THE GRAY AREA OF SPLIT AND LAPSE JUDGEMENTS

ABSTRACT –

The Term ‘ SPLIT VERDICT ‘ refers to undecided cases in which dividend decisions or opinions are given by the bench of judges of even number by which case is not decided accurately. In the recent cases of the Supreme court various split decisions are given in which their opinions are not matched and cases are allocated to the chief justice of India to hear cases all over again by a larger bench of judges with an odd number of judges. Split decisions is the problem in the judiciary in recent times which is very controversial and hard to find. In the other words we can also say that Split verdicts are loopholes and drawbacks somewhere in the judiciary. ¹

This research project is about the drawbacks and loopholes in the judicial system on which the judiciary should have to pay attention and to use its power of judicial activism, judicial review and suo Motu powers . In the recent cases , Karnataka hijab ban case , marital rape case and the order of Madras High court bench challenge to the disqualification of AIADMK MLAs owing alligiance to TTV dinakaran, cours are failed to give accurate judgement.

Whereas the lapse judgements are also defined and various case laws in which judiciary is failed to give justice and in to play the major role of ‘ guardian of the democracy ‘ .

KEY WORDS – Split verdict , lapse decisions, marital rape , sodomy , preventive detention

INTRODUCTION –

Judiciary is the ‘ scrutineer ‘ and ‘ watchdog ‘ of democracy. Which settles disputes and administers justice to all citizens. Provides unity and integrity through justice. But in recent times we have seen various cases and issues where the judiciary splits and sometimes gives inappropriate relief or split decisions. ‘Split verdict ‘ is an undecided case which will have to be allocated by the chief justice and heard all over again by a larger bench with an odd number of judges. ” Simply divided decisions of the courts may be termed as split decisions.

This is the reason behind why judges usually sit in benches of odd numbers for important cases . So as to be a satisfactory and justified judgment can be granted. Many of the cases lies in the sensitive beliefs of the society, and it is challenging for the courts to decide on that such as – marital rape , religious cases and matters related to morality.

Here the meaning of ‘ lapse decision ‘ When one has made an error that they would not have ordinarily made, they have had a lapse in judgment. Sometimes the judiciary may fail to give satisfactory judgements because of various reasons such as – mistake of facts , mistake of laws , misleading evidence and false or biased reports of police and other public servants. Most of the time the Supreme court uses his power of judicial activism and judicial review or supreme court may give directions to the union for the implementation and formation of laws on the particular subject of laws. In the nirbhaya case judiciary gives direction to the union for the change in the punishment of rape by minor as this case was deemaed as the case of ‘ rearest in the rare cases ‘ . But lower courts have not this much power to review the judgment and to change the law , lower courts just decide cases on the basis of facts of law and evidence , in case of lack of evidence the victim cannot be satisfied with the adequate relief and the accused person may get a benefit from this . In the case of ‘ Aruna Ramchandra Shanbaug’ , sodomy was not being considered as a rape and offender get the minimum punishment , on the other hand victim was hospitalized and lives in the vegetative state for 42 years while her entire life was spoilt by the offender . ²There are many other similar cases in which victims cannot get adequate relief . Laws are amended as required , still there are various issues on which some laws should be amended and fair justice provided to the people ,

this laws amended and implemented on the practical basis , with the preservation of morality , religion and dignity of the people . The principle of natural justice should be followed .

RESEARCH METHODOLOGY –

Descriptive and exploratory research methods are used for this research . Facts and data of the research is collected from the various sources such as websource , AI based programs , SCC online, Manupatra , blog ipleader , academic journals, reports etc . I have taken this content from the various sites of the government and from the judgements of the courts . The research involves intense analysis of split and lapse decisions in which courts are failed to play a major and effective part . Also includes the thorough analysis of recent and some past judgements of the courts , effects of split and lapse judgements and way forward to it .

