Case BriefsHigh Courts

Kerala High Court: In a significant relief to non-NLU law graduates seeking job opportunities in PSUs, V.G. Arun, J., declared that NTPC’s notification for the recruitment of Assistant Law Officers is discriminatory and violates Article 16 of the Constitution for confining the selection process only to CLAT PG-2021 candidates.  

The Court expressed,  

“There is no logical basis for the assumption that professionalism and competence is the fiefdom of only those passing from elite institutions. The process now adopted is more like a walkover to the finals for a chosen few, without competing in the preliminaries.”

Factual Backdrop and Interim Order 

The petitioner, a Law Graduate, had approached the Court to challenge the notification published by National Thermal Power Corpn. Ltd. (NTPC) inviting applications for appointment to the post of Assistant Law Officer. As per the notification, the selection is confined to only those candidates who have appeared for CLAT-2021 (Common Law Admission Test-2021) Post Graduate programme conducted by the Consortium of National Law Universities. Based on their performance in the test, the candidates would be shortlisted for document verification. 

The petitioner being a law graduate with the requisite minimum marks was desirous of applying for the notified vacancy, but was prevented from doing so, as she had not appeared for the CLAT-2021 PG programme. Therefore, she had assailed the selection process on the ground that it is discriminatory and violates Article 16 of the Constitution. 

Finding prima facile merit in the challenge, the Court had passed an interim order, directing the NTPC to accept the petitioner’s application, subject to the final outcome of the writ petition. 

 

Grounds for Challenge  

The petitioner had assailed the notification on the following grounds:  

  • Imposing a precondition that the candidates should have appeared for CLAT 2021 PG programme and making selection on the basis of marks secured in CLAT 2021, militates against the fundamental right to equality of opportunity in public employment guaranteed under Article 16 of the Constitution.  
  • The fees in NLUs being much higher than in other Law Colleges, including the fee for participation in entrance exam, i.e., CLAT PG being much higher than the fee for admission tests for other law colleges, the notification discriminates between those having the financial capacity for pursuing their higher studies in National Law Universities and others, who opt to join law colleges with lesser fees. 
  • By the offensive clause, the zone of eligible applicants is reduced to a small fraction, from among the multitude of law graduates aspiring for public employment. 
  • The clause has no rational nexus with the objective sought to be achieved, viz; selection of the most competent from among the law graduates. 

 

Analysis and Findings 

The NTPC argued that employers enjoy a prerogative in fixing eligibility criteria and there is limited scope for judicial interference. Rejecting the aforementioned argument, the Court opined that the prerogative exists unless the act of the employer is found to be arbitrary, unreasonable or having no rational nexus to the objective sought to be achieved. The Court noted that in the case at hand the challenge was not against qualification or eligibility, but focused on the selection process. The challenge was mainly on the ground that, incorporation of the restrictive selection criteria was nothing but indirect discrimination as recognised in Nitisha v. Union of India, (2021) SCC OnLine SC 261 

Similarly, rejecting the NTPC’s argument that it is inexpedient to conduct selection test across India for filling up ten posts, the Court held that such argument was antithesis to Article 16 of the Constitution; since as long as the Constitution guarantees equality of opportunity to the citizens, the State and its instrumentalities have a corresponding duty to ensure such opportunity to all. 

 

The Court noted that out of the 1721 law colleges in India, only 23 are members of the Consortium of National Law Universities. Another crucial aspect, making the selection process plagued by indirect discrimination is that consideration for selection is confined to candidates who had appeared for CLAT-2021 PG programme alone and even candidates who had appeared for the previous year’s CLAT PG programme and performed well are kept out of the zone of consideration. 

“The process now adopted is more like a walkover to the finals for a chosen few, without competing in the preliminaries.” 

 

Noticing that the selection is based on a test conducted much prior to the issuance of impugned notification, the Court opined that law graduates aspiring for appointment in public sector undertakings cannot be expected to appear for an admission test, hoping that in future that test will be made the criterion for selection and appointment to PSUs.  

 

Lastly, the Court observed that the focus of the test is on academics and not an assessment of the skill set expected of future Law Officers which makes the selection process devoid of any rational nexus with the objective.  

 

Conclusion  

In the backdrop of above, the Court concluded that the impugned notification, insofar as it confines the selection process to only candidates who had participated in the CLAT-2021 PG programme, violated Article 16 of the Constitution.  

However, rather than upsetting the whole selection process, the Court had directed the NTPC to accept the petitioner’s application and conduct a selection test or interview for testing her eligibility for appointment to the notified post. The Court directed that further action with respect to the appointment shall be taken depending on the outcome of such selection test/interview. 

[Aishwarya Mohan v. Union of India, 2022 SCC OnLine Ker 3090, decided on 06-06-2022]  


Appearance by: 

For the Petitioner: Advocate Maitreyi S.Hegde  

For Union of India: SGI Tushar Mehta assisted by Advocate Adarsh Tripathi, ASG S.Manu and Advocate N.S. Daya Sindhu Shree Hari 


*Kamini Sharma, Editorial Assistant has reported this brief.

 

Case BriefsSupreme Court

Supreme Court: The bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has held that when there is a reasonable basis for a classification adopted by taking note of the exigencies and diverse situations, the Court is not expected to insist on absolute equality by taking a rigid and pedantic view as against a pragmatic one.

