JOSEPH SHINE vs UNION OF INDIA. Supreme Court, 27-09-2018
| Judge | HON'BLE THE CHIEF JUSTICE, HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN, HON'BLE MR. JUSTICE A.M. KHANWILKAR, HON'BLE DR. JUSTICE D.Y. CHANDRACHUD, HON'BLE MS. JUSTICE INDU MALHOTRA |
| Court | Supreme Court (India) |
| Docket Number | W.P.(Crl.) No.-000194 / 2017 |
| Parties | JOSEPH SHINEUNION OF INDIA |
| Date | 27 September 2018 |
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 194 OF 2017
Joseph Shine …Petitioner(s)
VERSUS
Union of India …Respondent(s)
J U D G M E N T
Dipak Misra, CJI (For himself and A.M. Khanwilkar, J.)
The beauty of the Indian Constitution is that it includes
you and we. Such a magnificent, compassionate and
monumental document embodies emphatic inclusiveness which
has been further nurtured by judicial sensitivity when it has
developed the concept of golden triangle of fundamental rights. If
we have to apply the parameters of a fundamental right, it is an
expression of judicial sensibility which further enhances the
beauty of the Constitution as conceived of. In such a situation,
the essentiality of the rights of women gets the real requisite
space in the living room of individual dignity rather than the
Digitally signed by
CHETAN KUMAR
Date: 2018.09.27
14:10:12 IST
Reason:
Signature Not Verified
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space in an annexe to the main building. That is the
manifestation of concerned sensitivity. Individual dignity has a
sanctified realm in a civilized society. The civility of a civilization
earns warmth and respect when it respects more the
individuality of a woman. The said concept gets a further accent
when a woman is treated with the real spirit of equality with a
man. Any system treating a woman with indignity, inequity and
inequality or discrimination invites the wrath of the Constitution.
Any provision that might have, few decades back, got the stamp
of serene approval may have to meet its epitaph with the efflux of
time and growing constitutional precepts and progressive
perception. A woman cannot be asked to think as a man or as
how the society desires. Such a thought is abominable, for it
slaughters her core identity. And, it is time to say that a
husband is not the master. Equality is the governing parameter.
All historical perceptions should evaporate and their obituaries
be written. It is advisable to remember what John Stuart Mill had
observed:-
is wrong in itself, and now one of the chief
hindrances to human improvement; and that it
ought to be replaced by a system of perfect
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equality, admitting no power and privilege on
1
We are commencing with the aforesaid prefatory note as we
are adverting to the constitutional validity of Section 497 of the
Indian Penal Code (IPC) and Section 198 of the Code of Criminal
Procedure (CrPC).
2. At this juncture, it is necessary to state that though there is
necessity of certainty of law, yet with the societal changes and
more so, when the rights are expanded by the Court in respect of
certain aspects having regard to the reflective perception of the
organic and living Constitution, it is not apposite to have an
inflexible stand on the foundation that the concept of certainty of
law should be allowed to prevail and govern. The progression in
law and the perceptual shift compels the present to have a
penetrating look to the past.
3. When we say so, we may not be understood that precedents
are not to be treated as such and that in the excuse of perceptual
shift, the binding nature of precedent should not be allowed to
retain its status or allowed to be diluted. When a constitutional
court faces such a challenge, namely, to be detained by a
precedent or to grow out of the same because of the normative
1 On the Subjection of Women, Chapter 1 (John Stuart Mill, 1869)
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