REVIEW OF LITERATURE –

Basically the research paper throws a light on the recent and some past cases in which courts are failed to play their major roles and to provide free and fair justice and their impacts on the society . Certain cases related to it are also included in it to reflect the failures and loopholes .Mukesh & Anr v. State for NCT Of Delhi & Ors. popularly known as the NIRBHAYA CASE. Due to the ‘ rarest of the rare case ‘ and the issue regarding the minor boy has been immensely inspired to discuss the major issues in the judiciary where courts have split in the research paper. I also refer some books such as M.P Jain , J.N . Pandey, bare acts – IPC,CrPC etc , The Gazette of India journal as well.

What is split judgements –

Split judgements are basically the undecided cases in which a bench of judges fails to come on one point or the same point of decision. Judges may have diverse views regarding the case . Such cases are allocated to the Chief justice and to the large bench of the judges which consists of odd numbers of judges through which decisions may be declared by majority of the judges. In simple words when one party convinces on some claims and the other party convinces on the other claims.

What happens after a split verdict?

In this situation the case is referred to the other bench of judges or third jurist . An appeal can be made in the Supreme court , but if there is any twist then the Chief justice of India will constitute a new larger bench and hear cases for appropriate directions and pass accurate judgment.

There are some cases in which the Supreme court splits to give decisions –

Issue of split verdict is not new , the Supreme court has given approximately twelve notable cases in which decisions are split.

In 2022 , another bench of 2 judges passed split decisions, in dealing with the disclosure of the identity of a child victim in a sexual offense case by a news editor.

Exceptions provided for marital rape in section 375 of the Indian penal code. A two judge bench of the Delhi High court delivered a not decided decision.

Whereas in the case of Karnataka hijab ban case there is also split decision given.

Aishat Shifa vs The State Of Karnataka on 13 October, 2022 –

In this case, there is a prescription regarding dress in the competitive exams, as light clothes with half sleeves not having big buttons etc. But the women who wear hijab and other members of the society oppose this because they believe that this prescription is a violation of their fundamental right of religion.

Two judges bench decided this case and both judges have diverse views by which decision is undecided or split. In the view of justice Sudhanshu Dhulia ” wearing hijab should be simply a matter of choice. It may not be a matter of essential religious practice , but it still is , a matter of conscience, belief and expression.”

On the other hand, the view of justice Hemant Gupta ” Secularism is applicable to all citizens ,

therefore permitting one community to wear their religious symbols would be antithesis to

secularism . “

Constitutional provisions regarding the freedom of religion –

Article 25 – ‘ Freedom of conscience and free profession , practice and propagation of religion.’

The holy Quran does not make it mandatory to wear hijab and this is only the matter of choice instead of a mandatory part of a religion, and wearing hijab has been banned only in the classroom not in the public places.

Karnataka High court banned hijab , only to ensure fairness in the conduction of examinations.

Independent Thought vs Union Of India on 11 October, 2017 & Farhan vs State & Anr on 11 May, 2022

Sexual intercourse between husband and his wife , without the consent of his wife or forcefully intercourse with him is termed as marital rape . Marital rape is mentioned in section 375 of Indian penal code , 1860 in its exception, provided that ‘ sexual intercourse or acts by a man with his own wife , the wife not being under fifteen years of age , is not rape. But with the virtue of cases , various rape cases are filled by wife against her husband. In such cases only civil remedies can be granted , there is no provision for criminal proceedings . There are two doctrines of British colonial era –

1. Hale’s doctrine

• Doctrine of coverture

In Hales doctrine ” husband can’t be guilty of rape. By their mutual matrimonial consent the wife has given up herself in this way to the husband.”

While the doctrine of coverture said that a “woman had no independent identity of her own after marriage . Her identity was merged with that of her husband and all her property was passed on to him. “

These doctrines are based on the patriarchal society and the reflection of male dominance in the society.

Issues with marital rape exception –

1. Exceptions are against and violative of basic rights, Right to liberty and life which encompasses her right to protect the physical, mental and emotional health.

