'Best Of Times, Worst Of Times': Justice Deepak Gupta Discusses Supreme Court Judgments Which Expanded & Restricted Fundamental Rights In Last Decade

Former Supreme Court Judge, Justice Deepak Gupta delivered a lecture on the topic "Development of Fundamental Rights Jurisprudence in Last 10 years" as part of LiveLaw's 10th anniversary lecture series. This was the 2nd lecture of the series, which was inaugurated by former Chief Justice of India UU Lalit on July 3.

Justice Gupta, delivered a comprehensive lecture shedding light on the judgments of the Supreme Court from the last decade that enhanced the scope of Fundamental Rights in the country but also pointed out certain judgements that strikes at personal liberty and freedom and have put a dampner on Fundamental Rights for its citizens. He also discussed certain cases that are pending consideration before the Apex Court, which according to him need to be determined soon, as they have a significant bearing on democracy and fundamental rights of citizens.

Justice Gupta used the famous lines of Charles Dickens to describe the development of fundamental rights jurisprudence in the last decade “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of light, it was the season of darkness, it was the spring of hope, it was the winter of despair.”

Decisions That Expanded The Scope Of Fundamental Rights 

1. Lillu V State of Haryana AIR 2013 SC 1784, the judgment that abolished the Two-finger Test. The Court in this case held that the Two-Finger test has no scientific backing and is based on the archaic concept of a hymen determining whether a woman is a virgin or not. The Court said that the test “violates the right of rape survivors to privacy, physical and mental integrity and dignity.”. Later in 2022, a bench of Justices DY Chandrachud and Hima Kohli in State of Jharkhand vs Shailendra Kumar Rai @ Pandav Rai, CrA 1441 of 2022, reiterated this and said it is regrettable that "two-finger test" continues to be conducted even today. 

2. People’s Union For Civil Liberties Vs. Union Of India (2013) 10 SCC 1, the judgment that considered whether a citizen has the right to say they don't want to vote for anyone by casting a NOTA vote. The Court in this case said that even though the right to vote was a statutory right, a citizen also has a constitutional right to not vote for anyone. "According to me this is an important judgement, because in a democracy like ours, it emphasizes the role of the voter. The citizens decide how democracy is run." Justice Gupta said. 

3. National Legal Services Authority (NALSA) Vs. Union Of India, AIR 2014 SC 1863, the judgment that legally recognized persons who fall outside the male/female gender binary, including persons who identify as “third gender”. "People who were marginalized and who were not even treated as human beings, were given the dignity to identify themselves as a third gender. This is a remarkable development. In the last one year there has been a raging debate both inside and outside of court on what is meant by 'gender', but this judgement didn't refer to biological characteristics but the innate perception of one's gender. It was further held that, no third gender person could be subjected to a medical examination that would invade their right to privacy. The court held that the right to dignity, includes the right to self expression even in matters of sexual orientation." Justice Gupta explained.

4. Shreya Singhal v Union of India, AIR 2015 SC 1523, the judgement which struck down Section 66A of the Information Technology Act 2000, as unconstitutional. In Shreya Singhal's case the court held that Section 66A of the IT Act could have a 'chilling effect', on the freedom of speech and expression. Justice Gupta described this as one of the most important judgements of the past decade. "It has widened the scope of freedom of speech. It has restricted the limitation that can be placed on this right." he said.  Justice Nariman while dealing with Section 66A of the IT Act, held that though Art. 19(2) allows the government to impose restrictions in the interest security of the state etc., this must be shown to be possible and probable. An important aspect of this judgment is Justice Nariman divided freedom of speech and expression into three 1) Discussion 2) Advocacy and 3) Incitement, Justice Gupta explained. "The right of free speech cannot be curtailed at the stage of discussion or advocacy. It is only when incitement takes place, that the state can step in."

5. Supreme Court Advocates-on-record Association & Vs. Union of India (2016) 5 SCC 1, known as the 'Fourth Judges' case, where the Court by a majority of 4:1 struck down the 99th Amendment and consequently the National Judicial Appointments Commission Act, 2014 (NJAC Act) as unconstitutional and void. The NJAC Act proposed a greater role for the executive in making judicial appointments. This judgement upheld the system of the collegium though it laid down certain safeguards. It held that the NJAC Act violates the separation of powers and affects the independence of the judiciary. “For me, the importance of the judgment is that it says the independence of judiciary is paramount and that there must be separation of powers. In fact, there could be no real democracy if the judiciary is not independent.“ Justice Gupta said. 

6. Anita Thakur Vs. Government of Jammu and Kashmir (2016) 15 SCC 525, where it was held that the right to protest and dissent is inherent in Part 3 of the constitution. "But this right could not be exercised in a manner that it affected the rights of another citizen, who wanted to go about his normal life.. This was again reiterated by Justice Kaul in the Shaheen Bhag incident." Justice Gupta explained.  In this regard Justice Gupta quoted Zechariah Chafee 'Your right to swing your arms ends just where the other man's nose begins.'

7. Shayara Bano vs. Union of India (2017) 9 SCC 1, in which the practice of Triple Talaq was held to be unconstitutional by 3:2 majority. The majority found that this practice had no place in Muslim law. Though Justice Nariman also held that it violated Article 14 and 21, Justice Kurian did not go as far, Justice Gupta explained. Justice Kurian said that it is not proved that the practice of triple talaq is part and parcel of Islamic law and hence it could be challenged. “This is important in the context of how far should courts go in the matter of religion. In most countries courts don't enter the domain of religion. However, in India we have been doing so. The question that arises is when there is a conflict between Fundamental Rights and religious practices, can the courts intervene?" Justice Gupta remarked.

