Case BriefsForeign Courts

Federal Court of Australia: Stewart, J. allowed an appeal filed by a Sri Lankan rape survivor who had applied for an Australian visa, holding that the Immigration Assessment Authority (IAA) erred in rejecting the applicant’s claim that social stigma arising from her sexual assault coupled with her Tamil ethnicity could likely amount to persecution if she were to be sent back.

The appellant is a Sri Lankan citizen of Tamil ethnicity, who lodged a combined application for Safe Haven Enterprise Visas (SHEVs) in 2017 along with her husband and son. Their applications were denied on the grounds that Australia did not owe them protection obligations, and this was affirmed by the IAA. The Federal Circuit Court dismissed the appellant’s application for judicial review of the Authority’s decision.

The appellant feared returning to Sri Lanka due to her Tamil ethnicity and her imputed pro-LTTE political opinion, and apprehended a continuing risk of rape and harassment by Sri Lankan security forces, which had been ongoing since the civil war ended in 2009. She claimed that she been raped while in Sri Lanka, but had “not been able to express this to anybody, not even [her husband].”

The IAA, however, was not convinced that her fear was well-founded, having given regard to “the improved security situation in Sri Lanka, the opportune nature of the sexual assault in 2010 and the protection the appellant would receive from her family,” stating that it was not satisfied that she would face a similar harm (of sexual assault) if she were to return. It went further to state that since the knowledge of the incident was limited to a very small pool of persons, there did not exist a real chance that she would face societal discrimination.

The Court disagreed with the earlier decisions, making a reference to “country information” cited by the IAA itself, which demonstrated that there was a factual basis to the realistic possibility that Tamil rape-survivors in Sri Lanka face discrimination and social stigma. It observed that by assuming that the appellant would not suffer from discrimination because she would be discrete about her rape, the IAA impermissibly divided Tamil sexual assault-survivors in Sri Lanka into two categories- one whose assault is public, and one whose is not. This shifted the focus away from the main question as to why she felt unable to tell “anyone,” causing the Authority to fail to enter upon the inquiry as to whether the social group suffers persecution as a consequence of social stigma. Since the IAA was operating under the presumption that the rape would not be disclosed, it failed to consider what would happen to the appellant if it did.

Stewart, J. acknowledged the increased vulnerability of sexual assault survivors to various adverse health effects as a result of prolonging disclosure of sexual assault, feelings of shame and experiencing negative social reactions. Holding that the appellant could be found to be a refugee and could fulfil the criteria under Section 36(2)(a) of the Migration Act, 1958 (Cth) wherein Australia has protection obligations with respect to a non-citizen refugee, it set aside the orders of the primary judge, allowed the application for judicial review of its decision and remitted the matter to the Authority for reconsideration. [CGW18 v Minister for Home Affairs [2020] FCA 1104, decided on 03-08-2020]

Case BriefsCOVID 19Foreign Courts

Supreme Court of The United States (SCOTUS): In a 5:4 decision, the majority  comprising of John G. Roberts Jr., Chief Justice, and Stephen G. Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, Elana Kagan, JJ., denied permission to Calvary Chappel, a Nevada church, to hold services on the same terms which were allowed by the State Directive to casinos and certain other facilities. However, strong dissent was registered by the remaining Judges on the Bench – Clarence Thomas, Brett Kavanaugh, Samuel Alito, and Neil Gorsuch, JJ.
The application by the Church for injunction was denied by the Court in a single sentence:
“The application for injunctive relief presented to Justice Kagan and by her referred to the Court is denied.”
Alito, J. ( joined by Thomas and Kavanaugh, JJ. in his dissent) observed:

“Constitution guarantees the free exercise of religion.”

Constitution says nothing about the freedom to play craps or black-jack, to feed tokens into a slot machine, or to engage in any other game of chance.

The dissenting Judges were of the view that:
The State of Nevada in view of the directive has discriminated in favor of the powerful gaming industry.

Attendance at Religious Services (the State Directive)

Governor of Nevada issued a directive that severely limits attendance at religious services. 

According to the directive, it has been stated that a church, synagogue or mosque regardless of its size may not admit more than 50 persons but casinos and certain other favored facilities may admit 50% of their maximum occupancy.


Calvary Chapel Dayton

The said church wished to host worship services for about 90 congregants with all the precautions being adhered to. But hosting the said worship service would violate the Directive 21 issued by Nevada Governor.

Meanwhile, the directive caps a variety of secular gatherings at 50% of their operating capacity, meaning that they are welcome to exceed, and in some cases far exceed, the 50-person limit imposed on places of worship.

Citing the heterogenous treatment, Calvary Chapel sought injunction allowing it to conduct services in accordance with its plan stating the adherence of all the measures required in view of COVID-19 Pandemic.

Disparate Treatment

Though the relief was denied, the dissenting Judges were of the view that at the outset of an emergency, it may be appropriate for Courts to tolerate very blunt rules that imposed unprecedented restrictions on personal liberty, including the free exercise of religion. That is what has happened thus far. But State certainly has not shown that church attendance under Calvary Chapel’s plan is riskier than what goes on in casinos.

Carte Blanche

A public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists.

The dissenting Judges noted that the problem is no longer one of exigency, but one of considered yet discriminatory treatment of places of worship.

While the directive’s treatment of casinos stands out, other facilities are also given more favorable treatment than houses of worship.

“…while Calvary Chapel cannot admit more than 50 congregants even if families sit six feet apart, spectators at a bowling tournament can sit together in groups of 50 provided that each group maintains social distancing from other groups.”

