to the Case

Appellant :Amardeep Singh

Respondent :Harveen Kaur

. Facts of the case

1. Factual matrix giving rise to this appeal is that marriage between the parties took place on
16 th January, 1994 at Delhi.
2. Two children were born in 1995 and 2003 respectively. Since 2008 the parties are living
separately.
3. Disputes between the parties gave rise to civil and criminal proceedings. Finally, on 28 th
April, 2017 a settlement was arrived at to resolve all the disputes and seeks divorce by
mutual consent.
4. The respondent wife is to be given permanent alimony of Rs.2.75 crores. Accordingly, HMA No.
1059 of 2017 was filed before the Family Court (West), Tis Hazari Court, New Delhi and on 8 th
May, 2017 statements of the parties were recorded.
5. The appellant husband has also handed over two cheques of Rs.50,00,000/-, which have
been duly honoured, towards part payment of permanent alimony.Custody of the children is
to be with the appellant.
6. They have sought waiver of the period of six months for the second motion on the ground
that they have been living separately for the last more than eight years and there is no
possibility of their re union.
7. Any delay will affect the chances of their resettlement. The parties have moved this Court on
the ground that only this Court can relax the six months period as per decisions of this
Court.
8. Reliance has been placed inter alia on decision of this Court in Nikhil Kumar vs. Rupali
Kumar 1 wherein the statutory period of six months was waived by this Court under Article
142 of the Constitution and the marriage was dissolved.
9.

Issue involved
The question which arises for consideration in this appeal is whether the minimum period of six
months stipulated under Section 13B(2) of the Hindu Marriage Act, 1955 (the Act) for a motion for
passing decree of divorce on the basis of mutual consent is mandatory ;or can be relaxed in any
exceptional situations.
Journey of the case (Through the hierarchy of courts)
The case was filed before the Family Court (West), Tis Hazari Court, New Delhi and on 8 th May,
2017 statements of the parties were recorded. Then, it moved to the Supreme Court under civil
appellate jurisdiction of the Supreme court

Points of law involved in the case, i.e. the legislations, articles, sections, etc
Section 13B inThe Hindu Marriage Act, 1955

11
13-B. Divorce by mutual consent.— (1) Subject to the provisions of this Act a petition for dissolution
of marriage by a decree of divorce may be presented to the district court by both the parties to a
marriage together, whether such marriage was solemnized before or after the commencement of
the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for
a period of one year or more, that they have not been able to live together and that they have
mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the
presentation of the petition referred to in sub-section (1) and not later than eighteen months after
the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied,
after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been
solemnized and that the averments in the petition are true, pass a decree of divorce declaring the
marriage to be dissolved with effect from the date of the decree.‖

ARTICLE 142

Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc

Section 9 in The Family Courts Act, 1984

Duty of Family Court to make efforts for settlement.In every suit or proceeding, endeavour shall be
made by the Family Court in the first instance, where it is possible to do so consistent with the
nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement
in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may,
subject to any rules made by the High Court, follow such procedure as it may deem fit.

Arguments presented by the parties

Agreements of the appellant to be copied from the img below

Respondent argument

1. Generally, no court has competence to issue a direction contrary to law nor can the court
direct an authority to act in contravention of the statutory provisions.
2. The courts are meant to enforce the rule of law and not to pass the orders or directions
which are contrary to what has been injected by law.

12
Final judgment including the ratio decidendi and obiter dicta
Ratio decidendi

1.Applying the above to the present situation, we are of the view that where the Court dealing with
a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2), it
can do so after considering the following :

i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period
of one year under Section 13B(1) of separation of parties is already over before the first motion
itself;
ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3
CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed
and there is no likelihood of success in that direction by any further efforts;
iii) the parties have genuinely settled their differences including alimony, custody of child or any
other pending issues between the parties;
iv) the waiting period will only prolong their agony.

2.The waiver application can be filed one week after the first motion giving reasons for the prayer
for waiver.

3. If the above conditions are satisfied, the waiver of the waiting period for the second motion will
be in the discretion of the concerned Court

obiter dicta

1.Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but
directory, it will be open to the Court to exercise its discretion in the facts and circumstances of
each case where there is no possibility of parties resuming cohabitation and there are chances of
alternative rehabilitation.

2. Article 142 of the Constitution cannot be exercised contrary to the statutory provisions,
especially when no proceedings are pending before this Court and this Court is approached only
for the purpose of waiver of the statute

3.Needless to say that in conducting such proceedings the Court can also use the medium of video
conferencing and also permit genuine representation of the parties through close relations such as
parents or siblings where the parties are unable to appear in person for any just and valid reason
as may satisfy the Court, to advance the interest of justice.

Impact of the case

1.Notably, since this ruling, there have been a few cases wherein the couple filing for divorce
achieved the same without any ―cooling-off period.‖ This shows the Apex court is willing to stand by
this precedent set out by Amardeep Singh v. Harveen Kaur.
2.There have been a few more such cases in 2020 as well, proving that the once rare and remote,
possibility for a ―speedy divorce‖ has become increasingly real, given that the necessary
prerequisites are met. This has definitely been a step in a more progressive direction and aims to
not purposelessly prolong marriages where there is no hope for reconciliation.
3.The benefits of a divorce in a situation wherein neither spouse is content or either one spouse is
suffering in any way, shape, or form cannot be overstated. The aforementioned statute was the first

13
recourse provided to people who found themselves in non-productive and insufferable
relationships. Supreme Court has ordinary powers to deliver complete and holistic justice, the
debate whether 13B (2) is a mandatory or merely procedural raged on, until this landmark
judgment
legal provisions of the case.
Section 13B(2) in The Hindu Marriage Act, 1955
13-B. Divorce by mutual consent.— On the motion of both the parties made not earlier than six
months after the date of the presentation of the petition referred to in sub-section (1) and not later
than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court
shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that
a marriage has been solemnised and that the averments in the petition are true, pass a decree of
divorce declaring the marriage to be dissolved with effect from the date of the decree.