On Classification Test & Policy Decisions of the State

Such a discrimination would not be termed as arbitrary as the object of the classification itself is meant for providing benefits to an identified group of persons who form a class of their own. When the differentiation is clearly distinguishable with adequate demarcation duly identified, the object of Article 14 gets satisfied.

Social, revenue and economic considerations are certainly permissible parameters in classifying a particular group. Thus, a valid classification is nothing but a valid discrimination. That being the position, there can never be an injury to the concept of equality enshrined under the Constitution, not being an inflexible doctrine.

The question as to whether a classification is reasonable or not is to be answered on the touchstone of a reasonable, common man’s approach, keeping in mind the avowed object behind it. If the right to equality is to be termed as a genus, a right to non-discrimination becomes a specie. When two identified groups are not equal, certainly they cannot be treated as a homogeneous group. A reasonable classification thus certainly would not injure the equality enshrined under Article 14 when there exists an intelligible differentia between two groups having a rational relation to the object.

On Judicial Interference

An interference would only be called for on the court being convinced that the classification causes inequality among similarly placed persons. The role of the court being restrictive, generally, the task is best left to the concerned authorities. When a classification is made on the recommendation made by a body of experts constituted for the purpose, courts will have to be more wary of entering into the said arena as its interference would amount to substituting its views, a process which is best avoided.

As long as the classification does not smack of inherent arbitrariness and conforms to justice and fair play, there may not be any reason to interfere with it. It is the wisdom of the other wings which is required to be respected except when a classification is bordering on arbitrariness, artificial difference and itself being discriminatory. A decision made sans the aforesaid situation cannot be tested with either a suspicious or a microscopic eye. Good-faith and intention are to be presumed unless the contrary exists. One has to keep in mind that the role of the court is on the illegality involved as against the governance.

A larger latitude in dealing with a challenge to the classification is mandated on the part of the Court when introduced either by the Legislature or the Executive as the case may be. There is no way, courts could act like appellate authorities especially when a classification is introduced by way of a policy decision clearly identifying the group of beneficiaries by analysing the relevant materials.

[State of Uttarakhand v. Sudhir Budakoti, 2022 SCC OnLine SC 420, decided on 07.04.2022]


*Judgment by: Justice MM Sundresh

Case BriefsSupreme Court

Supreme Court: Holding that the condition imposed by the Railway Board circular that compassionate appointment cannot be granted to children born from the second wife of a deceased employee is discriminatory, the 3-judge bench of UU Lalit, S. Ravindra Bhat and PS Narsimha*, JJ has held that an applicant cannot be denied consideration under the scheme of compassionate appointments only because he is the son of the second wife of his father.

The Court applied the law laid down by the Court in Union of India v. V.R. Tripathi, (2019) 14 SCC 646, wherein it was held that such a denial is discriminatory, being only on the ground of descent under Article 16(2) of the Constitution.

The Court, in the said judgment, had held that the scheme and the rules of compassionate appointment cannot violate the mandate of Article 14 of the Constitution. Once Section 16 of the Hindu Marriage Act regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would violate Article 14 if the policy or rule excludes such a child from seeking the benefit of compassionate appointment. The circular creates two categories between one class, and it has no nexus to the objects sought to be achieved. Once the law has deemed them legitimate, it would be impermissible to exclude them from being considered under the policy.

“Exclusion of one class of legitimate children would fail to meet the test of nexus with the object, and it would defeat the purpose of ensuring the dignity of the family of the deceased employee.”

Relying on a number of Supreme Court rulings, the Court observed that compassionate appointment is an exception to the constitutional guarantee under Article 16, a policy for compassionate appointment must be consistent with the mandate of Articles 14 and 16. That is to say, a policy for compassionate appointment, which has the force of law, must not discriminate on any of the grounds mentioned in Article 16(2), including that of descent. Hence, in this regard, ‘descent’ must be understood to encompass the familial origins of a person.

“Familial origins include the validity of the marriage of the parents of a claimant of compassionate appointment and the claimant’s legitimacy as their child. The policy cannot discriminate against a person only on the ground of descent by classifying children of the deceased employee as legitimate and illegitimate and recognizing only the right of legitimate descendant.”

[Mukesh Kumar v. Union of India, 2022 SCC OnLine SC 229, decided on 24.02.2022]


*Judgment by: Justice PS Narsimha


Counsels

For Appellant: Advocate Manish Kumar Saran

For Respondent: Advocate Meera Patel

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: V.G.Arun, J., held that the practice of confining selection process to CLAT PG-2021 candidates only for the post of Assistant Law Officer at NTPC was prima facie discriminatory. However, without expressing anything further on the matter the Bench had adjourned the matter for further hearing with the direction to the Central Government and NTPC to file a detailed counter affidavit in that regard.

The petitioner was an aspirant to the post of Assistant Law Officer notified by the National Thermal Power Corpn. Ltd. (NTPC) and was presently pursuing her studies in LLM at the Cochin University of Science and Technology. Though, the petitioner had the notified qualification of 60% marks in Bachelor’s Degree in Law and registration with the Bar Council, she was aggrieved by the discriminatory manner in which the selection process was being confined to candidates who had appeared for CLAT-2021 PG programme.