The directive blatantly discriminates against houses of worship and thus warrants strict scrutiny under the Free Exercise Clause.

Observations of dissenting Judges:
Alito, J., who was joined by Thomas and Kavanaugh, JJ., placing a dissenting opinion, stated that preventing congregants from worshipping will cause irreparable harm, and the State has made no effort to show that Calvary Chapel’s plans would create a serious public health risk.

He suggested, the idea that “allowing Calvary Chapel to admit 90 worshippers presents a greater public health risk than allowing casinos to operate at 50% capacity is hard to swallow”: For casinos, operating at 50% is likely to mean thousands of people, standing close together and drinking alcohol, which requires them to take off their masks.

Gorsuch, J.,  dissenting from denial of application for injunctive relief, stated that,

“In Nevada, it seems, it is better to be in entertainment than religion.”

But the 1st Amendment prohibits such obvious discrimination against the exercise of religion.

“…there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”

Kavanaugh, J., adding to Alito, J.’s dissent, stated that Nevada’s discrimination against religious services violates the Constitution.

Risk of COVID–19 transmission is at least as high at restaurants, bars, casinos, and gyms as it is at religious services. Indeed, people congregating in restaurants, bars, casinos, and gyms often linger at least as long as they do at religious services. And given the safety measures that Calvary Chapel and other places of worship are following—including social distancing, mask wearing, and certain additional voluntary measures—it is evident that people interact with others at restaurants, bars, casinos, and gyms at least as closely as they do at religious services.[Calvary Chapel Dayton Valey v. Steve Sisolak, Governor of Nevada, 591 US __ (2020), decided on 24-7-2020]

Case BriefsHigh Courts

Kerala High Court: P. V. Kunhikrishnan, J., addressed a matter wherein a mother uploaded a video on social media wherein she was getting painted by her two minor children and the purpose to do so was to teach sex education to them. In the said matter, Court made the observation that,

“If the mother would have done the same act without uploading the video on social media, it would have been still understood and not considered an offence, which is not the case now.”

Petitioner a mother of two minor children asked them to paint her naked body above the navel. The video was recorded of the said act and uploaded on social media with the heading — “Body Art and Politics”.

Child Pornography

Cyber dome, Kochi City Police on discovering the said video submitted the report before the Inspector General of Police and Commissioner of Police, Kochi stating the said to be “Chid Pornography related crime” on social media.

The said offence was registered under Section 13, 14 an 15 of the Protection of Children from Sexual Offences Act, 2012 and under Section 67 B(d) of the Information Technology Act, 2000 alongwith the allegation of Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Battle against body discrimination

Petitioner’s submission is that she is an Activist and has been fighting her battle against body discrimination. The petitioner submitted that, it is her firm belief that, there needs to be openness so far as the discussion on body and body parts is concerned, and there is nothing to be hidden within and outside the family about the same. According to the petitioner, the children should be given sex education, and they also need to be made aware of the body and body parts as well. In which event, they would mature themselves to view the body and body parts as a different medium altogether rather than seen it as a sexual tool alone.

Petitioner added that,

“…morality of the society and public outcry cannot be a reason and logic for instituting a crime and prosecuting a person.”

A write up was also added with the said video, according to which the intention of the petitioner was clear and hence in view of the same no offence could be made out against the petitioner.

A small snapshot of the written text by the petitioner:

“In a moral fascist society that look towards the female body as mere illusions. Exposing the views which the society seek to conceal is also a political Act. In today’s society where a female is restricted or Censored from opening her mouth or utter a word with regards to Nudity or Sexuality, brave political act against it is what time demands. When Compare to Male body, Feminine body and her Nakedness has been considered as a mere 55kg of Flesh is just because of the wrong Sexual Education put forward by our society. Society has Customized the Mindset of people in such a way that while looking at a woman who wear a legging make you Sexual arousal whereas the man Stands Macho with his Chest-Hair Exposed as well as showing naked legs by folding the dhoti he wears as a statuesque, doesn’t Connect to Sexual Arousal is just because of the wrong sexual consciousness that is currently being injected by the society. Just as beauty is in the eye of the beholder, so is obscenity in the eyes of the beholder.”

Petitioner’s counsel relied on the judgments of the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra (AIR 1965 SC 881) and in Samaresh Bose v. Amal Mitra [(1985)4 SCC 289] to contend that, there is no indecency or obscenity even if the entire allegations against the petitioner are accepted.

Decision of the Bench

Court stated that according to the petitioner she was teaching sex education to her children by uploading the video. It added that if the mother was doing these activities inside the four walls of her house the situation could have been understood, as it is the freedom of every mother to teach sex education according to her will if it is not forbidden by law.

“Whether such a video can be uploaded in social media and the petitioner can escape by saying that she was trying to teach sex education to all children is the question to be decided.”

“Whether any offence is attracted in such cases, is the question.”

In accordance to Section 13 of the POCSO Act, whoever uses a child in any form of media for the purpose of sexual gratification, it is punishable under Section 14 of the Act.

Main ingredient of the above Section:

“…the child should be used in any form of medium for the purpose of sexual gratification.”

Prima facie, Court was of the opinion that the petitioner used the children for the purpose of sexual gratification because the children are represented in the video uploaded in an indecent and obscene manner because they were seen painting the naked body of their mother.

Court on watching the video states that the expression of the mother when both the children painted her breast was also important — Whether that amounts to the use of the children for the purpose of sexual gratification can be finally decided only after a custodial interrogation of the petitioner.