(i) The period of 6 to 18 months provided in section 13B is a period of interregnum which is
intended to give time and opportunity to the parties to reflect on their move. In this transitional
period the parties or either of them may have second thoughts

ii)The period of living separately for one year must be immediately preceding the presentation of
petition. The expression ‘ living separately' connotes not living like husband and wife. It has no
reference to the place of living. The parties may live under the same roof and yet they may not be
living as husband and wife. The parties should have no desire to perform marital obligations;
iii)The period of six to eighteen months time is given in divorce by mutual consent as to give time
and opportunity to the parties to reflect on their move and seek advice from relations and friends.
Mutual consent should continue till the divorce decree is passed. The court should be satisfied
about the bona fides and consent of the parties. If there is no consent at the time of enquiry the
court gets no jurisdiction to make a decree for divorce. If the court is held to have the power to
make a decree solely based on the initial petition, it negates the whole idea of mutuality. There can
be unilateral withdrawal of consent.
Section 9 in The Family Courts Act, 1984
in every suit or proceeding, endeavour shall be made by the Family Court in the first instance,
where it is possible to do so consistent with the nature and circumstances of the case, to assist and
persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or
proceeding and for this purpose a Family Court may, subject to any rules made by the High Court,
follow such procedure as it may deem fit."

(2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a
reasonable possibility of a settlement between the parties, the Family Court may adjourn the
proceedings for such period as it think fit to enable attempts to be made to effect such a
settlement.

(3) The power conferred by sub-section (2) shall be in addition to, and not in derogation of any
other power of the Family Court to adjourn the proceedings.

Article 142 in The Constitution Of India 1949

Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc
( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such
order as is necessary for doing complete justice in any cause or matter pending before it, and any

14
decree so passed or orders so made shall be enforceable throughout the territory of India in such
manner as may be prescribed by or under any law made by Parliament and, until provision in that
behalf is so made, in such manner as the President may by order prescribe

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall,
as respects the whole of the territory of India, have all and every power to make any order for the
purpose of securing the attendance of any person, the discovery or production of any documents,
or the investigation or punishment of any contempt of itself

Credits

https://indiankanoon.org/doc/79830357/

https://www.lexology.com/library/detail.aspx

https://www.educentric.in/blog-details.html?id=355&blog=the%20cooling%20off%20period-
%20amardeep%20singh%20v.%20harveen%20kaur
https://www.lawnn.com/amardeep-singh-v-harveen-kaur
https://www.soolegal.com/rc/amardeep-singh-versus-harveen-kaur

Name of the case and its nature (Civil. Criminal or Constitutional)

Name-Vineeta Sharma vs Rakesh Sharma
Nature- civil
Vineeta Sharma vs Rakesh Sharma is a civil case as it deals with the transfer of property among
generation of the same family and for the daughter to claim rights in the coparcenary propertyas
provided undertheHindu Succession Act, 1956 which concern only the individualsand not the state.
Citation

CIVIL APPEAL NO. DIARY NO.32601 OF 2018

Name of the judges

Justice Arun Mishra
Justice S. Abdul Nazeer
Justice M.R. Shah

Parties to the Case

APPELLANT : VINEETA SHARMA
RESPONDENT :RAKESH SHARMA

Facts

15
1 The Hindu Succession Act, 1956 (Act of 1956) was enacted to amend and codify laws relating to
intestate succession among Hindus and brought about changes with respect to succession and
also conferred on women certain right which until then was not in existence.

2 Further, the Act of 1956 also recognized, under Section 6, the special right of male coparceners
of a Hindu Coparcenary to inherit by birth over the coparcenary property and laid down rules for
succession among the coparceners.

3 This, however, was discriminatory in terms of gender and also negation of constitutional right of
equality, in so far as the daughter of a coparcener was concerned. In order to do away with
discrimination, the Parliament passed the Hindu Succession (Amendment) Act of 2005 (Act of
2005), which came into effect from 09.09.2005, whereby Section 6 of the Act of 1956 was
substituted and recognized the daughter of coparcener to be on par with that of a son, and
conferred on her rights by birth on the coparcenary property, however, with a provison that
conferment of such right on a daughter shall not affect or invalidate any disposition or alienation,
partition or testamentary disposition of property took place before 20.12.2004.

4 After the amendment Act of 2005, a Division bench of the Hon‘ble Supreme Court of India, in the
case of Prakash & Others Vs. Phulavati& Others, (2016) 2 SCC 36, held that the Act of 2005 is
prospective in nature and that rights conferred on daughter, under Section 6 of the Act of 2005, is
on the living daughter of a living coparcener, requiring the coparcener to be alive as on 09.09.2005
so as to enable the daughter to claim rights over the coparcenary property.

5 In the said case, the coparcener had died prior to 2005 amendment and hence, it was held that
the daughter is not entitled to a share in the coparcenary property as she is not the daughter of a
living coparcener.

6 In a subsequent judgement of a Division bench of the Hon‘ble Supreme Court of India, in the
case of Danamma @ SumanSurpur& Another Vs. Amar & Others, (2018) 3 SCC 343, although the
Court did not specifically deal with the concept of living daughter of a living coparcener, the Court
took a contradicting view from that of decision in Phulavati case and held that daughters have
equal rights in the coparcenary property as that of son, even though the coparcener had died
before the amendment of 2005.

7 In the an appeal under analysis herein, i.e., in Vineeta Sharma v. Rakesh Sharma & Others,
similar questions were raised before the Hon‘ble Supreme Court, and considering the contradicting
view expressed by the Hon‘ble Supreme Court in the above mentioned two decisions, i.e.,

16
Phulavati case and Danamma case, the issue was referred to a larger bench constituting three
judges of the Hon‘ble Supreme Court

Issue involved

Whether the amended Section 6 of the Act of 2005 requires the coparcener to be alive as on
09.09.2005, for the daughter to claim rights in the coparcenary property?

