Kerala High Court Archives

[Lakshadweep Regulations] Ker HC | Draft stipulations are premature, cannot be assailed through PIL

Kerala High Court: T.R. Ravi, J., held that draft stipulation could not be accepted for the challenge as the same is premature to be assailed by the Public Interest Litigation.

The instant PIL was filed to assail a few regulatory measures initiated by the State of Kerala concerning Lakshadweep Islands. The case of petitioner was that the impugned regulations were motivated by ulterior motive of destroying the traditional life, culture, etc. of the inhabitants of the island. The petitioner alleged that the steps initiated by the State through impugned regulations were illegal and violative of Articles 15, 16, 19 and 21 of the Constitution.

Noticeably, the petitioner never had any direct participation or concern with the people, affairs, or administration of Lakshadweep Island, and had made sweeping allegations that the he was interested about the issues faced by the public at large and was a social worker. The Bench noticed that at the present stage the impugned notifications were at either preliminary stage or drafts were kept in public domain inviting suggestion, views etc., from Islanders. The writ prayer referred to Exts.P3 to P7. Ext.P3 was a Circular issued by the Assistant Director (Disaster Management) stipulating the modalities to be followed by persons or travelers interested in visiting Lakshadweep island. The apprehension expressed by the petitioner on Ext.P3 was held to be misconceived and unavailable as the challenge to that circular had been rejected in by an earlier order.

Ext.P4 was a notification issued eliciting public opinion on the draft regulation appended to the said Notification; the petitioner had assailed the same contending that if the Draft Rules were implemented, nobody could challenge it later, as it gave immense power to the State. The Bench opined that,

“Examination of legality of draft regulation which is in the active consideration of respondent is completely premature.”

Regarding the Exts.P5 and P6 which were related to discontinuation of temporary staff engaged by the administration in a few facilities, the Bench stated that,

“Championing cause concerning service matters by way of PIL is impermissible and also unavailable on the ground that the petitioner lacked the locus to question the legality of Exts.P5 and P6.”

Noticing that the Ext.P7 stipulated the procedure to be followed for auctioning livestock in Lakshadweep islands, the Bench held that the petitioner in the name of PIL could not expand the consideration with inchoate knowledge about the inhabitants of the island and the island. In other words, it was stated that Ext.P8 was also a draft and it could not be treated as regulation that had come into force upon receiving the assent of the President. Hence, every prayer made by the petitioner was unavailable or premature and entertaining the prayers by way of PIL was not warranted as the impugned exhibits were at the stage of confabulation.

Moreover, holding that though the prayers was one for mandamus/certiorari still it had the effect of acting as writ of prohibition against the State from discharging the function or the duty conferred on them by the Constitution. The draft stipulation, therefore, could not be accepted for challenge in the PIL. Accordingly, holding that the petitioner had not satisfied his standing vis-à-vis the affairs of Lakshadweep island to entertain the PIL and that the same was premature. Hence, the same was dismissed.[Sajesh N. T. v. State of Kerala, WP(C) NO. 11321 of 2021, decided on 15-06-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the Petitioner: Adv. N.Sasidharan Unnithan

For the Respondent: T.P.Sajan

Case Briefs High Courts

Ker HC | A monosyllabic “yes” does not amount to plea of guilty; HC issues detailed guidelines to be followed before convicting on plea of guilt

Kerala High Court: T.R.Ravi, J., held that a monosyllabic “yes” cannot amount to pleading guilty.

The petitioner was convicted by the Magistrate for allegedly obstructing the procession taken out from the Thrikkulam Government High School in connection with the school admission festival and assaulted some of the volunteers. The FIR was registered for offences under Sections 143, 147, 353 read with 149 of the IPC and Section 35 (sic) of the Kerala Prevention of Disturbances of Public Meetings Act, 1961. All accused were convicted by the Trial Court on their pleading guilty of the offences.

The judgments were challenged mainly on the ground that the procedure adopted by the Trial Court, the petitioner contended that the conviction of an accused based on his plea of guilty results in that person being convicted and punished without trial and hence the Magistrates are bound to ensure that the plea is voluntary, clear and unambiguous and is put forth after understanding the implications of such admission. The petitioner contended that he was not made aware of the consequences of his pleading guilty and the unknowing act had resulted in the petitioner being denied appointment, in spite of the inclusion of his name in the ranked list of Constable (Telecommunication).

On scrutiny of the diary extract and records received from the lower court, the Bench noticed that the accused were asked whether they had committed the offences and they answered in the negative. After a few adjournments, the cases were taken up and the question whether the accused had committed the offences was repeated, this time the accused answered ‘yes’. This answer was treated as pleading of guilt and the accused were convicted. According to Sections 240 and 241 of CrPC, conviction of an accused based on the plea of guilty is not an empty formality. The procedure prescribed has to be followed strictly, since acceptance of the plea would result in an accused being convicted without trial. The Bench clarified,

“The words ‘plea and guilty, the term ‘pleading guilty’ should be require a positive and informed act of admitting all the elements of the offence/s. Mere lip service or a monosyllabic ‘yes’, in reply to a pointed question by the court, cannot, under any circumstance, be equated with, or accepted as, pleading of guilt by the accused.”

Accordingly, the Bench issued the following guidelines to be followed before acting upon the pleading of guilt by an accused;

“The Magistrate should frame the charge, specifying the offences alleged against the accused;
The charge should be read over and explained to the accused;
The accused should be asked whether he pleads guilty of the offence/s with which he is charged;
The accused should plead guilty after understanding the seriousness of the allegations and the implications of pleading guilty. The plea should be voluntary and expressed in clear and unambiguous terms.
The Magistrate should record the accused’s plea of guilty in the words of the accused, to the extent possible.
The Magistrate, after considering all relevant factors should exercise his discretion and decide whether to accept the plea of guilty or not
If the plea is accepted, the accused can be convicted and suitable punishment imposed.”

Hence, the plea of guilty should not only be recorded, but such recording should, to the extent possible, be in the words spoken by the accused.

Whether the accused can plead guilty at a later stage, i.e., after framing of charges?

In CrPC, the opportunity to plead guilty is provided only under Sections 229, 241 and 252, for Sessions, Warrant and Summons cases respectively. This opportunity arises immediately after the charge/accusation is framed/stated. In Santosh v State of Kerala, 2003 SCC OnLine Ker 93, a Single Judge had opined that the plea of guilt can be advanced by an accused at any stage of the trial after framing charge. Relevant portion of the Judgment reads as under;

“No doubt, there is no specific provision in the Cr.P.C. enabling the court to permit an accused to withdraw his claim to be tried and convict him on a plea of guilty subsequently…there is also no prohibition in the Cr.P.C. to record the plea of guilty in the course of trial and convict the accused on his subsequent admission of guilt. The object of trial is to investigate the offence and to find out the truth. When the guilt is admitted by the accused and the admission is found to be voluntary, there is no reason why the court should not allow him to withdraw his claim to be tried and plead guilty…There is no reason to restrict the applicability of S. 229 of the Cr.P.C. to a particular date or occasion but the purport of section is obvious that plea of guilt can be advanced by an accused at any stage of the trial after framing charge. If an accused is allowed to withdraw his claim to be tried and plead guilty, an earlier termination of the trial can be secured and wastage of the precious time of the court can be avoided.”

In the light of the above, the Bench held that the petitioner having pleaded not guilty at the first instance, recording of the monosyllabic answer ‘yes’ in the questionnaire prepared at the stage of framing charge, could not, under any circumstance, be termed as pleading of guilt by the petitioner, based on which the Court could have convicted him. As such, the judgments convicting the petitioner were liable to be set aside. Accordingly, the petition was allowed and the conviction order was set aside.[Raseen Babu K.M. v. State of Kerala, CRL.REV.PET No. 227 of 2021, decided on 08-06-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the Revisionist: Adv. D.Anil Kumar

For the State: PP T.R. Renjith and Sr. PP. C.S. Hrithwik

Case Briefs High Courts

Ker HC | Footpaths are not for campaigns and protests; HC asks State to explain steps taken to avoid encroachment of pedestrians’ right to footpath

Kerala High Court: While addressing the issue of encroachments of footpaths for the purpose of holding assemblies and protests, the Division Bench of Anil K. Narendran and Ziyad Rahman A.A., JJ., stated that,

“Footpaths are not intended for the purpose of holding campaigns, demonstrations, etc., by political parties and other organizations, by causing any obstruction whatsoever to free movement of pedestrians. No political party or organization can be permitted to encroach footpath or right of way of public roads…forcing pedestrians including those with disabilities and reduced mobility to walk in unsafe circumstances.”

The instant petition had been filed by the Trivandrum Chamber of Commerce and Industry seeking a writ of mandamus commanding the respondents as well as law enforcement agencies including Police to formulate and issue guidelines for earmarking certain public areas in State of Kerala for the purpose of holding mass assemblies, including protests, campaigns, demonstrations, etc. The petitioners had contended that holding assemblies staged around Government Secretariat and Raj Bhavan, including the adjoining footpaths is illegal and unconstitutional.

Noticeably, various organisations and political parties were staging protests, demonstrations, etc., in public places, including footpaths/ pavements, causing serious inconvenience to general public and also commercial and other establishments set up at such places. The campaigns or protests on footpaths, which initially started on a temporary basis, had attained the nature of permanence along with sheds and others which provide shelter to the campaigners/ protesters and cause hindrance to the general public using footpath for the purpose for which it was constructed.