The petitioner submitted that, being a public sector undertaking falling within the definition of Article 12 of the Constitution, the NTPC could not shut out the chances of persons like the petitioner, merely for the reason that she was pursuing her PG programme in a University that was not part of the consortium of National Law Universities. The petitioner argued that there was no nexus between the objectives sought to be achieved by imposing such a condition, since CLAT exam is meant for assessing academic brilliance of students, whereas the NTPC was seeking to select the best among legal professionals. Reliance was placed by the petitioner on the decision of the Supreme Court in Lt. Col. Nitisha v. Union of India, 2021 SCC online SC 261, to contend that the imposition of such restrictive condition amounts to indirect discrimination.

The question for consideration before the Bench was whether, after having prescribed LLB degree from any recognised Indian University with 60% marks as qualification, the eligibility criteria could be restricted to candidates who had appeared for CLAT-2021 PG Programme and CLAT score made the basis for selection? Also, whether persons having requisite qualifications could be compelled to appear for the CLAT PG Programme as a condition precedent for accepting their applications?

Considering the above, the Bench opined that prima facie the condition was discriminatory. The Bench stated,

“Even if the CLAT exam conducted by the Consortium of National Law Universities is capable of selecting the brightest students; that is no justification for thwarting the career prospects of law graduates like the petitioner.”

Consequently, the Bench directed the Government to accept the application submitted by the petitioner, subject to the final outcome of the petition. On being pointed out that applications are to be submitted online and the system may not accept the applications which are not in conformity with the notification, the Bench further directed that the petitioner shall be permitted to submit her application by logging on to the website of NTPC and if the application is not accepted by the system, that can be brought to the notice of the Court. The matter was posted on 20-02-2022 for further hearing. [Aishwarya Mohan v. Union of India, 2022 SCC OnLine Ker 78, order dated 05-01-2022]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Maitreyi Sachidananda Hegde, Advocate

For the Union of India: S.Manu, ASG and N.S.Daya Sindhu Shree Hari, Central Government Counsel

Case BriefsSupreme Court

Supreme Court: In a case where the CRPF had initiated disciplinary proceeding against a person with a medical history of obsessive compulsive disorder  and depression and has been undergoing treatment for the same since 2009, the 3-judge bench of Dr. DY Chandrachud*, Surya Kant and Vikram Nath, JJ has held that the initiation of disciplinary proceedings against persons with mental disabilities is a facet of indirect discrimination as such persons suffer a disproportionate disadvantage due to the impairment and are more likely to be subjected to disciplinary proceedings.

Relevant Provisions under the Rights of Persons with Disabilities Act 2016

  • Section 3 of the RPwD Act provides a general guarantee against non-discrimination and equality to persons with a disability.
  • Section 20 specifically provides that no government establishment shall discriminate against any person who has acquired a disability in any matter relating to employment.
  • Section 2(h) prohibits discrimination on the basis of disability. It is pertinent to note that the provision does not use the phrase ‘only’ on the basis of disability.

The Court specifically highlighted that Sub-Section (4) of Section 20 advances the guarantee of reasonable accommodation to persons with mental disabilities. The Government establishment has a positive obligation to shift an employee who acquired a disability during service to a suitable post with the same pay scale and service benefits. The provision further states that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post becomes available or when they attain the age of superannuation, whichever is earlier.

Further, the proviso to sub-Section (1) of Section 20 of the RPwD Act provides a justification for violating the right against discrimination in employment. It provides that the appropriate government, may, having regard to the type of work carried on in any establishment exempt such an establishment from the provisions of Section 20. The key words here to note are “having regard to the type of work”. This indicates that the government’s right to exempt an establishment from the provisions of Section 20 which deals with employment discrimination is not absolute. In an appropriate case, a standard for reviewing the justification given by the government may have to be developed.

The Court, however, did not indicate any final thoughts on how the proviso to Section 20 (1) is to be interpreted.

Pondering over the possible trappings which a standard of judicial review may adopt, the Court said that such an enquiry is rooted in, “the idea that something protected as a matter of right may not be overridden by ordinary considerations of policy…Reasons justifying an infringement of rights have to be of a special strength”.

“The jurisprudence of Sections 3 and 20 of the RPwD Act would have to evolve. Our journey has begun.”

Whether disciplinary proceedings can be instituted against the atypical conduct of an employee who has a mental disability: Key highlights of the 97-pages long verdict