 Whether the amended Section 6 of the Act of 2005 is prospective, retrospective or

retroactive?

Journey of the case (Through the hierarchy of courts)

The case was directly introduced in the supreme court of India under civil appeal

Points of law involved in the case, i.e. the legislations, articles, sections, etc

Section 6 in The Hindu Succession Act, 1956

Devolution of interest in coparcenary property. —

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a Joint
Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a
daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or
invalidate any disposition or alienation including any partition or testamentary disposition of
property which had taken place before the 20th day of December, 2004.

ARTICLE 14

Equality before law The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India Prohibition of discrimination on grounds of religion,
race, caste, sex or place of birth

Coparecener

Under the Mitakshara School of Hindu Law, a coparcener is a person who acquires an interest in
the joint Hindu family and gets an equal share in the property by birth and the coparcenary property
is the one which is inherited by a Hindu male from his father, grandfather, or great grandfather.

17
Arguments presented by the parties

Arguments advanced on behalf of the Union of India, by the Solicitor General of India-Shri Tushar
Mehta,

 The amendment act of 2005 is not retrospective but retroactive in nature.

 Conferment of right on the daughter did not disturb the rights which got crystalized by
partition before 20.12.2004.
 The daughter of coparcener in Section 6 does not imply daughter of a living coparcener.
The coparcener need not be alive as on the date of commencement of the Amended Act.
 The explanation to Section 6(5) as regards requirement of registered partition deed is
directory in nature and not mandatory.

Arguments advanced by learned Senior Counsel and amicus curiae, Mr. R. Venkataramani

 There is no conflict between the decisions of Phulavati and Danamma, and in both the
decisions, the provisions of Section 6 have been held to be prospective in nature.
 On the death of a coparcener, his interest would have merged with the surviving
coparcenary and hence, on the death of a coparcener father, there will be no surviving
coparcener from whom the daughter will succeed. Therefore the daughter can succeed
only in interest of a living coparcener.
 Although equality has been brought in with effect from 2005 Amendment, the incidence
of birth of a coparcener before 2005 is of no consequence.
 Oral partition and family settlement are not intended to be reopened by Section 6(1) and
6(5).

Arguments advanced by learned Senior Counsel and amicus curiae, Mr. V.V.S. Rao

 A daughter born before or after 2005 is considered as a coparcener.

 By the language used in Section 6(1)(b) & (c) the Parliament intended to mean conferring
the rights in the coparcenary posterior to the amendment and not anterior.
 As per the prevailing law, it was not necessary that a partition should be registered. In
case where an oral partition is recognised, it should be backed by proper evidentiary
support.
 Parliament did not intend to confer a daughter with rights in the coparcenary property
retrospectively.

18
  The use of the words ―on and from‖ in Section 6(1) indicates that the daughter becomes
coparcener from the commencement of the Act.
 The status of a coparcener conferred on a daughter cannot affect the past transaction of
alienation, disposition, partition – oral or written. The Explanation safeguards all genuine
transactions of the past, including oral partition effected by the parties.
 There should be a living coparcener to whom the daughter can inherit to become a
coparcener.

Shri Sridhar Potraju,Learned counsel, on behalf of the respondent, argued that

if a notional partition has taken place it should be recognised. He contended that a preliminary
decree should be considered to be finalised as it denotes that the Jointness of the Hindu family has
ended with ‗mere filing of the suit for partition‘.
He asserted and reiterated that the provisions are meant to be prospective in nature because such
interpretation is not sought through which crystallised rights of the surviving coparcener are taken
away and consequently, settled affairs are unsettled..
He reiterated that liabilities can be transferred to the daughter only from the date of amendment as
the provisions are not retrospective
. He further asserted that all past transactions should stay protected from any effects of the
amendment as On a statutory partition, the property becomes the self-acquired property and is no
more a coparcenary property.
Shri Amit Pai and Shri Sameer Shrivastav ,Learned counsel,argued that
if both the coparcener and the daughter should be alive after the commencement of the
Amendment act, it would defeat the purpose and objective of the act which is to abolish the
disparity between sons and daughters.
They argued that coparcenary arises due to birth and only exception to this rule is the process of
adoption.
However, they agree on this point that if a partition is genuinely effectuated then the daughter
should not seek partition of already divided property.

Final judgment including the ratio decidendi and obiter dicta

Ratio decidendi

1The Larger Bench of the Supreme Court, in the above Appeals, have referred to various concepts
of Hindu Law, both codified and customary, being concepts such as Coparcenary and Joint Hindu
Family and unobstructed and obstructed heritage, and also referring to catena of Judgements,
came to a finding, , that coparcener father need not be alive as 09.09.2005 in order for a daughter
to inherit rights over the coparcenary property, as per the Amended Section 6.

19
2 Explaining obstructed and unobstructed heritage, the Hon‘ble Supreme Court held that the
unobstructed heritage takes place by birth, whereas the obstructed heritage takes place after the
death of the owner. The Hon‘ble Supreme Court further went on to hold that under Section 6, right
is given by birth, making it an unobstructed heritage, and therefore coparcener father need be alive
as on 09.09.2005 in order for the daughter to inherits rights over the coparcenary property.

3 Based on these observations the apex court decided as the right to partition is created by the
birth of the daughter (unobstructed heritage), it is immaterial if the father coparcener was alive or
dead on the date in which the amendment was effected. Hence it overruled the verdict given
in Phulvati vs prakash and ruled that the coparcenary rights pass from father to a living daughter
and not from ‗a living coparcener to a living daughter‘..