In C.S.S. Motor Service v. Madras State, 1952 SCC OnLine Mad 142 a Division Bench of the Madras High Court had held that all public streets and roads vest in the State, but that the State holds them as trustee on behalf of the public. The members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways. In Sodan Singh v. Delhi Municipal Committee, (1989) 4 SCC 155, a Constitution Bench of the Supreme Court held that the primary object of building roads is undoubtedly to facilitate people to travel from one point to another.

The Bench opined that to what would constitute a public nuisance and what could be included in the legitimate user can be ascertained only by taking into account all the relevant circumstances including the size of the road, the amount of traffic and the nature of the additional use one wants to make of the public streets. Noticeably, the Indian Roads Congress had formulated Guidelines for Pedestrian Facilities, as per Para. 4.2 of the said guideline, efforts should be made to create such conditions that pedestrians are not forced to walk in unsafe circumstances and that motorists respect the position of pedestrians. The Guidelines for Pedestrian Facilities had the approval of the Ministry of Road Transport and Highways (MoRTH). Hence, every local authority in the State is bound to provide pedestrian facilities on public roads in conformity with these guidelines.

In Sivaprasad v. State of Kerala and others 2020 (6) KHC 373, this Court held that, The main reason for laying out pavements is to ensure that the pedestrians are able to go about their daily affairs with reasonable measure of safety and security. That facility, which has matured into a right of the pedestrians, cannot be set at naught by allowing encroachments to be made on the pavements. The Court had further held that,

“Nobody has got a right to erect any structures on roads. The State is not an exception. The National Highways and State Highways constructed by acquiring private property and by using public funds, can be used only for the travelling needs of public. It cannot be converted for other collateral purposes like erection of statues and memorials.”

Section 4 of Kerala Public Ways (Restriction of Assemblies and Processions) Act, 2011 deals with prohibition of obstruction on public ways and as per sub-section (1) of Section 4, no person shall cause any obstruction by conducting any business or meeting or assembly or procession or demonstration on any public way or part thereof. As per sub-section (2) of Section 4, no meeting or assembly shall be conducted so as to obstruct any portion of the carriage way or footpath. As per subsection (3) of Section 4, no demonstration or procession shall be conducted in such a manner that the entire carriage way or free flow of traffic is fully obstructed.

Hence, the Bench held that the footpaths are not intended for the purpose of holding campaigns, demonstrations, etc., by political parties and other organizations, by causing any obstruction whatsoever to free movement of pedestrians. No political party or organization can be permitted to encroach footpath or right of way of public roads, in connection with any such protest, demonstrations, etc., by erecting any temporary structures on the right of way or on the pedestrian facilities, forcing pedestrians including those with disabilities and reduced mobility to walk in unsafe circumstances. Accordingly, the state was directed to explain the steps taken to ensure strict enforcement of the orders of the Supreme Court and the relevant statutory provisions, including the Guidelines for Pedestrian Facilities formulated by the Indian Roads Congress in order to prevent encroachment of any nature, in any form, either temporary or permanent, on the right of way or pedestrian facilities on public roads. [Trivandrum Chamber of Commerce and Industry V. State of Kerala, W.P.(C) No.11886 of 2021, Order dated 08-06-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Case Briefs High Courts

Rejection of candidature for belated submission of OBC-NCL certificate illegal; Kerala HC directs to reconsider candidature of woman who failed to submit certificate on time due to pregnancy

Kerala High Court: The Division Bench of Alexander Thomas and K. Babu, JJ., held that rejection of the candidature of the respondent from the OBC category on the mere ground of belated submission of the relevant OBC-NCL certificate was violative of Article 14 and 16 of the Constitution. The Bench stated,

“The respondent has clearly stated in letter dated 27-07-2018 that she was under rest and was unable to travel as advised by her gynecologist due to difficulties during pregnancy period and hence was unable to produce OBC-NCL certificate valid for the period mentioned in the notification along with the application and she undertook that she can produce OBC-NCL certificate before the recruitment cell at any time.”

Facts of the Case

The present appeal had been filed against the order of the Single Judge, wherein, Single Judge, after appreciating the rival contentions on the basis of the materials placed before the Court, has rejected the contentions of the appellants and had interfered with the impugned decision to reject the candidature of the respondent in the OBC-NCL category and directed the appellants to accept the respondent’s certificate and treat her as one eligible, who belongs to OBC-NCL category and to include her in select list for the OBC-NCL reservation within two weeks.

The respondent belonged to OBC, non-creamy layer category. She had applied for the post of Technical Assistant, Chemistry in response to the notification issued by the appellant-Indian Institute Of Science Education and Research inviting applications for appointment for which one vacancy each was notified in general category, OBC and Scheduled Caste category. Later on, her representation was cancelled owing to delay in submission of non-creamy layer certificate.

According to the appellants, as per condition No.10 in the selection notification, a candidate who had not produced a non-creamy layer certificate for the relevant financial year would not be eligible to be considered under the OBC category. The appellants further contended that, during verification of documents, since the respondent had not submitted the valid OBC -NCL certificate along with her application, she was short listed under general category. As the respondent failed to produce the required OBC – NCL certificate, she was placed at second position in the waiting list of UR (unreserved) category in select list. Since, the respondent was unsuccessful in producing the required OBC-NCL certificate, for the current financial year, along with the application and that she failed to state any reason for not submitting the same for the relevant period during the submission of the online application she was declared unsuccessful.

Analysis and Findings of the Court

The crucial question before the Court was whether the selection notification dated had insisted that the candidates concerned should necessarily produce OBC-NCL certificate at the time of submission of the application. Clause 26 of the selection notification clearly provided for four steps under the caption, “How to apply”. Step 4 mentioned there was very crucial and relevant for the present case and it read as follows: “Step 4 – take a print out of the completed application form, attach proof of payment and forward the same along with self attested copies of the certificates for educational qualifications and experience, as claimed in the application, by registered post/ speed post only in a sealed cover superscribing ‘application for the post of ……….., postcode ……’ on or before 30.11.2017 to the Registrar.”

Hence, after reading Clause 26 along with step 4 therein read with Clause 11, the Bench opined that that what was directed to be attached along with the hard copy of the application were certificates to prove educational qualification, experience and community. Therefore, OBC-NCL certificate was not included. Therefore, there was no obligation that copy of the OBC-NCL certificate for the current year should compulsorily be produced along with the hard copy of the application on or before the last date of 30-11-2017.

Clause 10 clearly stipulated that the norms issued by the Government of India on 17-08-2017 to relax the earlier rigorous conditions would be applicable in the instant case. According to said norms and as per the order of the Supreme Court in S.L.P.(C) No.3116/2017 in Union of India v. Abdul Rasheed, the Staff Selection Commission considered the matter regarding relaxation of the time limit in producing OBC certificates within the cut off period and that based on the approval of the Union Government in the Department of Personnel & Training as well as the Department of Legal Affairs, it is ordered that with effect from 23-01-2017, (date of the abovesaid S.L.P. Order), insistence will not be made for production of the requisite OBC certificate before the last date of receipt of the applications, etc. It was further mentioned that,

“Where document verification has already been completed and the final result was declared after 23.1.2017 or is yet to be declared, the candidate may produce prima facie proof of being OBC, if already not produced, to enable the Commission for consideration/ processing of their claim under OBC category. Further that such candidature of OBC candidates will remain provisional and subject to verification.”

Accordingly, the candidates were required to make the claim for reservation benefits like OBC-NCL in the application form which was to be submitted before the prescribed last date and those candidates who had not produced the reservation eligibility certificates like OBC-NCL certificate would have to produce it before the selection authorities within a reasonable time. Hence, the OBC-NCL certificate need not be produced along with the application before the last date and the candidate would have to later produce the said certificate before the selection authority within a reasonable time.

Therefore, not granting reasonable time to a candidate for production of OBC-NCL certificate would amount to violation of Clause 26 and Clause 10 read with Government norm any interpretation to the contrary would defeat the principles of affirmative action, equity and justice/reasonableness and fairness which are intrinsic in Articles 14 and 16 of the Constitution.

Rejecting the contention of the appellants that government norm and decisions in Abdul Rasheed’s case would apply only for grant of more time for production of OBC certificate and the same will not govern the issue of grant of more time for submission of NCL certificate, the Bench clarified,

“Only if the candidate concerned can establish that he/she belongs to OBC, can she/he establish the claim for NCL. So if more time is to be granted for submission of OBC certificate, then necessarily the same will apply for submission of NCL certificate as well. Moreover, this contention is highly hyper-technical, as the OBC-NCL certificate issued by the competent authority is a comprehensive one.”

In the instant case, the application submitted by the respondent was before the prescribed last date, she had also produced certificate dated 12-04-2016 certifying her OBC status and incidentally it was to be noted that that certificate also certified her NCL eligibility. The issue was only in regard to the variation of income for the year 2017-18. In view of the abovesaid aspects, the Bench held that, the considered findings made by the learned Single Judge in the impugned judgment in the in favour of the respondent interdicting with the impugned decision of the appellants that led to the rejection of her candidature for the post of Technical Assistant (Chemistry) reserved for OBC-NCL, could not be said to be illegal, wrong or perverse. Therefore, the Bench remarked,

“Rejection of the candidature of the respondent from the OBC category on the mere ground of belated submission of the relevant OBC-NCL certificate will only result in virtually throwing out a meritorious candidate with extensive research experience, in the facts and circumstances of this case. This will only lead to a situation where the rights and opportunities guaranteed to the respondent under Articles 14 and 16 of the Constitution of India will be flagrantly violated.”