  • A person with a disability is entitled to protection under the Rights of Persons with Disabilities Act 2016 (RPwD Act) as long as the disability was one of the factors for the discriminatory act.
  • The mental disability of a person need not be the sole cause of the misconduct that led to the initiation of the disciplinary proceeding. Disability needs to be one of the factors that led to the discriminatory act. Thus, the employee is only required to prove that disability was one of the factors that led to the institution of disciplinary proceedings against him on the charge of misconduct. A related enquiry then is to examine whether the conduct of the employee with a mental disability must be solely a consequence of their disability or it is sufficient to show that the disability was one of the factors for the conduct. An interpretation that the conduct should solely be a result of an employee’s mental disability would place many persons with mental disabilities outside the scope of human rights protection.
  • Having regard to the complex nature of mental health disorders, any residual control that persons with mental disabilities have over their conduct merely diminishes the extent to which the disability contributed to the conduct, it does not eliminate it as a facto.
  • Mental health disorders pose a unique challenge in disability rights adjudication. Very often, persons are not aware of or are in denial of their mental disability. Even if they hold the awareness, to avoid stigma and discrimination, they tend to not disclose their mental illness before an incident of purported misconduct. Many people with mental health disorders are willing and able to work. However, socio-structural barriers impede their participation in the workforce. People diagnosed with mental health disorders are less likely to be employed or are relegated to low-paying jobs that are not commensurate with their qualifications and interests. Exclusion from the workforce not only creates conditions of material deprivation, but it also impacts self-confidence, and results in isolation and marginalization which exacerbates mental distress. To escape stigma and discrimination, persons with mental health issues painstakingly attempt to hide their illnesses from co-workers and managers. Thus, they may fall foul of the requirement to request a reasonable accommodation. Hence, the duty of providing reasonable accommodation to persons with disabilities is sacrosanct.
  • All possible alternatives must be considered before ordering dismissal from service. Thus, what is required is a nuanced and individualized approach to mental disabilities related discrimination claims, which requires understanding the nature of the disadvantage that such persons suffer.
  • Saying that persons with mental health disorders are never in control of their actions, may perpetuate another stereotype that such persons are “dangerous”, who are more prone to commit violent or reckless acts.
  • Since disability is a social construct dependent on the interplay between mental impairment with barriers such as social, economic and historical among other factors, the one – size fits all approach can never be used to identify the disability of a person. Disability is not universal but is an individualistic conception based on the impairment that a person has along with the barriers that they face. Since the barriers that every person faces are personal to their surroundings – interpersonal and structural, general observations on ‘how a person ought to have behaved’ cannot be made.

Ruling on facts

The appellant has been undergoing treatment for mental health disorders for a long time, since 2009. He has been diagnosed with 40 to 70 percent of permanent disability by a government hospital. The Court, hence, noticed that,

“While all CRPF personnel may be subject to disciplinary proceedings on charges of misconduct, the appellant is more vulnerable to engage in behavior that can be classified as misconduct because of his mental disability. He is at a disproportionate disadvantage of being subjected to such proceedings in comparison to his able-bodied counterparts.”

Hence, in light of Section 20(4) and the general guarantee of reasonable accommodation that accrues to persons with disabilities, the appellant is entitled to be reassigned to a suitable post having the same pay scale and benefits. The CRPF may choose to assign him a post taking into consideration his current mental health condition. The suitability of the post is to examined based on an individualised assessment of the reasonable accommodation that the appellant needs. The authorities can ensure that the post to which the appellant is accommodated does not entail handling or control over firearms or equipment which can pose a danger to himself or to others in or around the workplace.

[Ravindra Kumar Dhariwal v. Union of India, 2021 SCC OnLine SC 1293, decided on 17.12.2021]


Counsels

For Appellant: Advocate Rajiv Raheja, learned counsel appearing on behalf of the appellant

For UOI: Additional Solicitor General Madhavi Divan


*Judgment by: Justice Dr. DY Chandrachud

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud* and AS Bopanna, JJ while upholding the constitutionality of the Scheme formulated by the State of Tamil Nadu granting loan waiver to small and marginal farmers as these farmers suffer a greater degree of harm because of their limited capacity and aid, had the occasion to discuss in detail the under-inclusive and over-inclusive classification and explained that a statute is ‘under-inclusive’ if it fails to regulate all actors who are part of the problem and it is ‘over-inclusive’ if it regulates actors who are not a part of the problem that the statute seeks to address.

Under-inclusive and over-inclusive classification vis-à-vis the two-pronged test to determine if there has been a violation of Article 14

The determination of whether the classification is under-inclusive is closely related to the test that is undertaken by the Court while determining the relationship of the means to the end. The Court follows the two-pronged test to determine if there has been a violation of Article 14. The test requires the court to determine if there is a rational nexus with the object sought to be achieved.

While non-classification arbitrariness is tested based on the proportionality test, where the means are required to be proportional to the object, classification arbitrariness is tested on the rational nexus test, where it is sufficient if the means share a ‘nexus’ with the object. The degree of proof under the test would impact the judgment of this Court on whether the law is under-inclusive or over-inclusive. A statute is ‘under-inclusive’ if it fails to regulate all actors who are part of the problem. It is ‘over-inclusive’ if it regulates actors who are not a part of the problem that the statute seeks to address. The determination of under-inclusiveness and over-inclusiveness, and degree of deference to it is dependent on the relationship prong (‘rational nexus’ or ‘proportional’) of the test.

The nexus test, unlike the proportionality test, is not tailored to narrow down the means or to find the best means to achieve the object. It is sufficient if the means have a ‘rational nexus’ to the object. Therefore, the courts show a greater degree of deference to cases where the rational nexus test is applied. A greater degree of deference is shown to classification because the legislature can classify based on the degrees of harm to further the principle of substantive equality, and such classification does not require mathematical precision. The Indian Courts do not apply the proportionality standard to classificatory provisions.

Important Rulings

Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

The over-emphasis on the ‘objective’ of the law, instead of its ‘effect’ – particularly when the objective is ostensible – was observed not to further the true meaning of the equality clauses under the Indian Constitution. The traditional two- pronged classification test needs to be expanded for the Courts to undertake a substantive review of Article 14 violations, away from the formalistic tendency that the twin test leans towards.