4 the court, overruling the phulvati and dannmma judgement, ruled that the effects of the provisions
of section 6 are neither prospective in nature nor retrospective; but it is retroactive in nature. The
concept is explained by the Apex court and means that the equal right of coparcenary will be given
to daughter on and from 9 November 2005 but it is based upon some past event i.e. the birth of the
daughter
5 The court observed that the legislation is clear in terms that any partition effectuated before 20
December 2004 will not be invalidated by the effects of the amended provisions. But it found it
necessary, to evade bogus and fake partition just to deprive the daughter of its equal rights, the
partitions completed after the on and after 20 December 2004 should be a genuine one. To check
the same, the court held that any partition effectuated after 20 December 2004 must be a
registered one or a partition effectuated by a decree of the court, and as settled earlier it should be
a final decree
obiter dicta

1 The court also held that notional partition doesn‘t mean that actual partition has been effectuated.
As notional partition is a legal fiction, it should be used and implied up to a certain limit and to only
fulfil the purpose it was created for.
2 In this case, a notional partition is created as to ascertain the share of each coparcener of the
joint Hindu family. The court reiterated that the ascertainment of the shares distributed and fixated
upon notional partition are not final, as the birth of a new coparcener or the death of any existing
coparcener can either increase of decrease the shares of the other coparceners.
3 It also ruled that, consequentially, a daughter can claim a share in the joint family property even
if notional partition is done before 9 November 2005 as the notional partition is not an actual
partition and just because of it, the coparcenary property doesn‘t cease to exist.
Impact of the case
1 Though this is a landmark judgement, cleaning up the earlier confusion, and helps in the forward
march of women‘s rights and law
2 By granting women equal right in Hindu joint family property with retrospective effect, the
Supreme Court has removed the last vestiges of gender discrimination in coparcenary rights that
had lingered on despite a change in law.

20
3 The patriarchal law that was prevailing prior to 2005 traced its origins to the age-old belief that
women would belong to another family by marriage, and were not deserving of family property. By
upholding the rights of daughters to be as equal as sons, the court has extended women the
respect and right due to them
legal provisions of the case.
Section 6 in The Hindu Succession Act, 1956
3
[ 6 Devolution of interest in coparcenary property. —
(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a Joint
Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a
daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or
invalidate any disposition or alienation including any partition or testamentary disposition of
property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be
held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding
anything contained in this Act or any other law for the time being in force in, as property capable of
being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act,
2005*, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall
devolve by testamentary or intestate succession, as the case may be, under this Act and not by
survivorship, and the coparcenary property shall be deemed to have been divided as if a partition
had taken place and,—
(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had
they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased
son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as
such child would have got had he or she been alive at the time of the partition, shall be allotted to
the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the
case may be.

Explanation. —For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener
shall be deemed to be the share in the property that would have been allotted to him if a partition of
the property had taken place immediately before his death, irrespective of whether he was entitled
to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005*, no court shall
recognise any right to proceed against a son, grandson or great-grandson for the recovery of any
debt due from his father, grandfather or great-grandfather solely on the ground of the pious
obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such
debt: Provided that in the case of any debt contracted before the commencement of the Hindu
Succession (Amendment) Act, 2005*, nothing contained in this sub-section shall affect—

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case
may be; or

21
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or
alienation shall be enforceable under the rule of pious obligation in the same manner and to the
same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005
had not been enacted.

Explanation. —For the purposes of clause (a), the expression ―son‖, ―grandson‖ or ―great-
grandson‖ shall be deemed to refer to the son, grandson or great-grandson, as the case may be,
who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act,
2005*.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th
day of December, 2004. Explanation. —For the purposes of this section “partition” means any partition
made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908)
or partition effected by a decree of a court.] Statement of Objects and Reasons [The Hindu Succession
(Amendment) Act, 2005] Section 6 of the Act deals with devolution of interest of a male Hindu in
coparcenary property and recognises the rule of devolution by survivorship among the members of the
coparcenary. The retention of the Mitakshara coparcenary property without including the females in it
means that the females cannot inherit in ancestral property as their male counterparts do. The law by
excluding the daughter from participating in the coparcenary ownership not only contributes to her
discrimination on the ground of gender but also has led to oppression and negation of her fundamental
right of equality guaranteed by the Constitution having regard to the need to render social justice to
women

in a joint Hindu family governed by Mitakshara law, the daughter of a co-parcener shall by birth
become a co-parcener in her own right in the same manner as the son and have the same rights in the
co-parcenary property as she would have had if she had been a son inclusive of the right to claim by
survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son;
(b) at a partition in such a joint Hindu family the co-parcenary property shall be so divided as to allot to
a daughter the same share as is allotable to a son: Provided that the share which a predeceased son or
a predeceased daughter would have got at the partition if he or she had been alive at the time of the
partition, shall be allotted to the surviving child of such predeceased son or of such predeceased
daughter: Provided further that the share allotable to the predeceased child of a predeceased son or of
a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the
child of such predeceased child of the predeceased son or of such predeceased daughter, as the case
may be;
(c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall
be held by her with the incidents of co-parcenary ownership and shall be regarded, notwithstanding
anything contained in this Act or any other law for the time being in force, as property capable of being
disposed of by her by will or other testamentary disposition;
.ARTICLE 14

Equality before law The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India Prohibition of discrimination on grounds of religion,
race, caste, sex or place of birth

22
(Rest to be copied from the img below)

The Word observation and conclusion to be written

Coparecener
Under the Mitakshara School of Hindu Law, a coparcener is a person who acquires an interest in
the joint Hindu family and gets an equal share in the property by birth and the coparcenary property
is the one which is inherited by a Hindu male from his father, grandfather, or great grandfather.
Coparcenary property is a patriarchal concept that is deeply rooted in male right to property by birth
in a Hindu joint family. A Hindu joint family consists of lineal descendants of a common ancestor
consisting of sons, grandsons and great-grandsons. This smaller group of the family jointly owns
property and thus the co-ownership is marked by title and interest in the property