[Indian Institute of Science Education and Research v. Smitha V S, WA.No.2029 of 2018, decided on 07-04-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the Appellants: Sr. Adv. Sumathy Dandapani and Adv. Millu Dandapani

For the Respondent: Adv. S.P.Aravindakshan Pillay, Adv. N.Santha, Adv. Peter Jose Christo, Adv. S.A.Anand and Adv. L.Annapoorna

Case Briefs High Courts

Ker HC | Malevolent intention is not essential to cruelty; HC grants divorce on the ground of cruelty for making false allegation of impotency

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., held that false allegation of impotency amounts to mental cruelty, hence, is a valid ground for dissolution of marriage.

The appellant and the respondent were husband and wife, both doctors by profession. Both of them had initiated legal proceedings against each other – the husband, for divorce and the wife, for restitution of conjugal rights. After trial, the Court below, by the impugned common order, dismissed the original petition filed by the appellant and allowed the original petition by the respondent granting her a decree for restitution of conjugal rights.

The appellant had sought for decree of nullity on the ground that his consent to the marriage was obtained by fraud perpetrated by the respondent in suppressing material facts regarding her mental condition. He had also prayed that the marriage be dissolved on the grounds of incurable unsound mind and cruelty on the part of the respondent.

Whether suppression of any information amount to fraud?

Though it was alleged by the appellant, and practically admitted by the respondent, that two psychiatrists had treated the respondent, no steps were taken by the appellant to examine them or to produce the treatment records. The essential ingredient to be proved for securing an order of dissolution of marriage under Section 10 (1) (iii) of the Act, 1869 is that the respondent had been incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition; but there was no convincing evidence on record to prove that the respondent had been suffering from any mental disease of incurable nature. Therefore, opining that the proviso to Section 19 of the Act gets attracted only when the consent was obtained through force or by playing fraud, the Bench explained,

“The word ‘suppression’ does not occur in Section 19 of the Act. The Parliament has employed the words ‘force’ and ‘fraud’. Before a party gives consent for the marriage with the other, there is bound to be exchange of information. This Section cannot be treated as a provision placing burden upon a spouse to the marriage, to reveal the entire information about him or her to the other.”

Hence, the Bench reached to the findings that the allegation was about suppression and failure to inform a particular fact cannot be treated as fraud, unless the person failing to mention it was under legal obligation to state it. Thus, the non disclosure by the wife before marriage that she was suffering from delusion disorder was not a suppression of material fact. Hence, it could not amount to fraud in obtaining his consent for the marriage.

Cruelty

Considering the case of the appellant, the Bench opined that there was nothing to disbelieve the evidence given by the appellant that throughout the period they lived together, the respondent hs perpetrated various acts, ranging from several mental agony by behaving in an immature, irrational and bizarre manner, being drowsy, lethargic and unhygienic always, showing abnormal postures with her hands, talking uninhibitedly, often screaming that some gang was going to attack her, staring at people, having a phobia for darkness, having bad mouth odour, abdicating all shared household duties etc., making his life a living hell. The Bench stated that to constitute cruelty, the conduct complained of need not necessarily be so grave and severe so as to make cohabitation virtually unendurable or of such character as to cause danger to life, limb or health. It must be something more serious than “ordinary wear and tear of the married life”. It is sufficient if the conduct and behaviour of one spouse towards the other is of such a nature that it causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the marital tie. The Bench further stated,

“Malevolent intention is not essential to cruelty. There may be instances of cruelty by unintentional but inexcusable conduct of the party. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs; the act complained of could otherwise be regarded as cruelty.”

It had been held by the Supreme Court in Samar Ghosh (supra) that intention is not a necessary element in cruelty and that the relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill treatment.

False Allegation of Impotency

Yet another facet of mental cruelty on the part of the respondent canvassed by the appellant was the false accusation made by the respondent against the appellant about his sexual capacity, that the appellant was suffering from erectile dysfunction and was incapable of performing sexual activities. In K. Srinivas Rao v. D. A. Deepa, (2013) 5 SCC 226, it was held that making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings amount to causing mental cruelty to the other spouse.

The respondent had imputed that the appellant was suffering from erectile dysfunction, and thus, he was incapable of performing sexual activities, but at the same breath, she had admitted that she had a satisfactory sexual relationship with the appellant after July, 2010. Therefore, opining that the respondent had miserably failed to substantiate the imputation made by her, the Bench said remarked,

“Casting aspersions of impotency or erectile dysfunction by one spouse against other in the counter statement in a matrimonial proceeding will undoubtedly constitute cruelty.”

Hence, it was found that the respondent making unnecessary accusations against the appellant amounted to mental Cruelty. Accordingly, the Bench held that the appellant had made out a case for granting a decree for dissolution of marriage on the ground of cruelty under Section 10(1)(x) of the Act. The prayer for restitution of conjugal rights by the respondent was rejected, the impugned orders were partly set aside and the marriage between the appellant and the respondent was dissolved.[xx v. xx, 2021 SCC OnLine Ker 2327 , decided on 31-05-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the Appellant: Adv. P.Gopakumaran Nair, Adv. B.Bindu and Adv. N.K.Subramanian

For the Respondent: Adv. K.N.Abhilash and Adv. Sunil Nair Palakkat

Case Briefs High Courts

[Lakshadweep Regulations] Ker HC | Government should be eager to consider public suggestion; HC grants liberty to raise objections/suggestions even after expiry of outer time limit

Kerala High Court: The Division Bench comprising of A. Muhamed Mustaque and Kauser Edappagath, JJ., addressed the issue relating to controversial regulations of the U.T. of Lakshadweep. The Bench granted the petitioner liberty to raise suggestions, objections etc. even after expiry of outer time limit of 21 days stipulated for public opinion.

In the instant petition, the petitioner, a native of Kavaratti in Lakshadweep Islands had approached the Court requesting for issuance of writ of mandamus directing Administer of Lakshadweep to issue a fresh public notice giving 30 days’ time to the public to submit their comments, suggestions etc. with respect to controversial draft Regulations. The petitioner contended that according to decision taken by the Committee of Secretaries held on 10-01-2014 on Pre-legislative Consultation Policy there should be a minimum period of 30 days for public to raise their views/objections for any draft legislation. Noticeably, the Lakshadweep Town and Country Planning Regulation, 2021 which was published on 28-04-2021, regarding which it had been stipulated by the authorities that members of public can submit the comments, suggestions etc. within twenty one days (on or before 19-05-2021) through registered post or email. The petitioner argued that on account of Covid restrictions in the island, many like him could not raise their suggestions/objections within that time. The petitioner also argued that the stipulation of outer time limit of 21 days was against the decision taken by the Committee of Secretaries on 10-01-2014.

The ASGI submitted that stipulation of 30 days is a matter relating to administrative expediency to be followed and that could not be construed as a right conferred upon a citizen as a matter of right to seek 30 days’ outer limit for raising such objection. Any administrative instruction of such nature therefore could not be relied upon to seek a writ of mandamus. Similarly, the counsel for Lakshadweep Administration argued that the administration had received 593 comments, suggestions, objections etc. and the same had been forwarded to the Ministry of Home Affairs.

Opining that it was for the Ministry to consider the suggestions, objections etc. as raised against the draft Regulations, the Bench stated it would not be proper for the Court to direct the Central Government or the Administrator to accept any suggestion or comments. However, the Bench added,

“In any system of governance, the Government would be eager to consider any such suggestion which may ultimately enable the Government to formulate their own decisions while granting approval of draft Regulations. Therefore, it is for the Central Government to consider whether any suggestions, comments or objections to be made by the petitioner or any person have to be accepted or not after the expiry of the time in the notification.”

In the above backdrop, the Bench directed that if the petitioner forwards his suggestions/comments to the Administrator within two weeks, the same shall be forwarded to the Central Government and it is for the Central Government to consider whether such objection, comments etc. is to be accepted or not.[Mohammed Sadique v. U. T. of Lakshadweep, 2021 SCC OnLine Ker 2352, decided on 31-05-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the Petitioner: Adv. Joby Cyriac

For Union of India: ASGI. K.M.Nataraj

For U.T. of Lakshadweep: Adv. S.Manu

Case Briefs High Courts

Ker HC | “Protestors shall not be deprived of access to justice”; HC directs release of detained Lakshadweep protestors

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., ordered the release of persons detained for protesting against the controversial Lakshadweep regulation. The Bench stated,

“The most important concern for us is the liberty of the persons who are in custody. They shall not be deprived of the means of access to justice.”

The instant petition was filed espousing the cause of persons detained in connection with a crime registered in Lakshadweep Island. According to the petitioners, though the case registered against them was bailable, they had been remanded by the Executive Magistrate for no reasons. On the contrary, the counsel for the Lakshadweep Island submitted that the SHO and the Executive Magistrate were prepared to release the protestors on bail but they had refused to get released on bail. However, the above submission had been refuted by the counsel for the petitioner, stating that no such attempt had been made by the SHO and the Executive Magistrate.

Opining that the most important concern before the Court was the liberty of the persons who were in custody, the Bench said the protestors should not be deprived of the means of access to justice. In the above backdrop, the Bench directed the CJM, Amini, to take up the case of protestors who were in custody pursuant to registration of the case by SHO of Kilthan Island by 3pm on the day of passing of order itself. The Bench further said that the CJM need not to ask for the physical production of the persons in custody and the same should be held through video conference. The CJM was also directed to release the detainees on execution of self. Additionally, the Executive Magistrate was directed to file a report detailing the persons who had been kept in custody pursuant to registration of the case and date from which they were in custody and the offences under the penal enactments. The Medical Officer of Kilthan Island was directed to examine all persons in regard to their health conditions.[Sayed Mohammed Koya v. U.T. of Lakshadweep, 2021 SCC OnLine Ker 2355, decided on 01-06-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the Petitioner: Adv. R.Rohith

Case Briefs High Courts

Ker HC | Can State sub-classify minority communities for extending scholarship benefits? HC holds scheme of granting 80% minority scholarship to Muslims cannot legally sustain

Kerala High Court: The Division Bench comprising of S.Manikumar, CJ., and Shaji P. Chaly, J., addressed the issue of disparity shown by the State regarding grant of scholarship to the minority community in the State. The Bench held that,

“The orders passed by the State Government viz., Exhibits P2, P3 and P4 show that clear discrimination is shown by favoring a particular minority community by providing scholarships in the ratio of 80:20 i.e., 80% to Muslims and 20% to the Latin Catholic Christians and Converted Christians, which is not the letter and spirit of the provisions of the Act, 1992 and the Act, 2014. Moreover, the mandates contained under Articles 14 and 15 of the Constitution of India are clearly violated by the State Government in the matter of the award of scholarships.”