State of Gujarat v. Ambica Mills, (1974) 4 SCC 656

A classification is under-inclusive when all who are included in the class are tainted with the mischief but there are others also tainted whom the classification does not include. In other words, a classification is bad as underinclusive when a State benefits or burdens persons in a manner that furthers a legitimate purpose but does not confer the same benefit or place the same burden on others who are similarly situated. A classification is over-inclusive when it includes not only those who are similarly situated with respect to the purpose but others who are not so situated as well. In other words, this type of classification imposes a burden upon a wider range of individuals than are included in the class of those attended with mischief at which the law aims. Herod ordering the death of all male children born on a particular day because one of them would some day bring about his downfall employed such a classification.

[State of Tamil Nadu v. National South Indian River Interlinking Agriculturist Association, 2021 SCC OnLine SC 1114, decided on 23.11.2021]


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan*, R. Subhash Reddy and MR Shah, JJ has held that while determining the taxable value of lottery the prize money is not to be excluded for the purpose of levy of GST.

The Court explained that for determining the value of the lottery, there is statutory provision contained in Section 15 read with Rule 31A. Section 15 of the Central Goods and Services Tax Act, 2017 by sub-section (2) provides what shall be included in the value of supply. What can be included in the value is enumerated in sub-clause (a) to (e) of sub-section (2) of Section 15. Further, subsection (3) of Section 15 provides that what shall not be included in the value of the supply.

“What is the value of taxable supply is subject to the statutory provision which clearly regulates, which provision has to be given its full effect and something which is not required to be excluded in the value of taxable supply cannot be added by judicial interpretation.”

Further, Rule 31A as noted above, sub-rule (2) as amended clearly provides that value of supply shall be deemed to be 100/128 of the face value of ticket or of the prize as notified in the Official Gazette by the Organising State, whichever is higher.

The Court said that the value of taxable supply is a matter of statutory regulation and when the value is to be transaction value which is to be determined as per Section 15 it is not permissible to compute the value of taxable supply by excluding prize which has been contemplated in the statutory scheme. It was hence, held that

“When prize paid by the distributor/agent is not contemplated to be excluded from the value of taxable supply, we are not persuaded to accept the submission of the petitioner that prize money should be excluded for computing the taxable value of supply.”

[Skill Lotto Solutions v. Union of India, 2020 SCC OnLine SC 990, decided on 03.12.2020]


*Justice Ashok Bhushan has penned this judgment

For petitioner: Senior Advocate Ravindra Shrivastava,

For Union of India: Additional Solicitor General Vikramjit Banerjee

For Intervenor: Senior Advocate C.A. Sundaram

Also read: Supreme Court upholds constitutionality of imposition of GST on lotteries, betting and gambling 

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has upheld the constitutionality of imposition of GST on lotteries, betting and gambling.

Here are the key takeaways from the judgment: 

Whether the inclusion of actionable claim in the definition of goods as given in Section 2(52) of Central Goods and Services Tax Act, 2017 is contrary to the legal meaning of goods and unconstitutional?

The inclusion of actionable claim in definition “goods” as given in Section 2(52) of Central Goods and Services Tax Act, 2017 is not contrary to the legal meaning of goods nor it is in conflict with the definition of goods given under Article 366(12).

“The Constitution framers were well aware of the definition of goods as occurring in the Sale of Goods Act, 1930 when the Constitution was enforced. By providing an inclusive definition of goods in Article 366(12), the Constitution framers never intended to give any restrictive meaning of goods.”

Parliament by the  Constitution (One Hundred and First Amendment) Act, 2016 inserted Article 246A, a special provision with respect to goods and services tax in which special power has to be liberally construed empowering the Parliament to make laws with respect to goods and services tax. Article 246A begins with non obstante clause that is “Notwithstanding anything contained in Articles 246 and 254”, which confers very wide power to make laws. When the Parliament has been conferred power to make law with respect to goods and services, the legislative power of the Parliament is plenary.

“The power to make laws as conferred by Article 246A fully empowers the Parliament to make laws with respect to goods and services tax and expansive definition of goods given in Section 2(52) cannot be said to be not in accord with the constitutional provisions.”

Whether the Constitution Bench’s observation ‘lottery is an actionable claim’ in Sunrise Associates v. Govt. of NCT of Delhi, (2006) 5 SCC 603 a law or obiter dicta?

The definition of goods in Section 2(j) as noticed by the Constitution Bench states that ‘goods’ means all kinds of movable property (other than newspaper, actionable claims, stocks, shares and securities). The exclusion of the actionable claims from the goods as enumerated in the definition is also a part of the definition.

“If a particular item is covered by exclusion it is obvious that it does not fall in the definition of the goods. When the Constitution Bench came to the conclusion that the lottery is an actionable claim it was considering the definition of 2(j) itself and what has been held by the Constitution Bench cannot be held to be obiter dicta.”

The Constitution Bench in Sunrise Associates has categorically held that lottery is actionable claim after due consideration which is ratio of the judgment. The expansion of definition of goods under Section 2(52) of Act, 2017 by including actionable claim is in the line with the Constitution Bench pronouncement in Sunrise Associates and no exception can be taken to the definition of the goods as occurring in Section 2(52).

Whether exclusion of lottery, betting and gambling from Item No.6 Schedule III of Central Goods and Services Tax Act, 2017 is hostile discrimination and violative of Article 14 of the Constitution of India?