Bench further adds that, the Explanation to Section 13 clearly states that the expression of ‘use a child’ shall include involving the child through a medium like print, electronic, computer, or any other technology for preparation, production, offering, transmitting, publishing, facilitation and distribution of pornographic material.

In view of the above Court stated that it is not a position to say that no offence under Sections 13,14 and 15 of the POCSO Act is attracted.

Section 67B(d) of Information Technology Act, 2000

Section 67B(d) of the Information Technology Act says that whoever facilitates abusing children online shall be punished. Petitioner asked her children to paint on her naked body. Thereafter, the petitioner uploaded the video in social media, hence in view of the said, in Court’s opinion, prima facie it cannot be ruled out that no offence under Section 67B(d) of Information Technology Act, 2000 is made out.

Investigating Officer shall investigate upon such matters as stated above.

Bench in view of the above stated that,

After watching the picture painted by the children, I have no hesitation to appreciate the talents of the children. They deserve encouragement. But not in the way the petitioner encouraged them by uploading this video.

Bench on applying its judicial mind stated that it is not in a position to say that there was no obscenity in the video and added that the said observation was only for the purpose of present bail application.

While parting with the present order, Court added to its conclusion that,

The children are not born with a moral compass and it is the job of parents, especially of the mother, to build that compass for them. Be responsible enough to teach and demonstrate the values that your kids need in order to grow up as decent human beings.

“…in the initial years, what the child learns from their mother will always have a lasting impression on their mind. It is usually said that, the mother will be the window of the child to the world.”

The petitioner feels that, she should teach sex education to her children. For that purpose, she asks her children to paint on her naked body and then uploading the same in social media. I am not in a position to agree with the petitioner that she should teach sex education to her children in this manner.

In view of the above Court dismissed the bail application of the petitioner. [Fathima A.S. v. State of Kerala, 2020 SCC OnLine Ker 2827, decided on 24-07-2020]

COVID 19Hot Off The PressNews

Addressing Social Stigma Associated with COVID-19

Public health emergencies during outbreak of communicable diseases may cause fear and anxiety leading to prejudices against people and communities, social isolation and stigma. Such behavior may culminate into increased hostility, chaos and unnecessary social disruptions.

Cases have been reported of people affected with COVID-19 as well as healthcare workers, sanitary workers and police, who are in the frontline for management of the outbreak, facing discrimination on account of heightened fear and misinformation about infection.

Even those who have recovered from COVID-19 face such discrimination. Further, certain communities and areas are being labeled purely based on false reports floating in social media and elsewhere.

There is an urgent need to counter such prejudices and to rise as a community that is empowered with health literacy and responds appropriately in the face of this adversity.

In this regard, all responsible citizens are advised to understand that:

  • Although COVID-19 is a highly contagious disease which spreads fast and can infect any one of us, we can protect ourselves through social distancing, washing our hands regularly and following sneezing / coughing etiquettes.
  • Despite all precautions, if anybody catches the infection, it is not their fault. In situation of distress, the patient and the family need support and cooperation. It must be noted that the condition is curable and most people recover from it.
  • Healthcare workers including doctors, nurses, and allied & healthcare professionals are rendering their services tirelessly to provide care and medical / clinical support in this situation of crisis. Sanitary workers and police are also doing selfless service and playing critical roles in addressing the challenge of COVID-19. They all deserve our support, praise and appreciation.
  • All those directly involved in the management of COVID-19 are equipped with appropriate protective equipment to keep them safe from the infection.
  • Targeting essential services providers and their families will weaken our fight against COVID-19 and can prove grievously detrimental for the entire nation.

Link for the Advisory:

ADVISORY


Ministry of Health and Family Welfare

Case BriefsTribunals/Commissions/Regulatory Bodies

The National Human Rights Commission, NHRC, India has expressed serious concern over the rising incidents of sexual assault and, taking suo motu cognizance of media reports in this regard today, issued notices to Centre, States and UTs calling for reports on SOP to deal with such cases and use of Nirbhaya Fund.

The Commission has observed that there is a dire need for all the stakeholders to come together to work jointly to get rid of this evil.

Issuing the notices, the Commission has further observed that the largest democracy of the world, which has adopted the longest written constitution and has a rich cultural heritage of gender equality, is today being criticized for having the most unsafe environment for women. The incidents of rapes, molestation, gender-based discrimination and other such atrocities against women have, unfortunately, become routine media headlines.

The Commission has said that these incidents indeed involve violations of the human rights of the victims. It is well awake to the seriousness of the issue. Being the apex body for the protection and promotion of human rights at the national level, it considers its intervention into the matter necessary to understand as to where the state agencies and other stakeholders are lacking on their part and what can immediately be done.

There have been constitutional and statutory provisions to ensure that the women are not subjected to any kind of discrimination and harassment but there is an alarming trend indicating that things are getting worse amounting to a violation of right to life, liberty, dignity and equality of women across the country.

Recently, a number of such cases have been reported by the media wherein, the women have been subjected to sexual abuse, utmost cruelty and inhuman treatment by the perpetrators showing grave disrespect towards law. There have been instances where the incidents have been reportedly, occurred due to gross negligence by the administration and the law enforcing public agencies.

In Telangana, a 26-year-old veterinarian was reportedly, brutally gang-raped and killed by four accused persons. The culprits not only outraged the dignity of the victim but also killed her and burnt her body. As per media reports, the brother of the victim had approached the Shamshabad police station at around 11.00 PM reporting that his sister is unreachable for the last two hours but his worries were shrugged off by the police personnel and after occurrence of the incident, the FIR was also registered after delay. Though the accused have been arrested but had the timely action been taken by the police, the gruesome incident could, perhaps, be stopped. In another incident, a 25-year-old law student was also reportedly gang-raped by a group of armed men, in Ranchi, Jharkhand.