Factual Fulcrum of the Case

The Union Government under the Prime Minister’s New 15 point programmes for the welfare of minorities had announced scholarship schemes for students from minority communities. On the basis of the scheme formulated, Scholarships were to be given on merit cum means basis. The petitioner, a member of Roman Catholic community, one of the minority communities, contended before the Court that while implementing various schemes in the State of Kerala there was marked discrimination favouring one minority against the other without any rationale. Therefore, under the cover of minority rights, the State government was supporting a particular section.

The predominant contention advanced by the petitioner was that, contrary to the said scheme, without any rationale, the State Government issued Exhibit P4 order bearing dated 08-05-2015 that reservation among the Muslims and other minority communities will be in the ratio of 80:20 i.e., 80% to Muslim Community and 20% to Latin Christians and Converted Christians. It was further stated that 30% of the seats shall be reserved for girls. Therefore, the petitioner contended that the fixation of ratio was arbitrary, unjust and illegal and accordingly violative of Articles 14 and 15 of the Constitution of India. Therefore, according to the petitioner, it is clear

Disparity among Equals

In Exhibit P2, the General Administration Department (Minority Cell) stated that on the basis of the study conducted by Paloly Muhammed Kutty Committee regarding the implementation of Justice Rajindar Sachar Commission report in Kerala, a minority cell was formed and started functioning in the Secretariat. Exhibit P3 order specified that on the basis of the report of the committee specified above, Government had decided that the Latin Catholics and Converted Christian girl students were only permitted to get 20% of the total number of scholarships/hostel stipends, which were given to Muslim girl students and further that, the number of scholarships/hostel stipends, which were given to Muslim girl students would continue as Rs.5000/- and Rs.2000/- respectively. The crucial aspect therein is that the reservation among Muslims and other minority communities was in the ratio 80:20 and 30% of seats would be reserved for girl students.

Constitutional and Statutory Mandate

Section 2(c) of the National Commission for Minorities Act, 1992 define ‘minority’ for the purposes of the Act to mean a community notified by the Central Government. It was undisputed that the Central Government had notified six religious communities viz., Muslims, Christians, Sikhs, Buddhists, Zoroastrians (Parsis) and Jains, in the gazette of India. On a reading of section 9 and section 2(c) of the Act, 1992 and Kerala State Commission for Minorities Act, 2014 along with the notification so issued, it could be clearly seen that the functions of the Commission should govern the overall development of the minority communities as such without discriminating by and between the minority communities so identified. Thus, the Bench opined,

“The National Commission and the State Commission are not entitled to segregate such backwardness among the minorities so as to protect the interests of any particular minority.”

Basically, the rights available to minority communities stem out from Article 29 of the Constitution dealing with protection of interest of minorities. A conjoint reading of Articles 29 and 30 makes it clear that while granting any aid by the State to educational institutions the State should not discriminate against any educational institution on the ground that it was under the management of a minority whether based on religion or language, which in fact clearly translate the true intention of the framers of the Constitution.

Findings of the Court

The Bench opined that was clear from the 2011 census that the total population of minority communities in Kerala was 45.27% out of which 58.67% was Muslims and 40.6% was Christians and the balance 0.73% constituted other minority communities. The Bench remarked,

“There is nothing wrong in the State Government providing facilities to weaker sections of the community, but when it comes to dealing with the notified minorities, it has to treat them equally, and it is not vested with any powers to treat them unequally, which is quite discernible from the provisions of the Constitution and the laws discussed above.”

Relying on the decision of the Supreme Court in Chinnaiah v. State of A.P., (2005)1 SCC 394, wherein the Court had considered the issue with respect to sub-classification among the Scheduled Castes and Scheduled Tribes and held that, “except for a limited power of making an exclusion or inclusion in the list by an act of Parliament, there is no provision either to sub-divide, subclassify or sub-group the castes which are found in the presidential list of Scheduled Castes”, the Bench held that,

“State is indulging in providing scholarship to the Muslim minority community at 80%, which according to us, is an unconstitutional act and unsupported by any law. Mere executive orders issued by the State Government cannot overreach the provisions of the Minority Commissions Acts, 1992 and 2014, and the imperatives contained under the provisions of the Constitution of India discussed above.”

Verdict

In the above backdrop, the Bench held that the action of the State Government in sub-classifying the minorities by providing merit-cum-means scholarship at 80% to Muslim community and 20% to the Latin Catholic Christians and Converted Christians could not be legally sustained. Hence, the impugned orders were quashed and the State Government was directed to pass requisite and appropriate orders providing merit-cum-means scholarship to the notified minority communities in accordance with the latest population census available with the State Minority Commission.[Justine Pallivathukkal v. State of Kerala, WP(C) No. 24355 of 2020, decided on 28-05-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the Petitioner: Sr. Adv. Raju Joseph, Adv. J.Julian Xavier, Adv. Firoz K.Robin, Adv. Roy Joseph, Adv. Jose. V.V., Adv. Aannies Mathew and Adv. E.Haridas

For the State of Kerala: GP K.V.Sohan, State Attorney P.Vijayakumar, ASGI Haris Beeran and Adv. O.A.Nuriya

Appointments & Transfers News

5 Additional Judges of Kerala High Court appointed as Permanent Judges

Appointment of Judges

President appoints the following 5 Additional Judges to be Permanent Judges of the Kerala High Court:

Conrad Stansilaus Dias
Pulleri Vadhyarillath Kunhikrishnan
Thirumuppath Raghavan Ravi
Bechu Kurian Thomas and
Gopinath Puzhankara

ABOUT:

Justice Conrad Stansilaus Dias, B.A.L, LL.B., was enrolled as an Advocate on 14.02.1993. He practiced before the Kerala High Court and Subordinate Courts in Civil, Constitutional, Service, Family and Arbitration law. His specialization was in Family and Arbitration law. He served as Central Government Counsel for the Ministry of Railway, Central Government Notary Public and Standing Counsel for Indian Oil Corporation. He was appointed as Additional Judge, Kerala High Court for a period of 2 years with effect from 18.11.2019. His term as an Additional Judge will expire on 17.11.2021.

Justice Pulleri Vadhyarillath Kunhikrishnan, LL.B., was enrolled as an Advocate on 17.12.1989. He practiced before the Kerala High Court in Civil, Criminal, Constitutional, Labour, Service, and Family matters. His specialization was in Criminal field. He served as Standing Counsel for Kerala State Electricity Board, State Cashew Development Corporation, Kozhikode Corporation, District Co-operative Bank, Kozhikode. He was appointed as Additional Judge, Kerala High Court for a period of 2 years with effect from 13.02.2020. His term as an Additional Judge will expire on 12.02.2022.

Justice Thirumuppath Raghavan Ravi, B.Com, LL.B., D.B.M., was enrolled as Advocate on 08.01.1989. He practiced before the Kerala High Court, Debt Recovery Tribunal, Central Administrative Tribunal (CAT) and State Administrative Tribunal in Constitutional, Administrative, Taxation, Civil, Personal, Service, Intellectual Property, Forest laws, etc. His specialization was in Administrative Law, Constitutional Law, Civil Laws, Service and Personal Laws. He served as Standing Counsel in the High Court of Kerala for State Government and various other organisations. He was appointed as Additional Judge, Kerala High Court for a period of 2 years with effect from 06.03.2020. His term as an Additional Judge will expire on 05.03.2022.

Justice Bechu Kurian Thomas, B.A.L., LL.B., was enrolled as an Advocate on 29.03.1992. He practiced before the Kerala High Court in Constitutional, Taxation, Company, Civil, Criminal, Labour laws, etc. His specialization was in Constitutional Law, Company Law, and Criminal Law. He was Standing Counsel for Kerala University from 1-7-2014 to 7-9-2015. He was appointed as Additional Judge, Kerala High Court for a period of 2 years with effect from 06.03.2020. His term as an Additional Judge will expire on 05.03.2022.

Justice Gopinath Puzhankara, LL.B., LL.M., was enrolled as Advocate on 07.01.1996. He practiced before the Kerala High Court in Constitutional, Taxation, Company laws and Service Laws. His specialization was in Constitutional, Taxation Law and Company Law. He was designated as Senior Advocate by the High Court of Kerala on 18.12.2018. He served as Central Government Standing Counsel in the High Court of Kerala from January, 2005 to September, 2008 and as Senior Standing Counsel from the Central Board of Excise & Customs (CBEC). He was appointed as Additional Judge, Kerala High Court for a period of 2 years with effect from 06.03.2020. His term as an Additional Judge will expire on 05.03.2022

Ministry of Law and Justice

[Notification dt. 25-05-2021]

Case Briefs High Courts

Ker HC | “Why spouses or relatives of each MLA are required to be present in the ceremony?”; HC allows physical Swearing-in ceremony of newly elected government with certain restriction

Kerala High Court: The Division Bench of S. Manikumar CJ., and Shaji P. Chaly, J., allowed the physical Swearing-in ceremony of newly elected government. The Bench issued detailed directions to be followed for the ceremony. The Bench remarked,

“We are unable to understand as to why the spouses or relatives of each of the MLAs are required to be present in the ceremony and when they are not, indispensable, either for the performance of the ceremony or for witnessing.”