The Constitution Bench in State of Bombay Vs. R.M.D. Chamarbaugwala, AIR 1957 SC 699 has clearly stated that Constitution makers who set up an ideal welfare State have never intended to elevate betting and gambling on the level of country’s trade or business or commerce.

Lottery, betting and gambling are well known concepts and have been in practice in this country since before independence and were regulated and taxed by different legislations. When Act, 2017 defined the goods to include actionable claims and included only three categories of actionable claims, i.e., lottery, betting and gambling for purposes of levy of GST, it cannot be said that there was no rationale for including these three actionable claims for tax purposes.

“It is a duty of the State to strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice, social, economic and political, shall inform all the institutions of the national life.”

Hence, there is no violation of Article 14 in Item No. 6 of Schedule III of the Act, 2017.

Whether while determining the face value of the lottery tickets for levy of GST, prize money is to be excluded? 

Read here 

[Skill Lotto Solutions v. Union of India, 2020 SCC OnLine SC 990, decided on 03.12.2020]


*Justice Ashok Bhushan has penned this judgment

For petitioner: Senior Advocate Ravindra Shrivastava,

For Union of India: Additional Solicitor General Vikramjit Banerjee

For Intervenor: Senior Advocate C.A. Sundaram

 

Also read: GST on lotteries| Prize money not to be excluded for computing the taxable value of supply, holds SC

Case BriefsTribunals/Commissions/Regulatory Bodies

National Human Rights Commission, India takes suo motu cognizance of the matter over reported gang rape and brutality of 19-year-old women belonging to Scheduled Caste in Hathras district, UP.

According to media reports that a 19 year old woman belonging to Scheduled Caste went missing on 14.09.2020. She was found in a badly injured condition on 22.09.2020 and she was subjected to gang rape and brutality in Hathras District of Uttar Pradesh two weeks ago. She was shifted from the Aligarh Muslim University’s Jawaharlal Lal Nehru Medical College and Hospital on 28.09.2020 when her condition deteriorated and there were no signs of improvement in her health condition. The victim has reportedly died at Safdarjung Hospital in New Delhi on 29.09.2020.

The District Magistrate, Hathras, Uttar Pradesh has reportedly stated that the accused have also been booked under the SC/ST(POA) Act and the family of the victim has been given compensation of Rs 10 Lakhs. He has also mentioned that a Fast Track Court will be set up to hear the case to punish the culprits at the earliest.

The Supdt. of Police, Hathras, U.P. has reportedly stated that the woman had suffered spinal injuries and he has denied the reports that the tongue of the victim was slit.

He has also mentioned in his statement the In-charge of the Hathras Kotwali PS has been removed for the alleged inaction in the case and the four accused have been arrested who will be booked for the murder. Further, he added that the first one Sandeep Singh was arrested the day when the woman was subjected to rape and later three more accused Lovkush Sikarwar, Ramu and Ravi were arrested when the woman named them in their statement before the Magistrate, on 22-09-2020.

The perpetrators reportedly tried to strangulate the victim when she tried to resist their attempts to rape her.

Another media report reveals that the family of the victim woman has alleged that the body of the deceased was forcibly taken away for cremation by the police personnel.

The body of the deceased had reportedly reached her village around mid-night and the cremation was done by 3.00 A.M., on 30.09.2020. It is mentioned in the news report that the villagers wanted to take the body of the woman to her house but the administration pressurized for cremation at the earliest.

The police authorities have however denied the allegation. It is reportedly stated by the SP, Hathras, that the cremation was done as usual, after the body reached Boolgarhi village in Hathras. He has also stated that the situation is calm and heavy police force has been deployed in the village.

The Commission has gone through the contents of the media reports which are very painful. A young woman belonging to SC community has been subjected to sexual harassment and brutality. It is apparent that the police was not able to take timely action to trace and save the victim girl due to which the young woman could not be saved from being subjected to grave cruelty. The way the perpetrators have acted shows that they had no fear of law in their mind. The family has suffered an irrevocable loss. A young and a precious human life has been lost.

Not only this, but there are also allegations made by the family that the police forcibly took away the body of the deceased for cremation have been revealed by the media. The incident has raised many questions about the law and order situation in the State. Many such incidents have occurred in the State of Uttar Pradesh where the members of the Scheduled Community have been subjected to discrimination and harassment by the people belonging to the upper caste. There have been a number of instances of leveling allegations of inaction against the police authorities and the administration. This is a serious issue of violation of human rights.

The Commission has further directed to the State Govt. to provide adequate protection to the family of the deceased keeping in view the gravity of the matter and aspect of the witness protection as there is an apparent rift between the two communities and there may be a danger to the family of the deceased.

The DGP, U.P. is expected to look personally into the matter to ensure a speedy trial so that the culprits could be punished by the competent court without any further delay. In the current scenario, it is necessary that the family of the deceased as well as other members of the SC Community residing in the village are provided proper protection by the police.

Both the authorities are expected to submit their report, within the stipulated time.

The Commission is expected the responses from the State Authorities within four weeks.


NHRC

Press Release dt. 30-09-2020

Case BriefsCOVID 19High Courts

“Education is the passport to the future.”

Delhi High Court: A Division Bench of Manmohan and Sanjeev Narula, JJ., while addressing the issue with regard to digital education observed that

“…tuition fee was payable towards imparting education and “not for a lien on a seat”

Schools imparting Synchronous Face-to-face Real-Time Online Education, not as a voluntary service but as a part of their responsibility under the RTE Act, 2009.