In another media report, carried today on 02.12.2019, a 6-year-old girl was and strangled with her school belt in Tonk district of Rajasthan on 01.12.2019. The victim was reportedly missing since the previous day. The police have not made any arrest in this case. There have been number of such cases occurred across the country during the recent past. All these incidents have indicate that making stringent laws and funds for the victims alone cannot change the scenario unless the police officers are specially trained and their attitude towards women’s issues also changes.

There seems to be a lack of “Standard Operating Procedure” (SOP) to deal with such kind of incidents and panic situations. It is alleged that whenever anyone goes to a police station for help after disappearance a major or minor female member, the answer of the police officials generally remains that she might have gone with someone. This humiliating and stereotype mindset is needed to be changed. There is need to effectively address the core issue as this serious challenge has not only created an atmosphere of fear and uncertainty in our society but has also badly tarnishing the image of our country.

Through media reports, the Commission has also come to know that the amount made available under the “Nirbhaya Fund” has been reduced and also not being appropriately utilized by the state governments. A news report, carried today on 2.12.2019 reveaLS that since the year 2014, the UT of Chandigarh has been given a sum of rupees 7.46 crores under Nirbhaya Fund but the administration has spent only 2.60 crore out of it. Mere announcements of schemes, making of laws and formation of funds are not going to serve the purpose unless these are properly implemented.

The Commission, knowing that the subject is being looked into by various fora, has issued notices to the Chief Secretaries of all the State and UTs calling for a report within 6 weeks about the status of Nirbhaya Fund in their states including the details about availability of the fund and the money spent, during last 3 years.

The Commission has also issued notices to the Directors General of Police of all the states and UTs calling for their response within 6 weeks about the Standard Operating Procedure and the best practices adopted by them to deal with the matters relating to sexual abuse and atrocities against women including the details of the action taken against the police officers/officials found insensitive and guilty of negligence towards issues related to women.

The Commission has also considered it necessary to call for a detailed from the Secretary, Union Ministry of Women and Child Development, giving details about the schemes/guidelines initiated by the union government and status of their implementation, including Nirbhaya Fund, by the States/UTs. The response is expected within 6 weeks.

Case BriefsHigh Courts

Punjab and Haryana High Court: A Division Bench of Rajiv Sharma and Harinder Singh Sindhu, JJ. dismissed the writ petition on the ground being devoid of merit and in light of the set principle of law. 

The brief facts of the case were that the respondents were appointed as Assistant Research officers in the office of Director Welfare of Scheduled Castes and Backward Classes Department Haryana. The pay scale was fixed which was admissible at that time in ESA department to Assistant Research Officer. The representation was made by assistant research officer of ESA department which was accepted and thus the payment was revised. The respondents also made representation seeking parity of pay scales of the Assistant Research Officer serving in ESA Department. The representation was rejected by the competent authority. 

After submission of the facts, it was found that the state has maintained the parity of pay scale of Assistant Research Officer working in the office of Director, Welfare of Scheduled Castes and Backward Classes Department Haryana. The parity was disturbed only when the representation made by the Assistant Research Officer of ESA Department was allowed.

The counter filed by the appellant to the writ petition submitted that the quality and quantity of work of the Assistant Research Officer is substantially different in both the departments.

The court thus opined that it is settled law that it is not open to discriminate between the incumbents of the two posts for the grant of pay scale at the time of subsequent revision of pay scales once the State Government had already decided to equate the pay scale of a certain post. Thus the appeal was dismissed. [State of Haryana v. Mange Ram, 2019 SCC OnLine P&H 1411, decided on 31-07-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Arun Monga J., allowed the application for the payment of the pay and allowances when petitioner was working on ad hoc basis.

A writ in the nature of mandamus was filed directing the respondent to pay along with other allowances and other service benefits equal/admissible to other employees regularly employed as Hindi Teachers.

The briefs facts of the case were that the petitioner was appointed on a temporary basis as the Hindi teacher and her duties and responsibilities were same as that of the other teacher appointed on regular basis. However, on completion of session, the services of the petitioner were terminated. The vacancy was again advertised and thus the petitioner joined the service without the issuance of the appointment letter and was continuing till the filing of the present writ petition.

R.L. Sharma, counsel for the petitioner submits that the policy of the respondents was against the principle of ‘equal pay for equal work’ as upheld by Courts in various judgments. She stated that having been given the same duties and responsibilities as the other Hindi Teacher, any discrimination with regard to her pay is in violation of Article 14 and 16 of the Constitution of India. Thus as the petitioner was serving the respondent-school since 1989 and was entitled to all the benefits being given to the other teachers. Reliance was placed on the case of Rattan Lal v. State of Haryana, (1985) 4 SCC 43, wherein it has been held that hire and fire policy being adopted in case of ad-hoc teachers is in violation of Articles 14 and 16 of the Constitution of India.

Counsel for the respondent submits that the school was a grant-in-aid minority institution and there was only one sanctioned post of Hindi teacher. It was conceded that the petitioner had been working in the respondent-school for the past decade albeit on a temporary basis. She was never appointed as Hindi teacher and was given various classes as and when the need arose. Hence, it was stated that she cannot claim parity with Hindi teacher working on a sanctioned post. It was also submitted that the terms of service of the petitioner were clear and specific and that the claim of the petitioner on par with the other teachers of the schools was wrong and cannot be allowed.