23
CREDITS
https://blog.ipleaders.in/case-analysis-vineeta-sharma-v-rakesh-sharma-others-along-7-
matters/
http://www.legalserviceindia.com/legal/article-4710-vineeta-sharma-v-rakesh-sharma-an-
case-analysis.html
https://indiankanoon.org/doc/67965481/
https://www.barandbench.com/columns/vineeta-sharma-v-rakesh-sharma-gender-equality-
hindu-property-law
https://www.scconline.com/blog/post/2021/01/22/daughters-the-new-equals/

Name of the case and its nature (Civil. Criminal or Constitutional)

Name: Subramanian Swamy vs. Union of India

Nature: criminal

 Subramanian Swamy vs. Union of India qualifies as a criminal case as prominent

politicians were charged with criminal defamation and they challenged its constitutional validity
provided under Section 499 and 500 of IPC and Section 199(1) and 199(4) of CRPC as it
goes against freedomof freedom of speech and expression under Art 19(a) of the
Constitution

Citation

Writ petition (Criminal) No. 184 of 2014

Name of the judges

Justice DipakMisra CJI

Justice Prafulla C. Pant

Parties to the Case

Petitioner

Subramanian Swamy

Respondent

Union of India, Ministry if Law &ors.

Facts of the case

24
 1. In 2014 BJP Leader Subramanian Swamy once tweeted about Ms. Jayalalitha (the then
Chief Minister of Tamil Nadu) and an LTTE (Liberation Tigers of Tamil Eelam) meeting in
Tamil Nadu

2. Rahul Gandhi made a speech alleging RSS involvement in the assassination of Mahatma
Gandhi. And Arvind Kejriwal once accused Nitin Gadkari of being corrupt.

3. Dr. Subramanian Swamy and such other prominent politicians including Rahul Gandhi and
Arvind Kejriwal were charged for criminal defamation and they challenged the constitutional
validity of the criminal defamation law in India provided under Section 499 and 500 of IPC
and Section 199(1) and 199(4) of CRPC.

4. The petitioners contended that criminal defamation is per se unconstitutional as it violative of

the Right to freedom of expression.

Issue involved
The issues raised in this case are:

 Whether Sec 499 of CrPC is violative of freedom of speech and expression under Art
19(a) of the Constitution.
 Whether Sec 199(1) and 199(4) is violative of Art 19(a) of the Constitution.

Journey of the case (Through the hierarchy of courts)

Case was filed directly in the In the Supreme Court of India under Criminal original jurisdiction

Points of law involved in the case, i.e. the legislations, articles, sections, etc

Sec 499 says that whoever, by words either spoken or intended to be read or by signs or by visible
representations, makes or publishes any imputation concerning any person intending to harm, or
knowing or having reason to believe that such imputation will harm, the reputation of such person
is said to defame that person. The section also gives 10 exceptions upon which the act would not
be deemed to be defamatory.
Sec 500 states that whoever defames another shall be punished with simple imprisonment for a
term which may extend to two years , or with fine, or with both.
Section 199 of CrPC provides for prosecution for defamation.
Sec 199(1) says that Court shall take cognizance of an offence punishable under Chapter XXI of
the Indian Penal Code only when a complaint is made by the aggrieved person.
Sec 199(4) says about complaint made by the Public Prosecutor.
Article19. Protection of certain rights regarding freedom of speech etc

25
All citizens shall have the right -
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practise any profession, or to carry on any occupation, trade or business

(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the
State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the
right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the
security of the State, friendly relations with foreign States, public order, decency or morality or in
relation to contempt of court, defamation or incitement to an offence

Arguments presented by the parties

Arguments in favour of the Petitioners
1. The right to uninhibited freedom of speech under Art 19(1)a is vital for the sustenance of
parliamentary democracy. Sec 499 of IPC ex facie infringes free speech and is a serious inhibition
on the fundamental right under Art 19(1)(a).

2. The power under Art 19(2) to impose reasonable restrictions is intended to safeguard the
interest of the State and not of any individual. And so Art 19(2) cannot be regarded as a source of
authority for Sec 499 IPC.

3. A restriction that goes beyond the requirement of public interest cannot be considered as a
reasonable restriction and would be arbitrary.

4. Art 19(2) is an exception to Art 19 and so it needs to be construed narrowly and not liberally.

5. Defamation of an individual is a civil wrong, for which the common law remedy is an action for
damages.

6. Defamation of any person is unconnected with fundamental right under Art 19(1)a and so Sec
499 is outside the scope of Art 19(2)

7. Right to one‘s reputation which is a facet of Art 21is basically applicable against State and
hence Art 19 (2) cannot be invoked.

26
8. Crime is an offence against the society of which the state is the custodian, defamation of any
person by private person cannot be treated as a ―crime‖ for it does not subserve any public
interest.

9. The provision even goes to the extent of speaking of truth as an offence punishable with
imprisonment and thus defeats the cherished value as enshrined under Art 51-A(b) which is
associated with the national struggle of freedom.

10. The requirement of the accused having to prove that the statement made by him was for public
good is unwarranted and unreasonable because the words ―public good‖ are quite vague.

11. The procedural provisions Sec 199 of CrPC do not pass the test of reasonableness as
envisaged under Art 19(2) of the Constitution.

12. The classification under Sec 199(2) CrPC is impermissible as it provides a different procedure
for certain category of person and Court of Session to be the Court of first instance, and thereby
creates two kinds of procedure and effects the equality clause.

Arguments in favour of Respondents

1. Art 19(1)(a) is not an unbridled right to free speech or defamatory speech since Art 19(2) is
an integral part of right to free speech.

2. The right to free speech under Art 19(1)(a) is itself conditioned/qualified by restrictions
contained in Art 19(2) which includes ―defamation‖ as one of the grounds of restriction and
the term ―defamation‖ has to include criminal defamation, and there is nothing to suggest its
exclusion.

3. Contextual meaning of the term ―defamation‖; and the grounds of exceptions under Art 19(2)
represent a public interest as its principal object is to preserve reputation as a shared value of the
collective.

