Vijay@Vijendra vs The State of Karnataka. Criminal Appeal 200141/2016 decided on 20 November 2020. Author, Justice P. Krishna Bhat.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348940/1/CRLA200141-16-20-11-2020.pdf
Relevant paragraphs: 18. Accused, as the evidence shows, has betrayed utter disdain to the inherent right of C.W.1 as a human; to her individual autonomy to choose who to love and to her right to choose a husband and even, to defer to the wishes of her parents in matters of significance in her life, which in itself is a conscious “choice”. This in essence is a fundamental right guaranteed to every individual under Articles 14, 19 (1) (a) and 21 of Constitution of India. To permit the accused to take a defence of ‘grave and sudden provocation’ in the facts and circumstances of this case apart from being “obnoxious”, (Pawan Kumar, at para-47) [(2017) 7 SCC 780] will result in negation of the fundamental rights of the deceased under Articles 14, 19 (1) (a) and 21 of the Constitution of India and, as such, opposed to public policy.
19.While on this, we must hasten to add that we are not unmindful of the general position that fundamental rights not excluding those under Articles 14, 19(1)(a) and 21 are all guarantees against actions of State and its instrumentalities and not against criminal offences by one citizen against another. We are even more conscious of the ‘felt necessities of the time’ that wherever text does not inhibit and context demands, ordinary laws of the land should be given such construction and, scope of defences available so mapped that lofty principles enshrined under the above Articles are given full effect to and dehumanizing effect of the defences are suitably pruned without doing violence to the statute creating such defence while at the same time making it resonate with the current understanding of the concept of gender justice and dignity of the individual. ‘The Declaration of Independence’ of July 4, 1776 says in ringing tones, “……..we hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, – That whenever any Form of Government becomes destructive of these ends, it is the Right of the people to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and happiness “.
20. Life, Liberty and pursuit of Happiness is an entitlement and a right without which there cannot be a ‘right to life’ for an individual and shorn of the same, it will only be a creature existence. Thus viewed, extending the protective umbrella of ‘grave and sudden’ provocation to the accused, in the facts and circumstances of this case, will have the effect of robbing the victim of her right to express her `choice’. In other words, the defence of ‘grave and sudden’ provocation shall not avail an accused if the result of permitting such a defence is to dehumanise the person of victim, stultify her individual autonomy, agency and dignity.
Compiled by S. Basavaraj, Advocate, Daksha Legal.
Daksha Legal 