Whether the High Court decision is based on the decision of the Supreme
Court which was not considered at the time of argument?
The Law Declared by the supreme court shall be binding on all courts within the
territory of India. The most object of the doctrine of precedent is that the law
of the land should be clear, certain and consistent in order that the courts
shall follow it with no hesitation.
By virtue of article 13 of the Constitution, all laws in force within the
territory of India immediately before the commencement of this Constitution, in
thus far as they're inconsistent with the provisions of this Part, shall, to the
extent of such inconsistency, be void.
The State shall not make any law which takes away or abridges the rights
conferred by this part and any law made in contravention of this clause shall,
to the extent of the extent of the contravention, be void.
In this article, unless the context otherwise requires law includes any
Ordinance, order, bye law, rule, regulation, notification, custom or usages
having within the territory of India the force of law; laws good includes laws
passed or made by Legislature or other competent authority within the territory
of India before the commencement of this Constitution and not previously
repealed, notwithstanding that any such law or any part thereof might not be
then operating either the least bit or particularly areas.
Nothing during this article shall apply to any amendment of this Constitution
made under article 368.
According to Indian article 141 of the constitution, the law stated by the
Supreme Court shall be binding on all the courts within the territory of India.
The final principles laid down by the Supreme Court are relevant to every
individual including those that aren't party to an order.
In India, the Supreme Court isn't only a constitution court but is at the
highest of the hierarchy of our scheme. Under article 141, its decision is that
the law of the land. Its major role is to interpret constitutional provisions
and to market governance by rule of law.
The Supreme Court of India is on the highest of the hierarchy of courts, so it's
imperative for its decisions to possess a finality attached to them. This
finality can only come from the binding nature of those decisions so within the
end it is marked to the litigation process. Hence, the binding nature of the
Supreme Court of India decisions is a crucial aspect of the justice delivery
system within the country.
In the decision of Indra Sarma v VKV Sarma
, handed down a pair of days
ago, the Supreme Court correctly holds that the term relationship within the
nature of marriage
within the violence Act covers live-in relationships. This
judgment is additionally extremely interesting, however, due to its possible
impact on the position of homosexual relationships.
In this case, the Court was
faced with a complaint of violence, and had to see whether a lady in an
exceedingly live-in relationship could claim under the Act. so as to try to do
so, she would need to show that her relationship was covered under one in every
of the enumerated grounds under the definitional Section 2(f) which the Court
read as exhaustive.
The sole possible ground was relationship within the nature
S. 2(f), stated fully, reads:
relationship between two persons who live or have, at any point of your time,
lived together in a very shared household, once they are related by
consanguinity, marriage, or through a relationship within the nature of
marriage, adoption or are relations habitation as a joint family
specifically uses the term two persons; the Court nonetheless chose to look at
that the clause refers to
a relationship between two persons (of the other
sex). (Paragraph 33), on the bottom that S. 2(a) which defines an aggrieved
person, i.e. an individual entitled to assert the remedies under the force Act
as a woman. Consequently, the Court observes that:
hence, the Act doesn't
recognize the link of same sex (gay or lesbian) and, hence, any act, omission,
commission or conduct of any of the parties, wouldn't result in violence,
entitling any relief under the DV Act. (Paragraph 38)
With respect, the primary part of this sentence isn't logically before the
second. it's not the case that the DV Act doesn't recognize same-sex
relationships; it's only the case that the Act is aimed toward combatting a
selected social problem violence against women within the domestic sphere,
particularly at the hands of men so, it restricts its scope of operation, that
is, the scope of its remedies to women who are during a domestic relationship
with men. that's why S. 2(a) defines the aggrieved person as a girl, and S. 2(q)
defines the respondent as a male
But if the aggrieved person can only be a
girl, and also the respondent can only be a person, then the legislature could
very easily have defined domestic relationship as a relationship between a
man and a woman. the very fact that it chose to not do so, and used the
gender-neutral term two persons'', implies that the term relationship within
the nature of marriage itself might well have a scope of operation that goes
beyond the DV Act.
Or, in other words, the Court is true to carry that offenses
within the nature of force between same-sex couples aren't covered by the DV Act
but the legal reason for that's to be found within the definitions of
aggrieved person and respondent
, and not within the definition of
domestic relationship and relationship within the nature of marriage
Court expressly holds that marriage may be a civil right
(Paragraph 23), as
against a non secular sacrament, and charged with social (as hostile religious)
significance. this suggests that the matter of according religious rights
primacy over Part III fundamental rights per State of Bombay v Narasu Appa Mali
isn't at issue; consequently, if certain civil rights are being accorded to
some, but being denied to others on bases that the Constitution rejects, then
there's a case to be made for unconstitutional discrimination. Now recall that
in Naz Foundation, the tribunal held that the word sex
in Article 15
extends to sexual orientation
and thus, discrimination on the premise of
sexual orientation amounts to a piece 15 violation.
Until now, it could are
argued and has been argued in jurisdictions just like the us that by
excluding homosexual couples from the ambit of marriage, one isn't
discriminating against them a homosexual union is solely the historical
meaning indeed, the common law meaning of what it's to be married.
regardless of the validity of this argument, during this case, the Court holds
that the term relationship within the nature of marriage is one that has the inherent or essential characteristics of a marriage
(paragraph 35), which it
later defines as having variety of possible components like a shared household,
pooling of monetary arrangements, a relationship, public socialization,
intention and conduct, and so on.
Notice that none of those requirements (except the one amongst children) are
inherently associated with the normal definition of marriage being between a
person and a girl. Thus, the essential point is this: by excluding homosexual
couples from the ambit of the term relationship
within the nature of marriage
, and denying to them the varied benefits that
flow therefrom and are accorded to homosexual couples of precisely the same
sort, there's a transparent case of discrimination on the premise of sexual
And insofar because the various (civil) rights and benefits flowing out of a
are denied to homosexual couples, there's a case of
discrimination on the premise of sexual orientation. The technical labels here
aren't important what's important is that whether you wish to call it a
wedding or a relationship within the nature of marriage, if the identical bundle
of rights and obligations that are extended to heterosexual couples are denied
to homosexual couples (and this is often not a piece of writing 14 case, where
the govt can claim intelligible differentia and rational nexus, perhaps to
protect the institution of marriage), then there's a commentary 15 violation.
Same-sex unions are recognized in some form or the opposite in many countries
now, including lest there be claims of Eurocentrism Argentina, Brazil and
South Africa. In any event, following Naz, it's the subsequent debate that must
be had in India over how, precisely, our Constitution is to meet its promise of
extending equal concern and relevance to all its citizens.
The Supreme Court of India is at the top authority for providing justice in
India hence, it implies that every decision which has been finalized or
judgement has been passed is to be followed under those guidelines by every
people of the Nation. If any case is under process or the judgement has to be
given no other courts can say in that matter due to Contempt of court and legal
action will be taken. So, in India there is a Blinding Nature of the Supreme
Court over the other courts.
Award Winning Article Is Written By: Mr.Yash Vikram Singh
Authentication No: AP110884619701-18-0421