DIGITAL DIVIDE

Inequality in education has been around long before Covid-19, but the pandemic has exacerbated the same by adding another strand/element to it, namely, the digital divide.

Reopening of physical classroom

Unparalleled education disruption from the Covid-19 pandemic is far from over, as, despite lapse of nearly six months, the Union of India and the Government of NCT of Delhi are yet to announce a date for reopening of the physical classroom for elementary schools.

Concern in the present petition

The instant Public Interest Litigation was filed seeking a direction to respondents to supply free laptops/android mobile phones/electronic tablets with high-speed internet to children belonging to the Economically Weaker Section (EWS) so that they could attend their classes by way of video conferencing just like fee-paying students in their classes.

During the pendency of the present petition, some other schools also started online classes, the petitioner sought modification in the prayer clause to include children studying in these schools, so that comprehensive orders could be passed under Article 21A of the Constitution of India for all the children other than fee-paying students.

Analysis and Decision

Article 21A of the Constitution imposes an enforceable/justiciable obligation upon the State to provide free and compulsory elementary education to each and every child between the age of six and fourteen in a manner as determined by law.

In pursuance of the above stated constitutional obligation, the Centre enacted the RTE Act, 2009.

Court cited the Supreme Court decision in Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, wherein it was held that,

Universal elementary education as a constitutional goal and obligation is a salutary principle and while interpreting the provisions of the RTE Act, 2009, Article 21A has to be the guiding principle.

Supreme Court in Jindal Stainless Ltd. v. State of Haryana, (2017) 12 SCC 1 held that,

“…the Constitution being a living and dynamic document ought to receive a dynamic and pragmatic interpretation that harmonizes and balances competing aims and objectives and promotes attainment of natural goods and objections.”

RTE Act, 2009 is not a historical Act but an ‘always speaking statute’ which intends to achieve social, economic and political equity and human progress over a period of time.

Court observed that,

RTE Act, 2009 is not a static but a living and a dynamic document and it ought to receive a pragmatic interpretation.

Consistent with the legislative intent, an updating construction has to be applied to RTE Act, 2009 and the Court of law can deal with a drastically changed situation, like Covid-19 pandemic, even if it was not known or visualized by Parliament when the Act was enacted.

Adding to its’ analysis, Court stated that the new National Education Policy, 2020 prepared by the Government of India states that education is fundamental for achieving full human potential, developing an equitable and just society, and promoting national development.

Why the RTE Act, 2009 does not define the word ‘Education’?

Bench in the present matter was of the view that the RTE Act, 2009 intentionally does not define the word Education as it needs to deal with changes in society as well as technological advances, outbreak of diseases, natural calamities and a broad range of circumstances that are not possible to anticipate in advance.

Concept of synchronous face-to-face real-time online education

The concept of Synchronous Face-to-Face Real Time Online Education like any other alternate means/methods of dissemination of education, in that sense, is covered under the RTE Act, 2009.

The teaching through online means is in accordance with the RTE Act, 2009 requirements.

Adding to the above, the Court stated that at the present, the neighborhood schools are still open but the physical classrooms are closed and the mode of providing education has changed.

Court is of the view that tuition fees are payable towards imparting education and not for a lien on a seat. Accordingly, the word Education includes Synchronous Face-to-Face Real Time Online Education and respondent schools are estopped from contending to the contrary.

Differential Fee Structure

Section 12(2) of the RTE Act, 2009 unequivocally proves the existence of a differential fee structure amongst private unaided schools and consequently, differential methods/means of dissemination of instructions amongst the private schools.

Further, the Court added that just as private schools are free to adopt the mode of the method of imparting education they feel the most appropriate, the government schools also have similar freedom and flexibility.

There is neither any statutory obligation under the RTE Act, 2009 nor any recommendation by any statutory authority like State Academic Authority that the Synchronous Face-to-Face Real Time Online Education is the only suitable option during a pandemic.

High Court also opined that in view of the geographical location of a school or non-availability of technologically savvy teachers or poor availability of electricity or lack of internet penetration in the neighbourhood, it may also not be appropriate for a school to opt for Synchronous Face-to-Face Real Time Online Education.

There has to be one common minimum level/standard of impartation of education for all schools. Further, the said school has to then ensure that the same is uniformly adopted and followed sans any discrimination.

Bench opined that

Synchronous Face-to- Face Real Time Online Education is neither a core nor a non-derogable facet of either Article 21A of the Constitution or the RTE Act, 2009.

High Court was of the view that it cannot be said that the education being provided by GNCTD schools does not satisfy the basic minimum required level of impartation of education in the present extraordinary scenario.

Private Unaided Schools

The tuition fee charged by the private unaided schools is governed and regulated by the DSE Act and the same does not include expenses on devices such as laptops, phones, high-speed internet at children‟s homes, etc.

Even though the cost of such gadget/digital equipment which enables access to online learning facilities is not a part of tuition fee, yet it has to be provided free of cost to the EWS / DG students in terms of Section 12(1)(c) read with Section 3(2) of the Act, 2009 as cost of such equipment would be covered under Rule 11 of the Central RTE Rules, 2010 as well as Rule 10 of the Delhi RTE Rules, 2011 and Section 3(2) of the RTE Act, 2009 inasmuch as absence of such equipment ‘will prevent the child from pursuing his or her elementary education‘ at par with other students in the same class in the present scenario.