8. Justice K.S.Puttaswamy (Retd) vs Union Of India (2017) 10 SCC 1, in which a nine Judge Bench unanimously reaffirmed the right to privacy as a fundamental right. "The Right to Privacy is a right that will evolve, we are in the early days. The ruling is barely 6 years old. Like the Right to Life evolved in the 80s and 90s to include Right to Dignity, Right To Environment etc. this will also evolve is my view." Justice Gupta said.

9. Independent Thought vs. Union of India (2017) 10 SCC 800, in which the constitutionality of Section 375(2) of the IPC which decriminalised sexual intercouse by a husband with his wife between the ages of 15 and 18 year was challenged. The Court read down exception 2 to Section 375 insofar as it permitted a husband to have sexual intercourse with his wife below the age of 18 years of age. The judgement was delivered by Justice Gupta and Justice Madan Lokur. "One thing that worried me, is does the court have the right to create an offence? In my opinion, I have answered that the offence was there in the main section, so we have not created a new offence. We have set aside the exception and not created an offence. In that sense, a landmark judgment on how the interpretation of the court can make something an offence." Justice Gupta said. 

10. Common Cause v Union Of India (2017) 10 SCC 1 which held that the right to die with dignity was a fundamental right under Article 21. Explaining the relevance of this ruling Justice Gupta said "This was the first time, that the court laid down directions for a person to make a living will, if the condition of a person reaches a state of no recovery and pain, the doctor could pull away the life support system and let them die in peace. This showed that the court even in the absence of the legislation can move ahead with the times." 

11.Joseph Shine V Union of India (2019) 3 SCC 39 in which adultery was decriminalized. The Supreme Court in this judgment struck down Section 497 of the Indian Penal Code as unconstitutional, being violative of Articles 14, 15 and 21. It was held that Section 497 deprived a woman of her sexual freedom and denuded her of autonomy, dignity and privacy. "The Court held that this law violates basic human rights, where the woman is treated as property or chattel" Justice Gupta remarked. 

12. Navtej Singh Johar vs. Union of India, (AIR 2018 SC 4321), in which the Apex Court read down Section 377 to the extent it criminalised consensual sexual conduct between adults. The 5 judge bench unanimously found that the criminalisation of consensual sexual acts between persons of the same sex to be in violation of the Articles 14, 15, 19, and 21 of Constitution. This ruling found sexual autonomy to be a facet of individual liberty. "This judgment is the forerunner of many other cases I'm sure. We already have the case of same sex marriages pending the supreme court. From what I read in the papers, the dispute is not whether same sex marriage should be allowed or not. The consensus seems to be that it should be allowed, the difference of opinion lies in whether legislature should allow it or if the court has the jurisdiction. We will wait on the court's judgment on that.." Justice Gupta opined. 

13. Anuradha Bhasin V. Union Of India, AIR 2020 SC 1308 where the Supreme Court held that freedom of expression through the internet is one of the “integral parts” of Article 19(1)(a). The matter came up before the Apex Court in light of suspension of internet services in Jammu and Kashmir. Justice Gupta however, criticised the ruling for not giving any real relief to the affected parties. "This is very important in the context of freedom of speech and expression. The court after having said everything in the favour of the claimant, they were not given any real relief. I think once the court decides that something is unconstitutional, it should not waver while guaranteeing relief to the citizens. Once it is proved that Fundamental Rights are violated the citizen must get complete justice." Justice Gupta emphasized. 

14. X v. Principal Secretary, Health and Family Welfare, Govt of NCT Delhi, Special Leave Petition 2022 LiveLaw (SC) 802 in which the scope of Rule 3B of the Medical termination of Pregnancy Rules was expanded to include unmarried women and survivors of marital rape for abortions between 20 and 24 weeks.  Hence, under the MTP Act unmarried women were also given the right to terminate pregnancy. The Court was of the view that excluding unmarried women from the ambit of this provision violated Article 14. "This is important because it accepts a woman's reproductive choice to be inseparable to her right to personal liberty under Art. 21." Justice Gupta stated 

15. Janhit Abhiyan v. Union of India, 2022 LiveLaw (SC) 922,  where in a 3-2 majority, the Supreme Court upheld the 103rd Constitutional Amendment providing EWS reservation. "This was the first time in our history economic based reservation was permitted" Justice Gupta said while explaining its significance. "Reservations have been part of our system from the very beginning. Many times it was felt why should the poorest of the poor in so called forward classes suffer? Therefore the government stepped in with 10% reservation for EWS. In this judgment even the minority decision does not say that there can't be reservation for EWS. But the court asked why are you leaving out the 10% in the SC ST classes also?" Justice Gupta explained. 

16. Anoop Baranwal vs Union of India, 2023 LiveLaw (SC) 155, where the Supreme Court directed that the Election Commissioner be appointed by the President of India on the advice of a Committee consisting of the Prime Minister, and leader of Opposition in the Lok Sabha, and the Chief Justice of India. "Justice Joseph and Justice Rastogi both said that there should be a separate body. Till the union comes out with an Act in this regard, it would comprise of the PM, Opposition leader and CJI. Now the Union has come out with a bill that has excluded the CJI and included a minister of the government." Justice Gupta remarked referring to recent developments. 

Decisions That Placed Restrictions On Fundamental Rights