The Court opined that the prayer of the petitioner to the extent of being paid her salary and allowances and other benefits for the period of vacations/ weekends, as admissible to the other teachers employed in the school is fair and reasonable. It was further opined that respondent had exploited the vulnerability by throughout indulging in adhocism to deny the petitioner her legitimate dues on the ostensible ground of being a minority institute and the post of Hindi Teacher being a non-aided one against which the petitioner services were availed. Thus it was held that as per the principles of equal pay for equal work, the petitioner is entitled for regular scale as pay of Hindi Teacher as is being granted to another Hindi Teacher by the respondents besides other service benefits thereof and thus directed the respondent to calculate all the pay and allowances along with the arrears of salary for weekends and during the summer vacations.[Swaranjit Kaur v. Sri Guru Gobind Singh Senior Secondary School, Chandigarh; 2019 SCC OnLine P&H 1373; decided on 01-08-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: The Division Bench comprising of Harinder Singh Sidhu & Arun Monga, JJ. dismissed the writ petition on the ground that there was no legal infirmity in the action of the State of Punjab to adopt the wider definition of the NRI in the domain of policymaking.

A writ petition was made against Clause 17 of the Notification whereby, definition and scope of Non-Resident Indian (NRI) have been restricted to include only an NRI and/or children of NRI.

The facts of the case were that the petitioner took the National Eligibility cum Entrance Test (for short ‘NEET’) conducted for admission to MBBS/BDS in medical colleges situated all over India including the State of Punjab. The petitioner qualified the cut off marks prescribed in the examination and was eligible to apply for admission in the medical colleges. The petitioner was primarily aggrieved by the action of the State in excluding the first degree relations of NRI and wards thereof from the realm of the definition of ‘NRI’.

Pankaj Bansal, Counsel for the petitioner submits that by restricting the Category I to mean ‘an NRI and/or children of NRI’ results in hostile discrimination towards the students in the State of Punjab. NRI reservation was provided in all the medical colleges of India wherein a wider meaning has been given to word ‘NRI’ by including the first degree relations of NRI and wards of NRI within the meaning of word ‘NRI’. Learned counsel for the petitioner has also emphatically argued that restriction on the scope of the word ‘NRI’ has no reasonable nexus with the objectives sought to be achieved. He submits that if the scope of the definition of NRI is widened then the wider pool of talent would be available and the same will thus advance the requisite merit. The petitioner put reliance on the case of  P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537, wherein the Supreme Court has discussed the definition of NRI.

Rashmi Attri and M.S. Longia, Counsels for the respondents opposed the impugned notification on the ground that there are quite a large number of NRIs and in its wisdom, the State Government had rightly restricted the scope of the definition of NRI to mean either ‘an NRI or children of the NRI’. Enlarging the scope of the same to first degree relatives and/ or the wards of the NRI would open flood gates for the applicants to seek the benefit of NRI quota.

High Court thus opined that purpose of narrowing down the definition of ‘NRI’ vide clause 17, does not miss the very ratio laid down in Inamdar’s case, inasmuch as, it has been clearly laid down by the Apex Court that under the garb of NRI quota less meritorious students who can afford to spend more money get admission even though neither the student is an NRI nor his/ her parents are NRIs.

Thus, the Court was of the opinion that the purpose of restricting the definition is to give weightage only to the genuine cases where the children of those parents who have migrated to other countries to get the benefit of education in their native country. Court further added that “we also do not find any merit in the argument that the narrowing of the scope of the definition of ‘NRI’ by the State is hostile discrimination qua the students of Punjab. It is open for the State Government to make any policy with regard to the residents of the State and no interference is warranted by this Court in the domain of policymaking. It is up to the State to widen or narrow the scope of the definition of ‘NRI’ and such exercise of power would not amount to any discrimination.” Thus the petition was dismissed.[Asmita Kaur v. State of Punjab, 2019 SCC OnLine P&H 937, decided on 26-06-2019]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of L.T.B. Dehideniya, S. Thurairaja and E.A.G.R. Amarasekara, JJ. contemplated a matter of an Application under Article 17 and 126 of the Constitution of Sri Lanka, where the petitioner argued for his Fundamental Rights which were violated by the State.

Minimal facts relevant for the proper appreciation are that the petitioner felt discriminated for the appointment of Assistant Superintendent of Police on the basis of his marital status under Article 12(1). He applied for the post of A.S.P. and succeeded in the written exam as well as the interview. Subsequently, before the final interview, he solemnized his marriage. Before the final appointment was given, the Petitioner had contracted his marriage. When he submitted his marriage certificate, authorities had disqualified for selection.

The petitioner had submitted two important matters to be adjudicated, first that whether such rejection on the basis of marital status is unconstitutional and in violation of inter-alia the equality which is guaranteed, second that In any event, whether there was a prohibition at all, for married persons to be denied the appointment. He relied on the International Covenant for Civil and Political Rights (ICCPR), Constitution and General Marriages Ordinance which protects such right to get married. Reference to U.S.A and Nigeria was placed upon by the petitioner to which the Supreme Court stated that, “Here, we basically followed the discipline in the military services from British with more specialization in domestic values. Hence, the order of discipline in uniformed services cannot be easily compared with other jurisdictions”.

