Burrabazar Fireworks Dealers Association Vs Commissioner of police, Calcutta, AIR 1998 Cal 121

Court held that, “Art 19(1) (g) of the Constitution of India does not guarantee the fundamental right to carry on trade or business which creates pollution or which takes away that community’s safety, health and peace. A citizen or people cannot be made a captive listener to hear the tremendous sounds caused by bursting out from noisy fireworks.”

M/S Abhilash Textiles Vs The Rajkot Municipal Corp, AIR 1988 Guj 57

Hon'ble Supreme Court of India observed as under, "Is there any right to carry on business or trade in unregulated manner and cause nuisance to the public and also become a health hazard to the society at large? If no, can the petitioners claim any right to be heard before they are asked to discontinue or prevent the nuisance?....
Article 19(1)(g) of the Constitution confers right upon every citizen to practice any profession or to carry on any occupation, trade or business. But this fundamental right is subject to reasonable restrictions which may be placed in the interest of the general public as provided for in sub-clause (6) of Art. 19 itself. No one has a right to carry on business so as to cause nuisance to the society….
The petitioners cannot assert their right, much less fundamental right, to carry on business without any regard to the fundamental duty. In a complex society, in which we live today, no one can claim absolute freedom without incurring any obligation whatsoever for the general well being.”

Forum Prevention of Environment & Sound Pollution Vs UOI, AIR 2005 SC 3136

Hon'ble Supreme Court of India observed as under, "Anyone who wishes to live in peace, comfort and quiet within his house has a right to prevent the noise as pollutant reaching him. No one can claim a right to create noise even in his own premises… Any noise which has the effect of materially interfering with the ordinary comforts of life judged by the standard of a reasonable man is nuisance….
Those who make noise often take shelter behind Article 19(1)A pleading freedom of speech and right to expression. Undoubtedly, the freedom of speech and right to expression are fundamental rights but the rights are not absolute….
While one has a right to speech, others have a right to listen or decline to listen….
Civil law can be divided under two heads (i) The Law of Torts (ii) The General Civil Law. The cases regarding noise have not come before the law courts in large quantity. The reason behind this is that many people in India did not consider noise as a sort of pollution and they are not very much conscious about the evil consequences of noise pollution.”
Court issue direction for fireworks to reduce noise pollution.

State of Maharashtra Vs Himmatbhai Narbheram Rao, AIR 1970 SC 1157

Hon'ble Supreme Court of India observed as under, " “under the Constitution a proper balance is intended to be maintained between the exercise of the right conferred by Art. 19(1)(f) and (g) and the interests of a citizen in the exercise of his right to acquire, hold or dispose of his property or to carry on occupation, trade or business. In striking that balance the danger which may be inherent in permitting unfettered exercise of right in a commodity must of necessity influence the determination of the restrictions which may be placed upon the right of the citizen ‘to the commodity’.”