• 2.     Non consensual sex seize her dignity, autonomy and bodily integrity.

• Due to social conditioning and lack of legal awareness there is a law reporting crimes , and the husband is worshiped and treated as a god in the relationship.
• Due to the lengthy process and in case of lack of proof , people try to settle it out of the courts.
• Pregnancy of married women which is result of marital rape can be treated as rape in the medical termination of pregnancy act , if answer is yes then there is a chanses that father of a child may denied to accept that child and this is also a problem for a dependent wife .

Diverse decision of court on marital rape case –

Justice Shakdher is in the favor to criminalize marital rape but while, on the other hand , Justice C. Harishankar stated that exception 2 of section 375 does not violative of constitution and the exception is based on intelligible differentia.

• A wife , who is forced to have sex with her husband on particular occasion when she does not want to, feels the same degree of outrage as a woman raped by a stranger, in my view is not only unjustified, but is ex facie unrealistic.”

SOCIETAL RAMIFICATIONS OF SPLIT VERDICT –

1. Increasing cases of split verdict may lead to delayed justice and ‘ justice delayed is justice denied.’
2. Divergent opinion of the judges and undecided cases, reduces the faith and ‘ reason to believe ‘ in the laws . By which people may settle their disputes in their own way , or out of the courts.

• It also affects the legal system and judicial powers .

• Cognitive diversity is essential for making good decisions but, it shouldn’t be too diversified so that it enables the judiciary to make accurate decisions .

LAPSE OR BIASED JUDGEMENTS –

• Critical lapse in judgment and a personal failure on any part of law or fact by which unsatisfied judgements are given or there is deficiency in the judgment on any point of law is a lapse of judgment. “

Bias means to give privilege treatment to one thing over another. In judiciary bias means , to protect one person who is unfair due to any kind of personal relation , lack of evidence or by misleading reports and evidence of police.

In case , the Sahara birla paper supreme court favors the government and declared the biased judgment , in this case allegations are against the government filed by the NGO . The court declared that due to the lack of evidence to constitute offense in question and adjudicated the matter and said that diary entries are inadmissible, instead of granting remedies . Biases can be seen in the judgment as instead of considering diary entries as an evidence court declares it inadmissible .

There is also gender bias in the courts as sometimes decisions are biased towards men or sometimes decisions are biased towards females, it depends on the circumstances. Sometimes we also see that decisions are based on the personal beliefs or personal struggle related sympathy of the judges; they cannot factor among their personal beliefs and cases. The case of Km. Kranti v. Uttarakhand Sahkari Chini Mills Sanghi LTD (2011) is a good example of gender bias.

In this case petitioner alleged that she was appointed for a temporary period of 20 days , after his father’s death . She cannot be appointed as a permanent worker as she is a woman. Petitioner alleges responded for gender bias which is a violation of article 14 .

Court gives a decision in the favor of a girl and directs the respondent to consider as a permanent worker , and within six months a certified copy of order is produced before him.

In the Ayodhya verdict (2019) we can also see the religious biases in judgment as 5 judges bench headed by justice Ranjan Gogoi gives separate land that was allocated to Uttar Pradesh Sunni Central Waqf Board and declares the judgment in the favor of Hindu trust . The court did not have any kind of evidence which proves that the mosque was built by demolishing a pre- existing Hindu religious structure.

Kadam Singh vs State Of Madhya Bharat on 16 February, 1954

In this case , the court refused to quash the decision of the election tribunal on the ground that the wife of the chairman was a member of congress party and whose candidate was defeated.

In this case, M/S Bajaj Hindustan Ltd vs Sir Shadi Lal Enterprises Ltd. & … on 29 November, 2010 court held that on the ground of policy biasness , the court did not allow it tochallenge the administrative actions.⁵

In the,Aruna Ramchandra Shanbaug vs Union Of India & Ors on 7 March, 2011 victim was a nurse in king Edward memorial hospital , in Mumbai and a ward boy named, valmiki , strangulated her neck by dog chain , so that she can’t move and attempt to rape but when he realise that miss Aruna was menstruating , sodomized her . Strangulated chains cause brain damage due to restrain in blood supply . But police reports do not fies rape case against accused as in section 375 of Indian penal code does not deal with sodomy , miss. Aruna was hospitalized for 42 years . Here accused get punishment but not for committing rape , as he brutally spoilt her whole life and such punishment was not enough for it .