4. The stand that Sec 499 puts private wrong at the level of public wrong is totally incorrect, as
defamation or damage to reputation is an act that is meant to subserve basic harmony in polity.

5. An injury to reputation cannot be adequately compensated in monetary terms and the stand that
the same can be remedied through by way of obtaining a decree from the civil court is not justified.

6. There has to be a balancing of rights enshrined under Art 19(1)(a) and Art 21 since a person‘s
reputation is an element of individuals personality under Art 21 and it cannot be allowed to be
tarnished in the name of right to freedom of speech. Moreover the right to speech and expression
does not mean right to offend.

7. Protection of reputation can be achieved by taking recourse to civil law cannot be a ground to
declare Sec 499 as unconstitutional. Remedy under Civil law and Criminal law for defamation are
difference and hence do not constitute any discomfort to any of the provisions of the Constitution.

27
8. The value of freedom of speech cannot be allowed to have the derogatory effect on individual
dignity, which is also an integral part under Art 21.

9. The provision have stood the test of time after the commencement of the Constitution and the
concept of ―reputation‖ has not been diluted but has become an essential constituent of Art 21.

10. The ten exceptions provide reasonable safeguard to the provision and so it can never be said
that the provision suffers from lack of guidance thereby inviting the frown of Art 14 of the
Constitution.

11. The argument that the word ―defamation‖ in Art 19(2) must be read by applying the rule
of noscitur a sociis is not correct as the word ―defamation‖ is clearly not susceptible to analogous
meaning with the other grounds mentioned therein.

Final judgment including the ratio decidendi and obiter dicta

Ratio decidendi
1 .The judgment in this case was delivered by Justice DipakMisra and Justice Prafulla C. Pant.
The judges first analyzed the meaning of the terms ‗defamation‘ and ‗reputation‘, and the
interaction of these terms with right of the freedom of speech and expression.
2. The Court after reviewing found that the terms were clear and unambiguous. The Court
further found that the concept of ‗reputation‘ is a part of ‗dignity‘, which is a part of the
constitutionally protected right to life under Art.21.

3. The Court recognised the sanctity and significance of the right to freedom of speech and
expression in a democracy, but subject to reasonable restrictions. Such restrictions should
serve the public interest. Legislation by which restrictions are enacted should not invade the
rights and should not be arbitrary

4. The Court also opined that Sec 499 which stipulates defamation of a private person by
another individual, has no nexus with Art 19(1) (a) of the constitution, for Art 19(2) involves
the public interest and not that of an individual and therefore the provision cannot be the
source of criminal defamation.

5. The Court repelled the contention that the exceptions under Sec 499 are required to be
considered at the time of summoning the accused and not conceiving the same in provision
would make it unconstitutional. It was stated that it is settled position of law that those who
plead an exception must prove it and with regard to taking into consideration the exceptions
at the time of issuing the summons would be contrary to established criminal jurisprudence.

6. Examining the stated provision on defamation (Section 499 and 500 of IPC, Section 199(1)
and 199(4) of CrPC), the Court concluded that these were neither vague nor ambiguous. An
imputation can only be treated as defamatory if it either directly or indirectly, in the
estimation of others, lowers a person‘s character. Truth is a defence only when a statement
serves the public good.

28
 7. Another issue considered by this Court was whether the said doctrine of noscitur a
soccis should be applied to the expression ―incitement of an offence‖ used in Art 19(2) so
that it gets associated with the term ―defamation‖.
8. The Court was of the considered opinion that there is no warrant to apply the principle the
principle of noscitur a sociis to give a restricted meaning to the term ―defamation‖ that it only
includes a criminal action if it gives rise to the incitement to constitute an offence. And it is
difficult to accede to the submission that defamation can only get criminality if it incites to
make an offence.

9. In view of the aforesaid analysis, the Court upheld the constitutional validity of Sec 499 and
500 of the Indian Penal Code and Section 199 of the Code of Criminal Procedure. the Court
held that the penal code provisions are not disproportionate. The reasonableness and
proportionality of a restriction is examined from the stand point of the interest of the general
public, and not from the point of view of the person upon whom the restrictions are imposed.
Therefore, the Court judged the criminal defamation laws to be proportionate.

obiter dicta
1. the Court examined various International Covenants that stress the significance of
reputation and honour in a person‘s life including the Universal Declaration on Human
Rights, 1948, European Convention for the Protection of Human Rights and Fundamental
Rights and Fundamental Freedoms and the International Covenant on Civil and Political
Rights.
2. The Court also makes note of the law relating to reputation, freedom of speech and
defamation in foreign countries for instance in U.K the Court is of the opinion that ‗freedom
of speech may be subject to such restrictions as are prescribed by law and are necessary in
a democratic society for the protection of the reputation of others.
3. The Court further emphasised the importance Constitutional fraternity and fundamental duty,
under which every citizen is expected to respect the dignity of another. Noting this as a
constitutional duty, the Court held that it could not be concluded that the existence of
criminal defamation law is obnoxious to freedom of speech and expression.

4. It further renounced the contention that defamation is fundamentally a conception of the

majority meant to debilitate the freedom of speech and expression as too broad a
proposition to be treated as a guiding principle to determine the reasonableness of a
restriction.

Impact of the case

1. The most important function of any democratic Government is to maintain the balance
between various rights enjoyed by the public.

2. If such a balance is not arrived then the entire system of the country will go into chaos. This
instant case presents a similar situation, the two conflicting rights being freedom of speech
and expression and right to reputation.

3. The Court through this judgment has very aptly striked a balance between these two rights.
The Court has carefully examined the scope and significance of both the rights, and then
realized the need for balancing the two rights

29
 4. This judgment very efficiently describes the importance of freedom of speech and
expression but at the same time states that the same freedom is not devoid of any limit and
that this freedom cannot be exercised by any individual to harm the reputation of another.

5. Thus it can be said that this judgment will provide a good precedent for any conflicts that
arise in exercise of rights and freedom enjoyed by the public

legal provisions of the case.