Factual Matrix of the Case

In the instant petition, the petitioner had sought directions of the Court in the matter of Swearing-in ceremony wherein the government had invited 500 participants. The petitioner submitted that the Disaster Management Authority (DMA) had declared Triple Lockdown in four districts as COVID-19 Pandemic is uncontrolled and the condition in Kerala is worsening. The petitioner contended that one of the reasons for the spread of Corona-virus was the uncontrollable gathering during Assembly Election as several meetings were held during election without adhering to the Covid-19 protocols as directed by the Election Commission.

The pandemic has infected several crores of people across the world, taken away lakhs of lives, appeared to have sub merged in India, surged back with all vigour, intensity and velocity from April, 2021, by mutations, infected people rapidly and the Test Positivity Rate is alarming. Giving due consideration to the rise in infection, death and the measures taken for providing vaccination, shortage of vaccine, and such factors, Government had decided to impose stringent conditions and thus, resorted to Triple Lockdown in four districts including Thiruvananthapuram.

Analysis by the Court

Observing the contention made by the State Attorney, Mr. K.V.Sohan that a swearing-in ceremony is a constitutional function and, therefore, it is required to be performed in a dignified manner by inviting constitutional authorities, Government officials and others, the Bench opined that the ceremony can be conducted, in a dignified manner, even in the absence of many, who are not part and parcel of the performance but only to witness the ceremony. The Bench stated,

“Dignity will not be lost when the swearing-in ceremony is witnessed from home.”

On the contention of the State Attorney that adequate measures have been taken to prevent the spread of COVID-19 for conducting the function, in an open stadium, by maintaining social distancing, as well as checking the invitees by conducting the required RT-PCR tests, the Bench said, “if such a contention is accepted, then even marriages can be performed with the participation of 500 people with RT-PCR test conducted 48 hours before solemnisation of the marriage in any big Marriage Hall or open place, which can accommodate people more than 500; so, the final rites and obsequies ceremonies, in the case of death.”The Bench said,

“We do not see any difference as to whether it is a Government function or family function or ceremony, in relation to death and the contentions of the learned State Attorney as regards the nature of the function or ceremony, as the case may be, cannot be countenanced in entirely.”

Opining that the restrictions should not be diluted solely for the swearing-in-ceremony, the Bench said that Government function cannot be converted into a public or political function. Noticing that spouses and relatives of MLAs were also invited, the Bench said that considering the present COVID-19 Pandemic situation, velocity and vigour of the virus, uncontrolled rise in the death, etc., such persons ought not to have been included in the list of participants.

Consequently, though the Bench refused to quash the Government order dated 17-05-2021 in its entirety and proceeded to issue following directions.

All the Covid protocols/guidelines/circulars/notifications shall to be adhered to or strictly followed while conducting the Swearing-in Ceremony.
Political parties shall take a decision as to whether all the MLAs are required to be present in the Swearing-in Ceremony.

The spouses and relatives of all the MLAs, except the designated Ministers are not required to participate in the Swearing-in Ceremony. The ceremony can be viewed from the residence of the respective MLAs.

Government officials required for the performance/ participation in the ceremony alone shall be permitted.
As the Government have not come out with the details of special invitees, the Chief Secretary, Government of Kerala shall consider whether the presence of all the special invitees, including the member of the State Committee of the political parties are required to be present, in view of the utmost adverse situations prevailing due to the pandemic.

[Chikithsaneethi v. State of Kerala, 2021 SCC OnLine Ker 2194, decided on 19-05-2021]

Kamini Sharma, Editorial Assistant has put this report together

Appearance before the Court by:

For the petitioner: Adv. Arul Muralidharan and Adv. Vineetha Vijayan

For the State: State Attorney K.V. Sohan

Case Briefs High Courts

Ker HC | Service of summons through Whatsapp; Is it valid in law? HC clarifies

Kerala High Court: V.G. Arun, J., addressed an interesting question regarding the validity of summons served through Whatsapp. The Bench stated, No doubt, the evolutionary changes in the field of communication calls for a more pragmatic approach regarding the mode and manner of service of summons, the statutory provisions do not provide for service of summons through WhatsApp.

The petitioner was aggrieved by the non-bailable warrant issued against the petitioner for non-appearance before the Court. The specific case put forth by the petitioner was that the summons, alleged to had been sent through WhatsApp to his mobile phone, had never reached him, as he had not downloaded the WhatsApp application on his phone.

Section 62 of CrPC, dealing with the mode of service of summons, prescribe the following:
“62. Summons how served.

(1) Every summons shall be served by a police officer, or subject to such rules as the State government may make in this behalf, by an officer of the Court issuing it or other public servant.
(2) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons. (3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate.”

Going by Section 65 of CrPC, if service could not be effected as provided under Section 2, the serving officer shall affix one of the duplicates of the summons to the conspicuous part of the house or homestead in which the person summoned ordinarily resides.

The Bench stated, above provisions do not provide for service of summons through WhatsApp. No doubt, the revolutionary changes in the field of communication calls for a more pragmatic approach regarding the mode and manner of service of summons. In this regard, the insertion of Section 144 has been made in the Negotiable Instruments Act for the purpose of overcoming the delay in serving summons, which provide for service of summons by speed post or by approved courier service.

In Indian Banks Assn. v. Union of India, (2014) 5 SCC 590, the Supreme Court had alerted the Magistrates about the need to adopt a pragmatic and realistic approach while issuing process and had directed to issue summons by post as well as by email.

“In the case at hand, the summon was stated to had been issued through WhatsApp, which is not an accepted mode of service. As such, the court should not have issued non-bailable warrant against the petitioner on the assumption that he had failed to appear after receiving the summons.”

In view of the above, the petitioner was permitted to move an application for bail and the magistrate was directed to consider his application deeming the petitioner to have appeared on summons. The non-bailable warrant issued against the petitioner was directed to be kept in abeyance for a period of four weeks.[Anoop Jacob v. State of Kerala, Crl.MC.No.1658 of 2021, decided on 09-04-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the Petitioner: Adv. Manoj P. Kunjachan

For the Respondent: PP T. R. Renjith

Case Briefs High Courts

Ker HC | S. 66(1)(5) of Factories Act: Protective Provision or not? Can this provision act as a hurdle in the way of a woman being considered for employment? Employment Opportunity only for Male Candidates v. Female Candidates [Detailed Report]

Kerala High Court: Anu Sivaraman, J., reiterated the provision of Section 66(1)(b) of the Factories Act, 1948 are protective in nature and further expressed that:

“…such protective provisions cannot stand in the way of a woman being considered for employment for which she is otherwise eligible.”

Factual Matrix

Petitioner who was an engineering graduate in Safety and fore Engineering was engaged with respondent 2, a Public Sector Undertaking under the State of Kerala.

It was submitted that a permanent post of Safety Officer was available in the company and a notification stating that only male candidates shall apply, or the post was published.

Challenging the above-stated provision, petitioner approached the Court on the ground that it was discriminatory and that the right of the petitioner for being considered for appointment as Safety Officer was violated due to the said provision.

Adding to the above, it was contended that any provision as contained in Section 66(1)(b) of the Factories Act to the extent it denies the right of the petitioner to participate in selection for appointment as Safety Officer is violative of the valuable rights guaranteed to the petitioner under Articles 14, 15 and 16 of the Constitution of India and it was liable to be set aside.

Issue for consideration in the present case was as follows:

Whether the provisions contained in Section 66(1)(b) of the Factories Act, 1948 would stand in the way of the 2nd respondent considering the application of the petitioner for appointment as Safety Officer?

Section 66 reads as follows:-

“66. Further restrictions on employment of women – (1) The provisions of this Chapter shall, in their application to women in factories, be supplemented by the following further restrictions, namely:-

(a) no exemption from the provisions of section 54 may be granted in respect of any woman;

(b) no woman shall be required or allowed to work in any factory except between the hours of 6 A.M. and 7 P.M.:
Provided that the State Government may, by notification in the Official Gazette, in respect of any factory or group or class or description of factories, vary the limits laid down in clause (b), but so that no such variation shall authorize the employment of any woman between the hours of 10 P.M. and 5 A.M.;

(c) there shall be no change of shifts except after a weekly holiday or any other holiday.

(2) The State Government may make rules providing for the exemption from the restrictions set out in sub-section (1), to such extent and subject to such conditions as it may prescribe, of women working in fish-curing or fish-canning factories, where the employment of women beyond the hours specified in the said restrictions is necessary to prevent damage to, or deterioration in, any raw material.

(3) The rules made under sub-section (2) shall remain in force for not more than three years at a time.”

Division Bench of this Court in Hindustan Latex Ltd. v. Maniamma, 1994 (2) KLT 111 held that the provisions of Section 66(1)(b) can only be protection against exploitation of woman workers by requiring her to work during night hours without her consent.

In the above-cited case, it was also held that:

“…in a case where the woman herself seeks a consideration of her appointment which would involve waiving of the special privilege which is being granted to her under Section 66(1)(b), the State cannot rely on the said apparently beneficial provision to deny an appointment which the petitioner would otherwise be eligible for”

In Leela v. State of Kerala [2004 (5) SLR 28], a Division Bench of this Court was considering a challenge to Section 66(1)(b) of the Factories Act. Division Bench held that Section 66(1)(b) is a beneficial provision and does not provide a bar against employment of women. It was held that the provision under challenge is a special provision that enjoys the protection of Article 15(3) and does not embody a principle of discrimination on sex but is calculated to save women from the hazards of working during night in factories.