R.V. Bhasin Vs State of Maharashtra Bombay HC on 06.01.10

“Supreme Court dated 30/8/1999 in Shiv Kumar v. Hukum Chand & Anr. In that case, the appellant/complainant wanted the counsel appointed by him to conduct the prosecution in the Sessions Court. The public prosecutor had consented to it. The High Court rejected the prayer. After considering the relevant provisions of the Code, particularly Section 301 thereof, the Supreme Court endorsed the High Court's view after observing that the prosecution in a Sessions Case cannot be conducted by anyone other than the public prosecutor. The Supreme Court observed that if a private counsel is allowed a free hand to conduct a prosecution he would focus on bringing the case to conviction even if it is not a fit case where the accused could be convicted………The Supreme Court (in Ramji Lal Modi vs State of U.P AIR 1957 SC 620)observed that Section 295-A does not penalize any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class”
Following are the principles.banning abook u/s95 CrPC “a) The Notification must state the grounds of the Government’s opinion. (Harnam, Narayan Das, Lalai Singh Yadav)
b) A formal authoritative setting forth of the grounds is statutorily mandatory. Appendix cannot make up for grounds of opinion. (Lalai Singh Yadav AIR 1977 SC 202)
c) Mere repetition of an opinion or reproduction of the Section will not answer the requirement of a valid notification. (Narayan Das)
d) Grounds must not be stated at learned length. In certain cases a laconic statement may be enough while in others more detailed reasons may be required. Grounds may be brief but cannot be blank. (Lalai Singh Yadav)
e) Grounds of opinion must mean conclusion of facts on which the opinion is based. Grounds must necessarily be the import or the effect or the tendency of the matters contained in the offending publication either as a whole or in portions of it, as illustrated by passages which Government may choose, (Narayan Das’s case where the Supreme Court referred to the Calcutta High Court’s judgment in Arun Ranjan Ghose with approval).
f) The High Court must set aside an order of forfeiture if there are no grounds of opinion because if there are no grounds of opinion, it cannot be satisfied that the grounds given by the Government justified the order. If in such case, the High Court upholds the order, it would mean that the High Court itself made the order which the High Court cannot do. (Harnam)
g) The High Court must set aside the order of forfeiture if it is not satisfied that the grounds on which the Government formed it’s opinion justify that opinion. (Harnam)
h) The validity of the order of forfeiture would depend on the merits of the grounds. It is not the duty of the High Court to find out for itself whether the book contained any such matter whatsoever. The High Court cannot make a roving enquiry beyond the grounds set forth in the order. (Harnam)
i) The State cannot extract stray sentences of portions of the book and come to a finding that the said book as a whole ought to be forfeited. (Baragur (2007) 5 SCC 11)
j) The matter charged as being within the mischief of the relevant sections of the IPC must be read as a whole. One cannot rely on stray, isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning. (Gopal Godse, Special Bench, Bombay High Court.)
k) Section 295-A of the IPC does not penalize any and every act of insult to or attempt to insult the religion or religious beliefs of a class of citizens. There must be a malicious or deliberate intention to outrage the religious feelings of a class of citizens. (Ramji Modi, Balwant Singh, Manzar Khan, Bhagwati Charan Sharma Nagpur High Court, Gopal Godse Special Bench, Bombay High Court.)
l) Intention of the author has to be gathered from the language, contents and import of the offending material. (Baragur, Gopal Godse Special Bench, Bombay High Court).
m) If the purpose of writing the book was a historical research based on a number of reference books and other material, it would be difficult for the State to contend that simple narration of history would promote violence, enmity or hatred. (Varsha Publications, Special Bench, Bombay High Court.)
n) If the allegations made in the offending article is based on folklore, tradition or history something in extenuation could perhaps be said for the author. (Baragur)
o) If the writing is calculated to promote feelings of enmity or hatred, it is no defence to a charge under Section 153-A of the IPC that the writing contains a truthful account of past events or is otherwise supported by good authority. Adherence to the strict path of history is not by itself a complete defence to a charge under Section 153-A. (Gopal Godse, Special Bench, Bombay High Court).
p) Section 95(1) of the Code requires that the ingredients of the offences should appear to the Government to be present. Section 95 does not require that it should be proved to the satisfaction of the Government that all requirements of punishing sections including mens rea were fully established. (Baragur, Nandkishore, Special Bench of Patna High Court).
q) The onus to dislodge the prima facie opinion of the Government that the offending publication comes within the relevant offence including its requirement of intent is on the applicant and such intention has to be gathered from the language, contents and import thereof. (Nandkishore, Special Bench of Patna High Court, approved in Baragur.)
r) It is not necessary to prove that as a result of the objectionable matter enmity or hatred was in fact caused between the different classes. It is enough to show that the language of the writing is of a nature calculated to promote feelings of enmity or hatred. (Gopal Godse, Special Bench, Bombay High Court.).
s) For judging what are the natural or probable consequences of the writing, it is permissible to take into consideration the class of readers for whom the book is primarily meant as also the state of feelings between the different classes or communities at the relevant time. (Gopal Godse, Special Bench, Bombay High Court.)
t) Whether the objectionable matter is meant for limited circulation, whether it is to cater to ignorant, illiterate inflammable mob or educated people would be a relevant consideration. (Bhagwati Charan Sharma – Nagpur High Court).
u) The effect of the words must be judged from the standards of reasonable strongminded, firm and courageous men and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. (Ramesh v. Union of India, AIR 88 SC 775, Manzar Khan, Bhagwati Charan Sharma – Nagpur High Court.)”

Naz Foundation vs Government of NCT of Delhi and Others, decided by Delhi High Court on 02.07.09