The Attorney General for Sri Lanka stated that the classification was based on rational and disciplinary matters of uniformed services, it was for the better training of the officers. The Respondents submitted that, the Petitioner had applied on an advertisement published in Gazette according to the said Gazette; the Open Competitive Examination for the Selections of Assistant Superintendent of Police was called under several categories. Among many, one of the requirements was to be unmarried. Except for the Ordinary Police Service Category at other positions are more technical and specialized in a certain field of work. Further, it was observed that, those are open to female candidates too. The reason quoted for such condition was, ‘Ordinary Police Service category’ was in charge of the law and order, which obviously needed strenuous physical and weapon training, hence the appointing authorities had specified that, these candidates should be unmarried with less or no family commitment for the purpose of training. Further they relied on Air India v. Nergesh Meerza, (1981) 4 SCC 335, where the Supreme Court of India held that, “Based on reasonable classification that requiring air hostesses to be unmarried for period of four years after getting employment was not a violation of the equality provision, however, that requiring them to leave employment after having children was against the equality provision.”

The petitioner bought an argument that the word “candidate” was not to be applied to Petitioner, because he was already selected, hence his status of marriage should not be questioned. The requirement of unmarried was for the purpose of training after the appointment. Therefore requirement was applicable until the conclusion of selection, training and the probation period or until the period specified by the appointing authority.

In view of the above, the Court found that there was no discrimination by the State and such condition was well drafted for the specified post. Hence it was held that no violation of the Fundamental Right of the petitioner.[Rubasin Gamage Indika Athula v. Inspector General of Police, 2019 SCC OnLine SL SC 4, decided on 07-06-2019]

Case BriefsHigh Courts

Karnataka High Court: R. Devdas, J. allowed a writ petition under Articles 226 and 227 of Constitution of India, and quashed the order passed by Bengaluru Development Authority, denying compassionate appointment to the petitioner.

In the instant case, the petitioner filed an application before the Bengaluru Development Authority (respondent), seeking appointment on compassionate ground. It was rejected by the respondent on the ground that petitioner was born out of the second marriage of his father who was an employee of the respondent-Authority. Thereby, the petitioner filed a writ petition before the High Court to quash the said order.

The learned counsel of the petitioner, Sri Shanmukhappa, submitted that the impugned order was passed by the respondent keeping in mind the Circular dated 27-08-2015 wherein it was stated that the children born out of second marriage of a government servant or an employee could not seek appointment on compassionate ground, which was offensive to the constitutional guarantee against discrimination. For this he relied on the judgment of the Supreme Court in Union of India v. V.R. Tripathi, 2018 SCC OnLine SC 3097, where it was held that “Having regard to the purpose and object of a scheme of compassionate appointment, once the law has treated such children as legitimate, it would be impermissible to exclude them from being considered for compassionate appointment.”

In the view of the above, the Court allowed the petition and ordered to quash the impugned order dated 12-03-2018. It also directed the respondent to reconsider the application of the petitioner, and pass the order in accordance with law within a period of two months.[Lohit Gowda V. v. State of Karnataka, 2019 SCC OnLine Kar 562, decided on 25-04-2019]

Hot Off The PressNews

London: “Caste in Great Britain and Equality Law- A Public Consultation” was introduced in the month of March 2017 in order to gather the general public’s views on how best to ensure that there is “appropriate legal protection” against caste discrimination in Britain.

The UK government in a statement released that caste discrimination among the Indian community does not require separate legislation and said it can be covered as part of emerging case laws in the country.

[Source: NDTV]

Case BriefsForeign Courts

 Supreme Court of United Kingdom: Lord Kerr, J. delivered the judgment for the Court including himself and Lady Hale, Lord Wilson, Lord Reed and Lady Black, JJ. wherein the Hon’ble Court struck down Sections 1 and 3 of Civil Partnership Act 2004, in as much as they precluded different-sex couples from entering into a civil partnership.

Appellants were a different-sex couple who wished to formalise their relationship; they had ideological objections to the concept of marriage which they believed to be patriarchal in nature; and as such, they wished to enter into a civil partnership instead. It is noteworthy that under Civil Partnership Act 2004, only same-sex couple could enter into a civil partnership. Also, the enforcement of Marriage (Same Sex Couples) Act 2013, made marriage of same-sex couples lawful. Consequently, same-sex couples have a choice to either enter into a civil partnership or solemnize a marriage. This choice was not available to different-sex couples. The appellant sought judicial review of respondent’s continuing decision not to make changes in CPA to allow different-sex couples to enter into civil partnerships. The issue before the Court was whether the ban as mentioned above-breached appellant’s right under Article 14 (prohibition on discrimination) together with Article 8 (right to respect for private life) of European Convention on Human Rights.

The Supreme Court, after due consideration of the facts and law, held that the said ban was violating the rights of different-sex couples under Article 14 read with Articles 8 of ECHR. In fact, the respondents admitted that the said position created inequality in treatment between same-sex and different-sex couples. The Court observed that enforcement of MSSCA without abolishing or making changes in the CPA, created inequality on the basis of sexual orientation of the two groups. The Government had decided not to take a final decision on future of civil partnerships, as it was proportionate to collect more data before any such decision could be made. While discussing the basis of interference with a qualified ECHR right, the Court held that for any such interference to be legitimate, the aim must be intrinsically linked to the discriminatory treatment. The Court was of the view that the Government had to eliminate the inequality of treatment immediately when the MSSCA was enforced. Even if interference with appellant’s rights, in this case, could be regarded as a legitimate aim, a fair balance between their rights and interests of the community had not been struck. Holding thus, the Supreme Court struck down Sections 1 and 3 CPA as mentioned hereinabove. [R. v. Secretary of State for International Development,[2018] 3 WLR 415, decided on 27-06-2018]

Case BriefsInternational Courts

European Court of Justice: In a ground-breaking ruling, the European Court of Justice has directed all member States to recognize the residency rights of same-sex spouses, even if the State does not allow same-sex marriages.