Section 499 of the IPC provides for defamation which includes the following -

It may amount to defamation to impute anything to a deceased person, if the imputation would
harm the reputation of that person if living, and is intended to be hurtful to the feelings of his
family or other near relatives.
It may amount to defamation to make an imputation concerning a company or an association
or collection of persons as such
An imputation in the form of an alternative or expressed ironically, may amount to defamation.
No imputation is said to harm a person‘s reputation, unless that imputation directly or indirectly,
in the estimation of others, lowers the moral or intellectual character of that person, or lowers
the character of that person in respect of his caste or of his calling, or lowers the credit of that
person, or causes it to be believed that the body of that person is in a loathsome state, or in a
state generally considered as disgraceful Illustrations .
Sec 500 of IPC states that whoever defames another shall be punished with simple imprisonment for a
term which may extend to two years , or with fine, or with both.

Sec 199 (1) of the CrPC says that No Court shall take cognizance of an offence punishable
under Chapter XXI of the Indian Penal Code (45 of 1860 ) except upon a complaint made by
some person aggrieved by the offence: Provided that where such person is under the age of
eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a
complaint, or is a woman who, according to the local customs and manners, ought not to be
compelled to appear in public, some other person may, with the leave of the Court make a
complaint on his or her behalf.

Sec 199 (4 ) of the CrPC deals with No complaint shall be made by the Public Prosecutor
except with the previous sanction-
(a) of the State Government, in the case of a person who is or has been the Governor of that
State or a Minister of that Government;
(b) of the State Government, in the case of any other public servant employed in connection
with the affairs of the State;
(c) of the Central Government, in any other case.

Noscitur a Sociis
The principle of Noscitur a Sociis is a rule of construction. It is one of the rules of language used
by court to interpret legislation. This means that, the meaning of an unclear word or phrase should
be determined by the words immediately surrounding it.

30
Article 19 in The Constitution Of India
Copy from img below
Word observation and conclusion not to be written

31
Credits
https://lawtimesjournal.in/subramanian-swamy-vs-union-of-india-ministry-of-law-ors/
https://globalfreedomofexpression.columbia.edu/cases/subramanian-swamy-v-union-india
https://www.scobserver.in/court-case/defamation-as-a-criminal-offence
https://indiankanoon.org/search/?formInput=subramaniam%20swamy
https://scroll.in/article/740037/why-subramanian-swamy-vs-union-of-india-is-arguably-the-most-
significant-free-speech-case-in-years

32
Name of the case and its nature (Civil. Criminal or Constitutional)
Name-LalitaKumari vs Govt.Of U.P

Nature- criminal

LalitaKumari vs Govt.Of U.P is a criminal case as an offence was committed against the state.
It involves section 154 of the Code of Criminal Procedure, 1973 and the FIR which is made to the
police with the object of putting the police in motion in order to investigate a crime.

Citation

WRIT PETITION (CRIMINAL) NO. 68 OF 2008

Name of the judges

.Justice P. SATHASIVAM
.Justice DR. B.S. CHAUHAN
.Justice RANJANA PRAKASH DESAI
.Justice RANJAN GOGOI
.Justice S.A. BOBDE
Not to be written in capital

Parties to the Case

Petitioner: LalitaKumari
Respondents: Govt. of U.P. and Others
Facts of the case

1. The present writ petition, under Article 32 of the Constitution, has been filed by one
LalitaKumari (minor) through her father, viz., Shri BholaKamat for the issuance of a writ
of Habeas Corpus or direction(s) of like nature against the respondents herein for the
protection of his minor daughter who has been kidnapped.

2. The grievance in the said writ petition is that on 11.05.2008, a written report was
submitted by the petitioner before the officer in-charge of the police station concerned
who did not take any action on the same.

3. Thereafter, when the Superintendent of Police was moved, an FIR was registered.
According to the petitioner, even thereafter, steps were not taken either for
apprehending the accused or for the recovery of the minor girl child.
Issue involved

33
The important issue which arises for consideration in the referred matter is whether ―a police officer
is bound to register a First Information Report (FIR) upon receiving any information relating to
commission of a cognizable offence under Section 154 of the Code of Criminal Procedure, 1973
(in short ‗the Code‘) or the police officer has the power to conduct a ―preliminary inquiry‖ in order to
test the veracity of such information before registering the same?‖

Journey of the case (Through the hierarchy of courts)

The case was directly filed to the Sc as the petitioner invoked writ petition, ( Habeas Corpus )
under article 32 as guaranteed in the constitution of india for the enforcement of fundamental rights

Points of law involved in the case, i.e. the legislations, articles, sections, etc

section 154 of the Code of Criminal Procedure, 1973

. Information in cognizable cases.

(1) Every information relating to the commission of a cognizable offence, if given orally to an officer
in charge of a police station, shall be reduced to writing by him or under his direction, and be read
Over to the informant; and every such information, whether given in writing or reduced to writing as
aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a
book to be kept by such officer in such form as the State Government may prescribe in this behalf.

Article 32
Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever
may be appropriate, for the enforcement of any of the rights conferred by this Part

ARTICLE 14
Equality before law The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India Prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth

Arguments presented by the parties

Petitioner's Contentions

1. The use of word 'Shall' in Section 154(1) indicates that there is no discretion left to the police officer
except to register the FIR.

2. Section 154(1) mentions the word 'Information' without prefixing the words 'reasonable' or 'credible' which
indicates that genuineness or credibility of the information is not a condition precedent for registration of
case

Respondent's Contentions

34
 1. the registration of FIR is mandatory u/s 154 of the CrPC, if the information discloses a cognizable offence
and no preliminary inquiry is allowed in such situations.