The decision of the Andhra Pradesh High Court in K.S. Triveni v. Union of India [2002 Lab.I.C. 1714] and that the Madras High Court in Vasantha R. v. Union of India [2001-II-LLJ 843] as well as of this Court in Rajamma v. State of Kerala [1983 KLT 457] were considered and it was held that in the case on hand, there was no discrimination based on sex. The contentions were, therefore, rejected and it was held that the provision of Section 66(1)(b) embodies a special provision in favour of women and does not suffer from the vice of discrimination.

Adding to the above, it was stated that Andhra Pradesh High Court had also an occasion to consider a similar challenge and it was held that the provision could not stand in the way of a woman being employed during night hours unless there is a compulsion on the part of the employer on the woman to carry out her duties in a factory during the night time.

Bench noted the fact that the Factories Act, 1948 was enacted at a time when requiring a woman to work in an establishment of any nature, more so in a factory, during the night time could only be seen as exploitative and violative of her rights.

World has moved forward and women who were relegated to the roles of homemakers during the times when the enactment had been framed have taken up much more demanding roles in society as well as in economic spheres.

It was also observed that women have been engaged in several professions requiring round the clock labour and have proved themselves quite capable of facing the challenges of such engagement.

Supreme Court’s decision in Ministry of Defence v. Babita Puniya, (2020) 7 SCC 469, declared that an absolute bar on women seeking command appointment violates the guarantee of equality under Article 14 of the Constitution.

Coming to the present scenario, to say that a graduate engineer in safety engineering cannot be considered for the appointment because of an offending provision under Section 66(1)(b) of the Factories Act was completely untenable and unacceptable.

The above is evident from the fact that State of Kerala had approved an amendment to the Rules which permitted the engagement of women on the condition that all safety precautions and facilities for such engagement were arranged by the employer.

Division Bench of this Court has earlier in a case held that Section 66(1)(b) is only a protective provision.

Hence the above said Section cannot be an excuse for denying engagement to a woman who does not require such protection anymore.

Bench in view of the above discussion held that it is the bounden duty of respondents who are Government and Government Functionaries to take all appropriate steps to see that a woman was able to carry out the duties assigned to her at all hours, safely and conveniently.

Therefore, the embargo contained in exhibit 7 stating that “only male candidates can apply” was violative of the provisions of Articles 14, 15 and 16 of the Constitution of India. Hence it was set aside.

While concluding, Court directed 2nd respondent to consider the petitioner’s application for appointment to the post of Safety Officer.

The Petition was disposed of above terms. [Treasa Josfine v. State of Kerala, WP (C) No. 25092 of 2020 (J), decided on 09-04-2021]

Advocates before the Court:

For the petitioner: Sri P.R. Milton and Sri George Varghese (Manachirackel)

For the respondents:

R1 By Sr. Government Pleader and Sri Bijoy Chandran
R2 By Adv. Smt. Latha Anand
R3 By Sri P.Vijayakumar, ASGI

Case Briefs High Courts

Ker HC | What is admitted as a duty should not be kept at abeyance | ECI directed to conduct elections before the time for another come about

Kerala High Court: P.V. Asha, J., directed the Election Commission of India (ECI) to conduct elections, to which it is duty-bound, which is even admitted to. Further gave directions to hold elections to three Rajya Sabha seats from Kerala and complete the process at the earliest while taking expeditious steps without further delay to complete the election before another electorate comes into existence.

In the present matter, the Secretary and the member (almost on the identical issue) of the Legislative Assembly challenged the Election Commission’s decision to keep in abeyance elections to the Rajya Sabha till further orders. ECI had stated the following:

“The Commission vide Press Note No. ECI/PN/29/2021 DATED 17.03.2021 had announced the schedule of election for 03 seats to Council of States from Kerala as mentioned therein, with the notification scheduled to be issued on 24.03.2021. In the meanwhile, a reference has been received from the Ministry of Law & Justice. Pending examination of the reference, the Commission has decided to keep the aforementioned proposed notification and schedule in abeyance till further orders.”

Now the contentions put forth by the petitioner was:

That the Commission was bound to conduct the election before the expiration of the term of the three outgoing members of the Council of States otherwise there would be a shortage of three representatives for the State in the Council of States and it should be during the currency of the 14th legislative assembly. And further contended that it is the constitutional right of the members including him to use their franchise to elect a member of their choice to and the postponement would affect their right as the term of the present assembly would expire in May 2021 and apart from that he would also lose his statutory right to exercise his vote to a person of his choice. Further, the counsel appearing for the UOI contended that the reliefs sought by the petitioners to accelerate the process of election is not hit by the embargo in Article 329(b); the Commission is duty-bound to carry out its duties as envisaged in Article 324 of the Constitution of India and steps shall be taken for conducting the election before the expiration of the term of retiring members; right to vote is a constitutional right; there cannot be a deferment of election in the absence of justifiable reasons, etc.

The ECI while firmly contending their stand stated that the requirement of Section 12 of the Representation of Peoples Act was the notification of election before the occurrence of vacancies while the provision that the elections have to be completed before the vacancies is not mentioned.

After considering the facts and the array of cases referred to, while referring to Mohinder Singh v. Chief Election Commissioner (1978) 1 SCC 405 the Court was of the opinion that

“…The fact that it is upto the Commission to fix the schedule of election would not mean that the Commission can fix any date. As held in the judgment in Mohinder Gill’s case when a high functionary like. The Commissioner is vested with wide powers it is incumbent on the Commissioner to act fairly and legally as Article 324 is geared to the accomplishment of free and fair elections expeditiously. The Commission, which is fully aware of its duty conferred under Article 324 of the Constitution of India in its true spirit, has therefore to expedite the proceedings so as to see that the representation in the upper House from the State of Kerala is always in full swing and to avoid situations as pointed out by the learned Senior Counsel for the petitioners, where the nomination is made by the existing assembly and voting by another assembly. It is seen that at least after it arrived at the decision that it is its duty to see that the vacancies are filled up at the earliest, the Commission is yet to take any steps for the same…” And further that “…every Indian has a right to elect and be elected and it is a constitutional as distinguished from a common law right and is entitled to cognizance by courts, subject to statutory regulation…”.

Therefore, the Court in the matter of two writ petitions with identical issues gave directions to hold elections to three Rajya Sabha seats from Kerala and complete the process at the earliest while taking expeditious steps without further delay to complete the election before another electorate comes into existence.[Secy. v. Election Commission of India, WP(C) No.8089 and 8092 of 2021, decided on 13-04-2021]

Advocates for the Petitioner

V.Manu, Senior Government Pleader

N.N.Sugunapalan (Sr.)

P.K.Babu

S.Sujin

Advocates for the Respondent

Deepu Lal Mohan, SC, Election Commission of India

P Vijayakumar, ASG

Case Briefs High Courts

Ker HC | Packaged drinking water units not to continue without proper clearance and permits; no low-quality ice bars to be distributed: Detailed report on Unauthorised Packaged Drinking Water units operating in State

Kerala High Court: The Division Bench of S. Manikumar, CJ and Shaji P. Chaly, J., issued directions to State to ensure that unauthorized drinking water units were not functioning in the State and that the packaged drinking water units were functioning with licenses.

Factual Matrix

Petitioner claimed to be a registered society filed the petition challenging the action of the unauthorized packaged drinking water units and ice units and also to prevent companies from unauthorized distribution of polluted water and ice bars in the State of Kerala.

Petitioner contended that it was highly necessary that the unauthorized water distribution should strictly be made under the control of the Government, and the State Health authorities were responsible for curtailing such manufacturers. Adding to this, there are 106 packaged drinking water plants in Kerala and the Government is again taking steps to give licence to 20 more plants and that the majority of units are running without any valid licence from the authorities concerned; units distribute low-quality ice bars and the same are used by the wayside shopkeepers for making ‘kulukki sarbath’, which may cause serious diseases to human beings in future.

Without any Government standard mark, ice bars and water were being distributed in bottles all over Kerala and those units were gradually developing cottage industry, resulting to people getting infected by serious diseases causing threat to the health of nearby inhabitants and further creating various ecological problems. But authorities concerned were not taking any action against the exploitation of companies.

In view of the above concerns, the present petition was filed.

Special Government Pleader, Surin George Ipe filed a statement setting out the details and showing the banning of packaged drinking water units in various districts across the State of Kerala.

The statement stated that no packaged drinking water units and ice manufacturing units were functioning in the State without a valid FSSAI Licence and BIS certification and that stringent actions were initiated against the offenders.

Further, it was added that in order to ensure quality, special squads were constituted in all districts across the State, in addition to the routine inspection of Food Safety Officers. Inspections ensured that the operators were having an FSSAI licence and that BIS certification and hygienic conditions were followed for the manufacturing and distribution of packaged drinking water as provided in the 4th schedule of Food Safety Rules, 2011.

It was also stated ‘No Objection Certificate’ for drinking water bottle plants was granted in the State by the Ground Water Authority.

Analysis, Law and Decision

Bench disposed of the petition while directing respondents to ensure that unauthorized drinking water units were not functioning in the State and that the packaged drinking water units were functioning with licenses and other permits and undertaking all precautions in accordance with law to meet up with the standards prescribed under law.