The case before the ECJ was involved Mr. Relu Adrian Coman, a Romanian national and Mr. Robert Clabourn Hamilton, an American national, who lived together in the United States for four years before getting married in Brussels in 2010. Mr. Hamilton was, however, denied the right of residence in Romania beyond three months, on the ground that he could not be considered in Romania as a ‘spouse’ of an EU citizen as Romanian law does not recognize marriage between persons of the same sex. The couple then approached the Constitutional Court, Romania, which in turn requested the ECJ whether Mr. Hamilton may be considered as the ‘spouse’ of an EU citizen who has exercised his right to freedom of movement and must, therefore, be granted a permanent right of residence in Romania.

Court observed that in a situation in which a Union citizen has made use of his freedom of movement by moving to and taking up genuine residence, in accordance with the conditions laid down in Article 7(1) of Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States other than that of which he is a national, and, whilst there, has created and strengthened a family life with a third-country national of the same sex to whom he is joined by a marriage lawfully concluded in the host Member State, Article 21(1) TFEU must be interpreted as precluding the competent authorities of the Member State of which the Union citizen is a national from refusing to grant that third-country national a right of residence in the territory of that Member State on the ground that the law of that Member State does not recognise marriage between persons of the same sex. Such person has right to reside in the territory of the Member State of which the Union citizen is a national for more than three months. This derived right of residence cannot be made subject to stricter conditions than those laid down in Article 7 of Directive 2004/38. Further, it noted that recital 31 of Directive 2004/38 inter alia prohibited discrimination on the ground of sexual orientation by the Member States. Court also held that the word ‘spouse’ used in Article 2(2)(a) in definitions in gender neutral. [Relu Adrian Coman v. Inspectoratul General pentru Imigrari and Ministerul Afacerilor Interne, Case C-673/16, dated 12-06-2018]

Case BriefsHigh Courts

Hyderabad High Court: A Division Bench of the High Court partly allowed a petition stating that the persons who have completed a 3 year LLB course after a 3 year graduation are to be treated at par with persons who have completed a 5 year LLB course after 10+2, so far as the appointment of law clerks for the High Court is concerned.

The petition stated that the persons who have completed a 3 year LLB degree after graduation are in no way different than the persons who have completed a 5 year LLB course after 10+2. The notification for the appointment of law clerks stated that only persons who have finished a 5 year LLB degree are eligible to be appointed as law clerks in the High Court. This notification was argued to be arbitrary and against Article 14 of the Constitution.

The Court agreed with this view but differed on two other questions. On the question of eligibility of persons who have completed a 3-year LLB course through distance education, the Court stated that such persons shall not be eligible as they are a different category from any other 3 year or 5 year LLB graduate. The position of law clerks have been created to hone the skills of fresh law graduates and not to provide employment.

As to the second question, the prohibition on enrolled advocates is upheld as they are assumed to have duties towards their clients which shall often clash which their judicial or administrative duties. On all these grounds, the petition was partly allowed with direction to the Registry to issue a corrigendum to the impugned notification. [S.M. Saifullah v. The Registrar General, High Court of Judicature at Hyderabad; W.P. No. 24806 of 2017, decided on 31.07.2017]

Case BriefsForeign Courts

United States Court of Appeals: Pronouncing a landmark decision addressing a vital issue that whether prohibition against discrimination on basis of sex excludes discrimination on basis of an individual’s sexual orientation, the Court (at the Seventh Circuit) with a ratio of 8:3, held that discrimination against a person on the basis of their sexual orientation is a form of sex discrimination.

The dispute in the instant case pertained to the blocking of fulltime employment of the plaintiff-appellant for several posts in the Ivy Tech Community College. The plaintiff-appellant is openly lesbian. It was alleged by the plaintiff appellant that she was being discriminated because of her sexual orientation, and that her rights under Title VII of the Civil Rights Act, 1964 are being violated. Title VII of the Civil Rights Act prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion.

The 11-Judge Bench headed by Chief Judge Wood perused the development of law on the point by the Supreme Court of United States for about two decades. It was observed that the Supreme Court currently has taken no stand upon the question; therefore it was pleaded before this Court to take a fresh look at the issue. The Court clearly stated that the issue before them is that, “what it means to discriminate on the basis of sex, and in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex”. It was further observed that Equal Employment Opportunity Commission in 2015 announced that Title VII’s prohibition against sex discrimination encompasses discrimination on the basis of sexual orientation. One of the Judges siding with the majority opinion even observed that why firing or discriminating against a lesbian should be thought any less a form of sex discrimination than firing a woman because she is a woman. [Kimberly Hively v. Ivy Tech Community College of Indiana, No. 15-1720, decided on 04.04.2017]

 

Case BriefsSupreme Court

Supreme Court: In a public interest litigation seeking directions to the concerned authorities to provide proper and adequate facilities in refugee camps, to prevent communal violence, to provide adequate compensation to the victims of such communal violence, highlighting the failure on part of State of Orissa in deploying adequate Police Force to maintain law and order in Kandhamal District of Orissa and in protecting innocent people whose human rights were violated after the unfortunate assassination of Swami Laxmanananda Saraswati and others on 23.08.2008 by some Maoists, the Court said that the ends of justice would be met if the State Government and the Central Government are directed to pay additional compensations in the light of the inadequacy of the compensation awarded initially.