2. a preliminary inquiry should be conducted before the registration of FIR on the following basis:

a. The provisions of Section 154(1) must be read in the light of Articles 14, 19 and 21 which provides that no
citizen shall be subjected to malicious prosecution and an innocent shall not be implicated in a criminal case.
The liberty of a citizen would be in jeopardy if a police officer proceeds to register an FIR, despite not being
satisfied about the commission of a cognizable offence.

b. Section 154(3) enables the complainant to approach the Superintendent of Police to register the FIR if the
same is refused by the officer in-charge of the police station. This indicates that the police officer is not bound
to register the FIR if he has doubts about the veracity of the complaint.

c. The recording of FIR under Section 154 in the book is subsequent to the entry in the General Diary,
maintained in police station. Therefore, information is a document at the earliest in the General Diary, then if
any preliminary inquiry is needed, the police officer conduct the same and thereafter, the information is
recorded as FIR.

Final judgment including the ratio decidendi and obiter dicta

Ratio decidendi

The Supreme Court observed that

1 Registration of FIR is mandatory under section 154, if information discloses
commission of a cognizable offence and no preliminary inquiry is to be done in such
case.
2. If information received does not disclose a cognizable offence but indicates the
necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain
whether there was a commission of a cognizable offence or not.
3. If an unanimous complaint is lodged, it must first be put in the list of preliminary
inquiry, if there is well found substance regarding commission of cognizable offence,
then FIR is to be registered.
4. If there is a chance that a certain complaint could be false, preliminary inquiry is
to be conducted. 5. If preliminary inquiry discloses commission of a cognizable
offence, the FIR must be registered. In cases where preliminary inquiry ends in
closing the complaint, the copy of the entry of such closure must be supplied to the
first informant within a week disclosing the reason behind closing the case.
6. The police officer cannot avoid his duty of registering offence if cognizable
offence is disclosed. Action must be taken against erring officers.

35
7. Scope of preliminary inquiry is not to verify veracity or otherwise of the information
received but only to ascertain whether information received discloses commission of
cognizable offence or not.
8. As to what type and in which cases preliminary inquiry is to be conducted will
depend on facts and circumstances of each case. Preliminary inquiry must be done
in cases like
a. matrimonial disputes or family disputes
b. commercial offences
c. medical negligence
d. corruption cases
e. cases where there is an abnormal delay or laches in reporting the matter.
9. While ensuring and protecting rights of accused and complainant, a preliminary
inquiry must not exceed 7 days. In case of further delay, the reason behind the delay
must be noted down in the General Diary.
10. Since general diary or station diary or daily diary is the record of all information
received in a police station, it is directed that all information relating to cognizable
offences, whether resulting in registration of FIR or leading to an inquiry must be
meticulously noted in such diary. If preliminary inquiry is done, the reason behind
doing so is to be noted.
Orbiter dicta
1.It
was held that section 154(1) is mandatory in nature as the use of the word ―shall‖
leaves out no room for discretion by the police.
2. The use of this word tells us about the legislative intention. The legislative makers
have not use words like ‗reasonable complaint‘ and ‗credible information‘ under
section 154(1).
3.The absence of these words shows that ‗reasonableness‘ or ‗credibility‘ of the
received information is not a condition precedent for registration of a case.
4.Use of the word ―shall‖ does not mean police does not have any discretion. If it is a
fake case, the FIR would become useless in the end. In that case, the police officer
would submit a closure report to the magistrate
Impact of the case

1,Lalita kumari judgement is a precedent in the criminal law as it makes filing of FIR mandatory,
reasonableness‘ or ‗credibility‘ of the received information is not a condition precedent for
registration of a case.

2.The registration of a FIR as an administrative act which demands the facts be applied,
scrutinized and checked, since no administrative act can ever be mechanical.

36
3.This requirement is laid by the rule of law. The term ‗shall‘ used in the Statute does not
necessarily indicate that there is no discretion in the hands of police. FIR is not a condition
precedent for setting criminal investigation in motion

legal provisions of the case.

section 154 of the Code of Criminal Procedure, 1973

. Information in cognizable cases.

(1) Every information relating to the commission of a cognizable offence, if given orally to an officer
in charge of a police station, shall be reduced to writing by him or under his direction, and be read
Over to the informant; and every such information, whether given in writing or reduced to writing as
aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a
book to be kept by such officer in such form as the State Government may prescribe in this behalf.

(2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of
cost, to the informant.

3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to
record the information referred to in subsection (1) may send the substance of such
information, in writing and by post, to the Superintendent of Police concerned who, if satisfied
that such information discloses the commission of a cognizable offence, shall either investigate
the case himself or direct an investigation to be made by any police officer subordinate to him,
in the manner provided by this Code, and such officer shall have all the powers of an officer in
charge of the police station in relation to that offence.

Article 14

The constitutional right to equality secured under Article 14 of Indian Constitution serves as a protection
against arbitrary or unguided exercise of discretionary power conferred upon them by the statute.
Notwithstanding the presumption in favour of statutory wisdom and authorities exercising authority in good
faith, giving unfettered discretion to government officials through the use of broad and vague language in
law clauses, strikes at the very foundations of justice, non-arbitrariness and equality.

Article 32

To be copied from img below

Only article 32 to be copied not 226, word conclusion and observation not to be written

FIR

The report first recorded by the police relating to the commission of a cognizable case is the First
Information Report (FIR) giving first information of the cognizable crime. This is usually made by the
complainant or by someone on his behalf. The FIR is made to the police with the object of putting the police
in motion in order to investigate a crime.

CREDITS
https://lawlex.org/lex-pedia/critical-analysis-of-lalita-kumari-vs-government-of-uttar-pradesh-
ors/19741
https://indiankanoon.org/doc/10239019/

37
https://blog.ipleaders.in/critical-analysis-of-lalita-kumari-v-govt-of-u-p/
http://www.legalserviceindia.com/legal/article-2870-lalita-kumari-v-s-state-of-u-p.html
https://www.lawctopus.com/academike/registration-fir-light-lalita-kumari-v-govt-uttar-pradesh/

38