” Failure is simply a few errors in judgment but it decides or may cost the entire life of the person. ” In such cases Supreme court and other authorities of the government should be co- oprate and judiciary have to take cognizance in such brutal cases . As in the case of Nirabhaya, the Supreme Court takes adequate cognizance and rely upon it by which accused get sufficient punishment and set an example for other criminals as well.

In case, State Of Maharashtra And Another vs Madhukar Narayan Mardikar on 23 October, 1990 A women named , Banubi had filed complaint against a police inspector, alleged that attemptedto rape of Banubi as she is a woman of ‘ easy virtue ‘ .

The departmental inquiry found the accused guilty of committing such an act and gave an order for removal from his job but the High court quashed the removal order by saying that it was unsafe to rely on testimony of a woman of ‘ doubtful reputation ‘ . The Honorable Supreme court set aside such judgment of the High court and held that there is sufficient evidence against the accused and observed that the women of doubtful reputation have the right of dignity and the right to be protected by the law in case her privacy and dignity are violated.

“Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. So also it is not open to any and every person to violate her person as and when he wishes.

She is entitled to protect her person if there is an attempt to violate it against her wish. She is equally entitled to the protection of law.”

WAY FORWARDS –

• Courts have to determine cases on a practical basis and allotment of a bench of judges on any trial should be given in odd numbers , earlier , so that the issue of split verdict cannot arise .

• There should be appropriate training and strict laws for the judges as well , to factoring among their personal views or sympathy and judgment.

• Judiciary is independent, but it still there is influence and force of the ruling government and other political parties on the courts by which common people cannot get adequate relief , sometimes cases filed by common men against any political leader or against any public servants, there is biased judgment or delay trials , due to this mostly people avoid to file reports .

• Strict directions should be given to the public servants to work independently and without any biases, so the belief of the people on judiciary and law remains.

• Supreme court have to enlarge the definition of rape and other such brutal offences , and there is also a need in the punishment for soch cruel offences, because, rape definition deals with only females victims , there is no provision for the harrasment or rape of LGBTQ+ community.

• In some cases , where offenses are very brutal and cruel ,In cases such the Supreme court has to use its apex power . As in the nirbhaya case the supreme court took cognizance and gave directions for the amendment in minor laws is very appreciative.

• In act of rape , in which penile vaginal is not included is not considered as a rape and deals under section 354 and section 377 of IPC , irrespective of facts and brutality of cases , as mentioned in the above cases .

CONCLUSION-

It’s time to change or update the laws in virtue of the facts of the cases and through considering all such past and recent cases. It should be understood that the conduct of the victim holds no importance in matters of pertaining rape . In heinous crimes , couts have to direct that sufficient evidence is not required for framing of charges , unless court deemed that there is no ground or absolutely absence of evidence for the purpose of trial. So that court can grant an opportunity to the prosecution to bring such evidence for the purpose of trial. Split verdict and biases in the judgment needs change and reform so that the basic features of the constitution can be protected .

RITIKA AHARI

UNIVERSITY OF FIVE YEARS LAW COLLEGE, UNIVERSITY OF RAJASTHAN

REFERENCES –

1. https://www-scobserver-in.cdn.ampproject.or g/v/s/www.scobserver.in/journal/split-verdic ts-at-the

• https://articles.manupatra.com/article-details /Case-analysis-of-Aruna-Ramchandra-Shanba

• https://www.studyiq.com%2Farticles%2Fsplit -verdict%2F

• https://indiankanoon.org/search/?formInput

=biased%20judgments