Regarding the prayer of deploying adequate police forces, the Court held that Strengthening of police infrastructure in the District will undoubtedly help in curbing any re-occurrence of such communal violence but at the same time peace building measures must also be undertaken. The Court also directed the State Government to enquire into and find the causes for such communal unrest and strengthen the fabric of the Society. The Court also took note of the fact that out of 827 registered cases, 512 cases resulted in filing of charge-sheets while in 315 cases final reports were submitted. In other words, in 315 cases either no offence was found to have been made out or the offenders could not be detected. The Court said that such large proportion is quite disturbing and that the State could do well in looking into all these 315 cases and see that the offenders are brought to book. Similarly, out of 362 trials which stand completed only 78 have resulted in conviction, which again was considered as a matter of concern and the concerned authorities were directed to see that the matters are taken up wherever acquittals were not justified on facts.

The bench of T.S. Thakur, CJI and U.U. Lalit, J reiterated the words of the Court in Ahmedabad St. Xavier’s College Society v. State of Gujarat, (1974) 1 SCC 717, where it was said that the minorities are as much children of the soil as the majority and the approach has been to ensure that nothing should be done, as might deprive the minorities of a sense of belonging, of a feeling of security, of a consciousness of equality and of the awareness that the conservation of their religion, culture, language and script. It can, indeed, be said to be an index of the level of civilization and catholicity of a nation as to how far their minorities feel secure and are not subject to any discrimination or suppression. [Archbishop Raphael Cheenath S.V.D v. State of Orissa, 2016 SCC OnLine SC 761, decided on 02.08.2016]

Case BriefsHigh Courts

Kerala High Court: The Court deciding an issue on arbitrariness of the cap imposed on financial concessions for the differently abled persons held that the concession granted by the Government was a privilege and hence, Article 14 of the Constitution  was not invalidated by a reasonable condition imposed.

The facts of the case were, the Kerala Government by Government Order dated: 31.03.1998 provided for tax concessions for certain motor vehicles, including luxury cars, being purchased by differently abled persons. Later, the Government imposed a cap of Rs 5 lakh on the value of the vehicle entitled for exemption. The appellant in the present case, suffered from 100% disability and was  totally wheelchair dependent and his son was specially abled. Given the needs of the family, he decided to buy a ‘bigger car’.

The cap came to be impugned by the appellant by a writ petition, which upon consideration was dismissed by a Single Judge. Thus aggrieved, the question came for consideration before the Division Bench.

It was argued that the imposition of a cap and limiting the value of purchase amounted to arbitrariness and fell foul of Article 14. It was submitted that the imposition of the cap with the view to prevent misuse of the privilege was irrational.

The Division Bench of Antony Dominic and D. M. Naidu, JJ  acknowledged the grounds of reasonableness and non-arbitrariness in classification of discrimination in terms of Article 14 of  the Constitution and held that the a privilege is different from a right. Dismissing the appeal, it was held  that the issue involved only a concession in the form of financial incentive for the physically challenged and therefore, the Government was justified in imposing suitable conditions, and the contentions of discrimination or unreasonableness did not apply. [C.H. Moideen Kunhi v. State of Kerala, 2016 SCC OnLine Ker 5340 decided on June 7, 2016]

 

Case BriefsHigh Courts

Madhya Pradesh High Court: While deciding a public interest litigation (PIL) questioning reservation in promotions, the Court quashed all provisions granting promotions in the MP Public Service Promotion Rules, 2002, which introduced to reservation for SCs and STs in all posts at government departments. The state government in exercise of the powers conferred by the proviso to Article 309 read with Article 16 and 335 of the Constitution of India, relating to determination of the basis for promotion in public services and posts and also, the reservation in promotion in favour of Scheduled Castes and Scheduled Tribes, had made provisions of 20 per cent reservation for SC employees and 16 per cent for ST employees in the service.

The Court decided on the public interest litigation (PIL) filed by R B Rai, Santosh Kumar, SC Pandey and others, who had challenged the 2002 service rules on the ground that they were not in conformity with the law (guidelines) laid down by the Supreme Court in M. Nagaraj v. Union of India, the Supreme Court had laid down certain guidelines while interpreting Articles 16, 16 (4), 16 (4A), 16 (4B) and 335, before making provisions of reservations in promotion with benefit of consequential seniority, filing up of backlog vacancies, lowering of standards of evaluation etc.

The bench comprising A M Khanwilkar C.J. and Sanjay Yadav J.observed that all promotions granted as per 2002 rules would be invalid and stated that “The existing provision relating to reservation, backlog vacancies, carry forward of backlog vacancies contained in the Rules of 2002 runs contrary to the constitutional provisions contained in clause (4A) and (4B) of Article 16 and Article 335 and law predicated in M Nagraj,” observed the High Court. It further stated that “Consequently, various promotions of SCs and STs category made on the basis of these rules of 2002 are held to be non-est in the eyes of law and the persons be placed in the position as if the said Rules never existed and all actions taken in furtherance thereof must be reverted to status quo ante (the situation existing earlier).” The Court had further required the government to satisfy itself after collection of ‘quantifiable’ data in each case to ensure that there is no reverse discrimination vis-a-vis the general category candidates. It was further submitted that the rules are ultra vires also because the other directions as mandated by the apex court have also not been followed. [R.B. Rai v. State of Madhya Pradesh, Writ Petition No.1942/2011, Decided on 30.4.2016]