State Government to ensure that low-quality ice was not distributed by any of the manufacturing units so as to affect public health.
While granting licence to any new packaged drinking water units, necessary directions shall be issued to maintain the standards prescribed under respective statutes.
The above-stated units should start functioning only after securing permits/clearances/consents from respective statutory authorities.

In view of the above petition was disposed of. [Human Rights Commission v. Kerala State Ground Water Department, WP (C) No. 12508 of 2014 (S), decided on 10-03-2021]

Advocates before the Court:

For the Petitioner:

Advocate Kum. D. Mini Rajan

For the Respondents:

R1-5 by Sri. Surin George Ipe, Sr. Government Pleader R6 by Adv. Sri Manoj Ramaswamy, SC

R10 by Adv. Sri. T.G. Rajendran

Case Briefs High Courts

Ker HC | “Their livelihood will be lost, if they fail to report back for duty”; HC directs Sessions Court to release passports of under-trial labours employed abroad

Kerala High Court: V.G. Arun, J., allowed the instant petition whereby the petitioners had sought for the issuance of directions to the Sessions Judge for the release of their passports.

The Petitioners were accused of offences punishable under Sections 341, 324 and 308 r/w 34 of Penal Code, 1860. Regarding which the trial was pending before the Assistant Sessions Court. The petitioners were granted bail on the condition they should surrender their passports before the court. Accordingly, petitioners had surrendered their passports.

The grievance of the petitioners was that they were all ordinary workmen employed abroad and unless the passports were released and the petitioners permitted to go abroad for re-joining duty, they would be put to extreme prejudice and loss. It was submitted that though, initially, the petitioners had kept away during the committal proceedings; they had surrendered at a later stage.

The Bench noticed that the Magistrate had granted bail to the petitioners after going through the wound certificate of the de facto complainant, and finding the injuries to be minor. Contrary to which, the Assistant Sessions Judge referred to the nature of the offences and the behaviour of the accused as serious to deny the relief.

On finding the observation regarding the serious nature of the offence to be contrary to the findings injury report suffered by the de facto complainant, where injuries were reported of being minor in nature. Further, observing that the petitioners had surrendered before the jurisdictional Magistrate Court during the committal proceedings and had complied with the bail conditions. That the Assistant Sessions Court was yet to frame charge and that the petitioners were prepared to comply with any condition to be imposed by the court, the Bench stated, “The petitioners are labourers and their livelihood will be lost, if they fail to report back for duty.”

In the light of the above, the Bench ordered the Assistant Sessions Court to release all the passports surrendered by the petitioners for a period of one year, subject to the following conditions:

The petitioners should execute a bond for Rs.50,000, (Rupees fifty thousand only) each with two solvent sureties.
Should submit an affidavit undertaking to appear before the Trial Court as and when directed, which should contain the petitioners’ foreign address, mobile number, email address and other contact details.
Petitioners should engage Counsel to represent them in court, during their absence.

[Rahim P. v. State of Kerala, Crl.M.C.No.1775 of 2021, decided on 29-03-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court:

For the Petitioners: Adv. Ajai Babu and Adv. Rosin Joseph

For the Respondents: Sr. .PP. C.S. Hrithwik and ASG. P.Vijayakumar

Case Briefs High Courts

Ker HC | “A teacher is not expected to file frivolous writ petition, motivated by personal animosity”; HC dismisses petition

Kerala High Court: V.G. Arun, J., dismissed the instant petition filed for seeking direction to the Police to conduct an investigation into the role of respondents 2 to 7 in the suspicious death of one Bhargavi, paternal aunt of the petitioner. The Bench stated,

“…motive behind filing the writ petition is the petitioner’s ouster from his house and vesting of the properties of his deceased aunt with respondents 2 to 5.”

The petitioner’s paternal aunt Bhargavi died on 15-11-2019. Suspecting foul play behind Bhargavi’s death, the petitioner requested the police to conduct investigation which yielded no positive result. Therefore the petitioner had approached this Court praying for a direction to the police officials to conduct investigation into the role of respondents 2 to 7 in the suspicious death of Bhargavi.

Noticeably, Bhargavi was a spinster and had assets in the form of immovable properties and cash deposits. She had executed a Will bequeathing all her properties in the petitioner’s name. However, by a subsequent will the properties were bequeathed in the name of respondents 2 to 5. By this time, there was rivalry in the family and the petitioner was driven out of the house and a partition deed was executed on 22-10-2003 between the petitioner’s father and Bhargavi.

Aggrieved by his ouster from the parental house, the petitioner filed a partition suit arraying his parents, aunt Bhargavi and siblings as defendants. Later, another will was executed by Bhargavi on 01-12-2011, bequeathing all the amounts in her bank accounts to the petitioner’s sisters. According to the petitioner, Bhargavi had executed the last two wills succumbing to the pressures exerted by his sisters and was actually contemplating the execution of a new and final Will, making the petitioner the sole legatee. While so, Bhargavi died on 15-11-2011 at 7.30 am, which according to the petitioner, was under mysterious circumstances. The petitioner alleged that the body of Bhargavi was cremated hurriedly at 12.55 pm on the same day at the Shanthikavadam Gas Crematorium so as to defeat investigation into the death.

Considering the above mentioned, the Bench was of the view that the motive behind filing the writ petition was the petitioner’s ouster from his house and vesting of the properties of his deceased aunt with respondents 2 to 5. As Bhargavi was aged 81 years, as on the date of execution of Will, she would have been 90 by the time she died. Hence, in the absence of clear and cogent evidence to the contrary, the Bench relied on the presumption that Bhargavi had died of natural causes. Since,

“Other than the allegation of Bhargavi having been cremated at the Santhikavadam Gas Crematorium which is 30 Kms from the place of demise, no other suspicious circumstances have been stated in the writ petition.”

Lastly, that petitioner claimed to be a teacher, the Bench vehemently remarked, observing that the conduct of the petitioner was, to say the least, reprehensible and a teacher is not expected to file frivolous writ petition of this nature, motivated by personal animosity.[Vivekanandan K. S. v. Circle Inspector of Police, 2021 SCC OnLine Ker 1614, decided on 30-03-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the petitioner: Adv. C. Manoj Kumar (Kakkanad) and Adv. P.T. Sebastian Tomy

For the Respondent: Adv. C. A. Anoop

Case Briefs High Courts

Ker HC | In divorce petition under S. 13(1)(iii) of HMA, can Court order a party to appear before medical board for assessment of mental condition? Court discusses

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., held that to get a decree of divorce under Section 13(1)(iii) of the Hindu Marriage Act, it is necessary for the party seeking divorce to prove that the other party’s unsoundness of mind is incurable or that the mental disorder is of such kind that the petitioner cannot be reasonably expected to live with his/her spouse.

The instant petition was filed by the wife in a marital dispute challenging the Family Court’s Order allowing the application filed by the husband to constitute a medical board and to direct the wife to appear before it for the assessment of her mental condition.

Husband had initiated the divorce proceedings before the Court under Section 13(1)(iii) of the Hindu Marriage Act on the ground of mental order. He added in his submissions that the mental condition of the wife was not normal as she was suffering from obsessive-compulsive disorder as well as a borderline personality disorder.

The husband filed a petition before the Court below to direct the wife to undergo medical examination for borderline personality disorder before a medical board to be constituted for the said purpose, but the wife objected the same.

Analysis, Law and Decision

Bench while analysing the facts and circumstances of the cases stated that the Court has the power to direct the parties to the litigation to undergo a medical test.

Further, Court referred to the Supreme Court decision in Sharda v. Dharmpal, (2003) 4 SCC 493, wherein it was held that even though the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of the country under Article 21 of the Constitution of India, a matrimonial Court has the power to order a person to undergo a medical test and such a direction need not be in violation of any right to personal liberty.

“…while exercising the power to order a medical test to be undergone by a person, the Court should exercise restraint and there must be strong prima facie case and sufficient material before the Court to pass such an order.”

In the present matter, wife’s alleged mental order is an issue to be decided.

Divorce Decree

High Court expressed that, in order to get a divorce decree under Section 13(1)(iii) of HMA, the husband must establish that unsoundness of mind of the wife is incurable or her mental disorder is of such kind and to such an extent that petitioner cannot reasonably be expected to live with her spouse.

Family Court

The Family Court has the power to direct a party to appear before a medical board to undergo a medical examination and the question of such action being violative of Article 21 of the Constitution of India would not arise.

It was noted that the husband had produced documents wherein it was stated that the wife was treated by the psychiatrist for the alleged illness. The said documents were perused by the lower court.

“The fact that the wife’s alleged mental disorder is an issue to be decided in the case itself constitutes a prima facie case.”

Medical Board’s opinion regarding the medical condition of the wife may be of utmost importance for granting or rejecting the prayer for a decree of divorce under Section 13(1)(iii) of the HMA.

Further, while concluding its decision, Bench added that the above-stated opinion is relevant under Section 45 of the Evidence Act.

When a party to a litigation alleges existence of certain facts, the Court can draw no inference of its existence unless it is proved through the manner in which the Evidence Act is envisaged.

Therefore, the Family Court’s decision was justified in its order and no interference was required.[Devika M. v. Shibin Prakash, 2021 SCC OnLine Ker 1235, decided on 10-03-2021]

Advocates before the Court:

Counsel for the petitioner Sri. T.R. Harikumar

Counsel for the respondent Sri. Sharan Shahier.

Case Briefs High Courts

Ker HC | [Manual Scavenging] HC directs State to pay Rs 10 lakh compensation to the family of a deceased manhole worker

Kerala High Court: The Division Bench comprising of S. Manikumar, CJ and Shaji P. Chaly, J., heard the instant PIL regarding demand to give adequate and sufficient compensation to the workmen, who died on 13-04-014 inside the manhole of Kerala Water Authority sewerage pipeline. It was stated that when the employees were engaged in manhole of sewerage pipelines, adequate and necessary safeguards ought to taken by the Water Authority officials, so as to avoid any accident.