JUSTICE S.MURALIDHAR, AJIT PRAKASH SHAH, CHIEF JUSTICE:
The marginal note refers to the acts proscribed as “unnatural offences”. This expression, however, is not used in the text of Section 377 IPC. The expression “carnal intercourse” is used in Section 377 IPC as distinct from the expression “sexual intercourse”, which appears in Sections 375 and 497 IPC. According to the Concise Oxford Dictionary (ninth edition, 1995), the term “carnal” means “of the body or flesh; worldly” and “sensual, sexual”. Consent is no defence to an offence under Section 377 IPC and no distinction regarding age is made in the section.
The English law was reformed in Britain by the Sexual Offences Act, 1967, which de-criminalised homosexuality and acts of sodomy between consenting adults (above age of 21) pursuant to the report of Wolfenden Committee.
Union of India argues that Indian society is yet to demonstrate readiness or willingness to show greater tolerance to practices of homosexuality.
From the above summary of submissions of the Union of India through the MHA it is clear that the thrust of the resistance to the claim in the petition is founded on the argument of public morality.
Learned ASG submits that there is no fundamental right to engage in the same sex activities. In our country, homosexuality is abhorrent and can be criminalised by imposing proportional limits on the citizens’ right to privacy and equality. Learned ASG submits that right to privacy is not absolute and can be restricted for compelling state interest.
According to him, in the western societies the morality standards are not as high as in India. Learned ASG further submits that Section 377 IPC is not discriminatory as it is gender neutral.
Dignity as observed by L’Heureux-Dube, J is a difficult concept to capture in precise terms [Egan v. Canada, (1995) 29 CRR (2nd) 79 at 106]. At its least, it is clear that the constitutional protection of dignity requires us to acknowledge the value and worth of all individuals as members of our society. It recognises a person as a free being who develops his or her body and mind as he or she sees fit.
The expression “dignity of the individual” finds specific mention in the Preamble to the Constitution of India. V.R. Krishna Iyer, J. observed that the guarantee of human dignity forms part of our constitutional culture [Prem Shankar Shukla v. Delhi Admn.].
Article 12 of the Universal Declaration of Human Rights (1948) refers to privacy and it states: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
In India, our Constitution does not contain a specific provision as to privacy but the right to privacy has, as we shall presently show, been spelt out by our Supreme Court from the provisions of Article 19(1) (a) dealing with freedom of speech and expression, Article 19(1) (d) dealing with right to freedom of movement and from Article 21, which deals with right to life and liberty.
Olmstead v. United States, 277 US 438 (1928), was a case of wire-tapping or electronic surveillance and where there was no actual physical invasion, the majority held that the action was not subject to Fourth Amendment restrictions. But, in his dissent, Justice Brandeis, stated that the amendment protected the right to privacy which meant “the right to be let alone”, and its purpose was “to secure conditions favourable to the pursuit of happiness”, while recognising “the significance of man’s spiritual nature, of his feelings and intellect: the right sought “to protect Americans in their beliefs, their thoughts, their emotions and their sensations”
Kharak Singh v. The State of U.P., (1964) 1 SCR 332, the U.P. Regulations regarding domiciliary visits were in question and the majority referred to Munn v. Illinois, 94 US 113 (1877), and held that though our Constitution did not refer to the right to privacy expressly, still it can be traced from the right to “life” in Article 21. The majority did not go into the question whether these visits violated the “right to privacy”. But, Subba Rao, J. while concurring that the fundamental right to privacy was part of the right to liberty in Article 21, part of the right to freedom of speech and expression in Article 19(1) (a), and also of the right of movement in Article 19(1) (d), held that the Regulations permitting surveillance violated the fundamental right to privacy.
The right to privacy thus has been held to protect a “private space in which man may become and remain himself”. The ability to do so is exercised in accordance with individual autonomy.
Bowers v. Hardwick (supra) Blackmun, J. cited the following passage from Paris Adult Theatre I v. Slaton, [413 US 49 (1973), page 63] : “Only the most willful blindness could obscure the fact that sexual intimacy is a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality. The way in which we give expression to our sexuality is at the core of this area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy.”
The sphere of privacy allows persons to develop human relations without interference from the outside community or from the State. The exercise of autonomy enables an individual to attain fulfillment, grow in self-esteem, build relationships of his or her choice and fulfill all legitimate goals that he or she may set. In the Indian Constitution, the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21. Section 377 IPC denies a person’s dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution.
These fundamental rights had their roots deep in the struggle for independence and, as pointed out by Granville Austin in “The Indian Constitution – Cornerstone of A Nation”, “they were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India”.
However persons, having carnal intercourse with any animal, were to be left to their just deserts. Though the Law Commission report would not expressly say so, it is implicit in the suggested amendments that elements of “will” and “consent” will become relevant to determine if the sexual contact (homosexual for the purpose at hand) constitute an offence or not.
In fact, the admitted case of Union of India that Section 377 IPC has generally been used in cases of sexual abuse or child abuse, and conversely that it has hardly ever been used in cases of consenting adults, shows that criminalisation of adult same-sex conduct does not serve any public interest. The compelling state interest rather demands that public health measures are strengthened by de-criminalisation of such activity, so that they can be identified and better focused upon.
The decisions lay down that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of permissible classification, two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group; and (ii) that the differentia must have a rational relation to the objective sought to be achieved by the statute in question.
The other important facet of Article 14 which was stressed in Maneka Gandhi is that it eschews arbitrariness in any form.
It is clear that Section 377 IPC, whatever its present pragmatic application, was not enacted keeping in mind instances of child sexual abuse or to fill the lacuna in a rape law. It was based on a conception of sexual morality specific to Victorian era drawing on notions of carnality and sinfulness. In any way, the legislative object of protecting women and children has no bearing in regard to consensual sexual acts between adults in private.
The Court further held that legislations with pronounced “protective discrimination” aims, such as Section 30, potentially serve as double edged swords. Strict scrutiny should be employed while assessing the implications of this variety of legislations. Legislation should not be only assessed on its proposed aims but rather on the implications and the effects.
We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.