DIGITAL DIVIDE

To ensure a level playing field and to remedy this digital divide or digital gap or ̳digital apartheid‟ in addition to segregation, if the private unaided school has to bear any additional cost, it must bear it in the first instance with a right to claim reimbursement from the State in accordance with Section 12(2) of the RTE Act, 2009.

GNCTD must consider rewarding the schools that innovate.

Intra-class discrimination, especially inter-se 75% fee paying students viz-a-viz 25% EWS/DG students‟ upsets the ̳level playing field‘ and amounts to discrimination as well as creates a vertical division, digital divide or digital gap or „digital apartheid‘ in addition to segregation in a classroom which is violative of RTE Act, 2009 and Articles 14, 20 and 21 of the Constitution.

High Court directs constitution of a three-member committee within a week comprising Secretary, Education, Ministry of Education, Central Government or his nominee, Secretary Education, GNCTD or his nominee and a representative of respondent No.18 to frame a Standard Operating Procedure (SOP) for identification of standard gadget(s)/equipment(s) as well as the manufacturer/supplier and internet package so that EWS/DG students can access elementary education through digital online means.

Further, the private unaided schools shall file their claims for reimbursement under Section 12(2) to the GNCTD within eight weeks from the date of supply of such gadget(s)/equipment(s).

“To achieve education for all, Digital Education is a major component of the solution, though not a replacement for formal classroom schooling, provided digital- divide is erased from Indian Society.”

Creating a better and resilient elementary education system is increasingly important as a child’s starting point in life determines his/her future.

Concurring with the above view, Sanjeev Narula, J. stated that,

In the present pandemic situation, the shift towards online education has taken place literally overnight, and without much deliberation. One could argue that the unprecedented situation warranted such a drastic switch over. Therefore, I do not find any fault with the approach of the schools that have adopted digital technology for imparting education. However, it is necessary to issue a note of caution here so that the modes and methods adapted during this extraordinary time are not seen as the quintessential purpose of the Act.

The scheme of Article 21A and the RTE Act rests on a twofold premise: to prevent financial and psychological barriers from hindering access to primary education of children, and, non-discrimination in the imparting of education.

Reservation for EWS
Children of the socially and economically weaker sections are normally unable to secure an admission in private schools due to their unaffordable fees. The RTE Act seeks to address this gap via section 12(1)(c) which mandates all private schools to reserve 25 per cent of their seats for children belonging to economically weaker sections and disadvantaged group.

DIGITAL ENABLEMENT

Imbalance in the imparting of education due to the non- availability of gadgets, internet connectivity and modes of access, has the potential of pushing the less-fortunate children outside the education system altogether. The digital enablement of EWS students, is thus, in my opinion, absolutely necessary.

The precious right guaranteed by the Constitution of India and the RTE Act has to be replicated in the online environment.

It is the responsibility of the schools and obligation of the State to assist EWS students to overcome all constraints that deprive them of meaningful education.

[Justice for All v. GNCTD, 2020 SCC OnLine Del 1217, decided on 18-09-2020]

Case BriefsHigh Courts

Bombay High Court: M.G. Sewlikar, J., in reference to the judgment pronounced by this Court on 21-08-2020, with regard to the quashing of FIRs again foreign nationals who indulged in Tablighi Jamaat, stated that it agreed with the operative part of the Judgment but does not agree with some reasoning and the reasons has been given now.

In the present order, M.G. Sewilkar, J., lays down the reasons that were reserved.

Bench states that the material on record does not show that the foreign nationals were infected with COVID-19 when they landed in India, neither there is any material of visa conditions being violated.

Further, it adds that,

“Continuation of prosecution against the petitioners in these circumstances would be an abuse of process of Court.”

Therefore, M.G. Sewlikar, J. accepted the reasons laid down in the earlier Judgment except for the following observations:

“35) There were protests by taking processionse holding Dharana at many places in India from atleast from prior to January 2020. Most of the persons participated in protest were Muslims. It is their contention that Citizenship Amendment Acte 2019 is discriminatory against the Muslims. They believe that Indian Citizenship will not be granted to Muslim refugees and migrants. They were protesting against National Registration of Citizenship (NRC). There were protests on large scale not only in Delhie but in the most of the States in India. It can be said that due to the present action taken fear was created in the minds of those Muslims. This action indirectly gave warning to Indian Muslims that action in any form and for any thing can be taken against Muslims. It was indicated that even for keeping contact with Muslims of other countriese action will be taken against them. Thuse there is smell of malice to the action taken against these foreigners and Muslim for their alleged activities. The circumstances like malice is important consideration when relief is claimed of quashing of F.I.R. and the case itself.”

Hence, he opined that the above-stated observations are outside the scope of the petitions and quashed the FIRs and Chargesheets. [Konan Kodio Ganstone v. State of Maharashtra,  2020 SCC OnLine Bom 877, decided on 27-08-2020]


Also Read:

Bom HC “smells malice” in State action against Tablighi Jamaat foreign nationals; Quashes all FIRs; Makes scathing observations against “media propaganda”  

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]

Supreme Court of The United States
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]

Kerala High Court
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]