The petitioner relied on the order of Supreme Court in Delhi Jal Board v. National Campaign for Dignity and Rights of Sewerage and Allied Workers, (2011) 8 SCC 568, wherein the Court had issued guidelines, instructions and orders to be adhered, while workers are entering inside the manhole of sewerage pipeline for cleaning. According to the petitioner, the presence of at least an Assistant Engineer of the Kerala Water Authorities in the workplace was mandatory.

Engaging of workmen by the principal employer, Kerala Water Authority, without providing adequate and sufficient gears and tools like oxygen masks to the workers, resulted in the death of two poor workmen inside the manhole.

The Police and Fire and Rescue Service personnel, who had reached the spot, did not have the necessary required tools, to rescue the poor workmen.

Reliance was also placed by the petitioner on Safai Karamchari Andolan v. Union of India, (2014) 11 SCC 224, wherein the Supreme Court had laid down detailed directions for the upliftment of manhole workers. The following directions were issued:

(i) The persons included in the final list of manual scavengers under Sections 11 and 12 of the 2013 Act, shall be rehabilitated as per the provisions of Part IV of the 2013 Act, in the following manner, namely:-

(a) such initial, one time, cash assistance;

(b) their children shall be entitled to scholarship

(c) allotment of a residential plot and financial assistance for house construction, or a ready-built house with financial assistance;

(d) at least one member of their family, shall be given training in livelihood skill and shall be paid a monthly stipend during such period;

(e) at least one adult member of their family, shall be given, subsidy and concessional loan for taking up an alternative occupation on sustainable basis;

(f) shall be provided such other legal and programmatic assistance, as the Central Government or State Government may notify in this behalf.

(ii) If the practice of manual scavenging has to be brought to a close and also to prevent future generations from the inhuman practice of manual scavenging, rehabilitation of manual scavengers would need to include:-

(a) Sewer deaths – entering sewer lines without safety gears should be made a crime even in emergency situations. For each such death, compensation of Rs. 10 lakhs should be given to the family of the deceased.

(b) Railways – should take time bound strategy to end manual scavenging on the tracks.

(c) Persons released from manual scavenging should not have to cross hurdles to receive what is their legitimate due under the law.

(d) Provide support for dignified livelihood to safai karamchari women in accordance with their choice of livelihood schemes.

(iii) Identify the families of all persons who have died in sewerage work since 1993 and award compensation of Rs.10 lakhs for each such death to the family members depending on them.

(iv) Rehabilitation must be based on the principles of justice and transformation.

In the light of pronouncement of the Supreme Court in Safai Karamchari Andolan case the Bench ordered the state to pay compensation of Rs 10,00,000 each, to the family members of the persons, who died in sewerage work (manholes, septic tanks). Court, within a period of two months in addition to Rs 4,00,000 which had been already paid to the wives of the deceased.[Baisil Attippety v. Kerala Water Authority, WP(C) No. 11185 of 2014, decided on 18-03-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the petitioner: Adv. K.P. Pradeep

For the respondents: Sr. Adv. P. Benjamin Paul, Sr. GP. V. Tek Chand and Sr. Adv. Millu Dandapani

Case Briefs High Courts

[Transgender in NCC] “We cannot take recourse to the outdated provisions of 1948 to deal with the realities of life in the year 2021”; Kerala HC directs NCC to consider enrolment of a trans woman in the female wing

Kerala High Court: In a historic judgment Anu Sivaraman, J., had broken the norm by allowing trans women to appear for enrolment in the National Cadet Corps female wing. The Bench remarked,

“Petitioner who has opted for the female gender and has undergone sex reassignment surgeries for aiding her self perception as a member of the said gender would definitely be entitled to enrolment in the NCC unit reckoning her as a transgender and further as a member of her self perceived gender, that is, the female gender.”

In the instant case, the petitioner, a trans women had approached the Court after being aggrieved by denial to be considered for enrolment in NCC by the respondents. The petitioner had urged the Court to declare Section 6 of the NCC Act, 1948 as illegal and ultra vires of Articles 14, 15 and 21 of the Constitution to the extent it excludes transgender community from enrolment with the NCC and to direct the respondent to amend the enrolment criteria to include Transgender community as well. Also, to direct the respondents to take necessary steps for enrolment of the petitioner in the NCC.

The petitioner was assigned male gender at the time of her birth and later on, at the age of 21, a sex re-assignment surgery was performed. It was stated that further surgery was performed on 27-05-2019 and the petitioner’s name had also been changed as Hina Haneefa. A transgender identity card was also issued to the petitioner showing her gender as female. The grievance of the petitioner was that she was declined admission to the NCC unit by an Associate NCC officer on the ground that there was no provision for enrolment of transgender students.

Reliance was placed by the petitioner on the decision of Supreme Court in National Legal Services Authority v. Union of India, (2014) 5 SCC 438, as also on the provisions of the Transgender Persons (Protection of Rights) Act, 2019 to contend that the petitioner was entitled and eligible for enrolment on the basis of the certificates produced by her. The petitioner submitted that, after the authoritative pronouncement by the Supreme Court with regard to rights of transgender persons to a life with human dignity, and that,

“The continued actions on the part of the respondents in perpetuating discrimination against persons like the petitioner only for the reason that she was born with the characteristic of a gender which did not match her self-perceived gender identity amounts to violation of the petitioner’s valuable rights guaranteed under Article 14, 15, 19 and 21 of the Constitution of India.”

Stand Taken by the State

The claims of the petitioner were vehemently opposed by respondents, it had been argued that the curriculum and training module in Armed Forces is gender-specific and also, in organizations like Armed Forces or NCC close physical contact, confined stay under field conditions, sharing of basic facilities like accommodation, toilets, bathing, sleeping facilities etc. are routine rather than exception, hence, it was argued that there is a need for gender-specific regulations.

“…hypothetically a biological male, who is either Transvestite (Cross-Dresser), Bigender, Demigender or Transsexual not undergone any medical procedure but assumes the gender identity of a female in spite of his sexual orientation as bisexual or heterosexual, is eligible to get enrolled in to a girls NCC unit. …Presence of such a person in common bathroom, sleeping area and in close contact physical training activities etc. will be a violation of privacy and dignity of a girl cadet.”

Section 6 of the NCC Act, 1948 read as:

Enrolment.-(1) Any student of the male sex of any university may offer himself for enrolment as a cadet in the Senior Division, and any student of the male sex of any school may offer himself for enrolment as a cadet in the Junior Division if he is of the prescribed age or over.

(2) Any student of the female sex of any university or school may offer herself for enrolment as a cadet in the Girls Division.”

Hence, the stand of the respondent was that there is requirement for more detailed categorization of transgender based on their biological features and sexual orientation to assign them which is the prerogative of the Central Government. The respondent also contended that primary aim of NCC is to groom the cadets for a future with the Army Forces whereas there is no provision existing for entry of transgender (Female/Male) in the Indian Armed Forces. It had been further submitted that,

“NCC Act recognizes only persons belonging to the male or female gender and since the petitioner is admittedly a transgender, she cannot be enrolled in the NCC”.

Analysis and Decision

Considering the above mentioned; the Bench opined that the right of a human being to choose sex or gender identity is integral to his or her personality and is one of the most basic aspects of self-determination, dignity and freedom. Criticizing the stand taken by the respondent the Bench remarked,

“We cannot take recourse to the outdated provisions of a 1948 enactment to deal with the realities of life in the year 2021. The situation has to be viewed in the light of the 2019 Act which recognises the right of transgender persons to a life with dignity and prohibits discrimination against them.”

Regarding the argument that the NCC Act did not recognize the third gender or that detailed guidelines were required to be drawn up for the integration of persons of the third gender into the Armed Forces or the National Cadet Corps, the Court stated the same could not be a justification for denying admission to the petitioner to the NCC unit on the basis of the Identity Card obtained by her.

“The petitioner who had opted for the female gender and had undergone sex reassignment surgeries for aiding her self perception as a member of the said gender would definitely be entitled to enrolment in the NCC unit reckoning her as a transgender and further as a member of her self perceived gender, that is, the female gender.”

Hence, it had been held that the petitioner was entitled to enrolment in the NCC senior girls’ division and the rejection of the request of the petitioner for such enrolment was completely unsustainable. Consequently, the petition was disposed of with the directions to the respondents to do the needful shall with regard to the application of the petitioner within a period of one month. Further, the state was directed to amend the enrolment criteria prescribed under Section 6 of the NCC Act, 1948 to include the transgender community and to provide guidelines for enrolling transgender persons also in the NCC.[Hina Haneefa v. State of Kerala, WP(C). No. 23404 of 2020, decided on 15-03-2021]

Kamini Sharma, Editorial Assistant reported this brief.

Appearance before the Court by:

For the Petitioner: Adv. C.R. Sudheesh, Adv. Raghul Sudheesh, Adv. J. Lakshmi, Adv. K. J. Glaxon and Adv. Sanish Sasi Raj

For the Respondents: SC. Thomas Abraham, Adv. N. S. Daya Sindhu Shree Hari and Adv. K. Arjun Venugopal

Appointments & Transfers News

SC Collegium approves elevation of Shri A. Badharudeen, Judicial Officer as Judge of Kerala High Court

Collegium Statement

Supreme Court Collegium has approved the proposal for elevation of Shri A. Badharudeen, Judicial Officer as Judge of the Kerala High Court.

Supreme Court of India

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