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other competent authority within the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof might not be then operating either the least bit or particularly areas.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. It’s 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 it’s 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 of marriage. S. 2(f), stated fully, reads:
domestic relationship means a 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…

The Section 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.

Furthermore, the 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 orientation.

And insofar because the various (civil) rights and benefits flowing out of a marriage 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.

Conclusion
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