Case BriefsForeign Courts

Supreme Court of Canada: A nine-Judge Bench sided 7:2 against the Trinity Western University (TWU) and upheld the decision of the Law Societies of British Columbia and Ontario in not granting approval to Trinity Western University for the establishment of law colleges both at British Columbia and Ontario.

TWU was a private Christian University which wanted to establish law colleges where all the students and faculty have to follow a code of conduct, ‘covenant’, that prohibits sexual intimacy except between a married man and a  woman. TWU applied for approval of its proposed law colleges before the Law Societies of British Columbia and Ontario. However, the said Law Societies did not grant such approval. TWU challenged the non-grant of approval terming the Law Societies’ decision as violating freedom of religion and other rights under the Charter of Rights and Freedom. In British Columbia, the Supreme Court ruled for TWU and in Ontario, Courts ruled for the Law Society. Thus, the matter finally reached the Supreme Court.

The majority of judges at the Supreme Court ruled in favour of the Law Societies. The question before the Court was whether the decision of the Law Societies was reasonable? The Court opined that in order to be considered reasonable, the decision must strike balance between religious rights of TWU community and public interest. It was observed that ‘public interest’ included promoting equality by ensuring equal access to the legal profession, supporting diversity within the bar, and preventing harm to LGBTQ law students. Further, the Law Societies were not stopping anyone from following his or her own religious beliefs; they only prevented TWU from enforcing beliefs on other students of the law college community. The Court said that the decisions did not seriously limit anyone’s religious freedom; the benefits of protecting public interest were important and the limitation in religious rights was minor. The Court held that both the decisions reflected a proportionate balance and were therefore reasonable. Beverley McLachlin, CJ. emphasised that approving the proposal of TWU would condone discrimination against LGBTQ people based on sexual orientation. Malcolm Rowe, J. observed that the TWU wanted the Law Societies to approve a law college where students would be forced to follow Evangelical Christian beliefs, whether they shared such beliefs or not; freedom of religion protects the right to believe in whatever one chooses and to follow those beliefs; but,  it does not include right to force such beliefs on others. According to the Hon’ble Supreme Court, TWU’s claim fell outside the scope of freedom of religion as protected by the Charter. Accordingly, the appeal was dismissed upholding the decision of the Law Societies not to grant approval for the law college as proposed by TWU. [Trinity Western University v. Law Society of Upper Canada, 2018 SCC OnLine Can SC 11: 2018 Supreme Court Cases 33, decided on 15-6-2018]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench comprising of Rajiv Sharma and Lok Pal Singh, JJ. allowed a writ petition directing the Central Government to establish a regional bench of the Armed Forces Tribunal in the State of Uttarakhand.

The petition was filed by ex-servicemen, a practicing advocate. He demanded the establishment of a permanent bench of the Armed Forces Tribunal in the State of Uttarakhand. According to the petitioner, it was difficult for the serving as well as retired servicemen to have access to the Armed Force Tribunal at Lucknow. It is noteworthy that the Lucknow bench was established in the year 2009 with jurisdiction over the States of Uttar Pradesh, Madhya Pradesh, Chhattisgarh, and Uttarakhand. Later, in 2016, a regional bench was established at Jabalpur with jurisdiction over Madhya Pradesh and Chhattisgarh. It was submitted that a total of 220 cases of the Uttarakhand State were pending before the regional bench at Lucknow. Thus, the petitioner sought the prayer as mentioned hereinabove.

The High Court noted that the underlying principle of Armed Force Tribunal Act 2007, is to provide access to justice within a reasonable cost to the service personnel. Further, the largest number of service personnel hailed from the State of Uttarakhand. Section 30 of the Act bars the jurisdiction of all civil courts as well as the high courts in the service matters of the servicemen. There were 220 pending cases from the State, and this number seemed to be less as many cases including those by the widows of the service personnel must have never reached the bench at Lucknow since it is difficult for many people to reach the bench at Lucknow, given the geography and difficult terrain of the State. The High Court observed access to speedy justice is a fundamental right under Article 21 of the Constitution. Armed Forces Tribunal had been constituted to fortify the trust and confidence among members of the three services in the system of dispensation of justice in their service-related matters. The servicemen have a right to approach the Tribunal for adjudication of their service matters at a reasonably accessible place. The sacrifices made by the armed forces personnel during active war and peace could not be forgotten. The society has a duty to ensure that their grievances are redressed immediately. Having observed thus, the High Court directed the Central Government to establish a regional bench of the Armed Forces Tribunal in the State of Uttarakhand, at an appropriate place. [Lalit Kumar v. Union of India, 2018 SCC OnLine Utt 579, dated 12-06-2018]

Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench comprising of Rajiv Sharma and Lok Pal Singh, JJ., directed the State Government to start the National Law University (NLU) in the State within three months from the date of judgment and to run the University from the government buildings or by hiring a private accommodation. Court further mentioned that the first academic session shall start from September 2018 and necessary permission shall be obtained.

The National Law University of Uttarakhand Act, 2011 (Uttarakhand Act No.11 of 2011) has been promulgated and came into force but despite that, the State Government had failed in establishing the NLU. As per Section 3(4) of the Act, the Head Office of the University shall be at Bhowali, Nainital.  However, the state asserted that the land required for the establishment of the University was not available at Bhowali. The petitioner suggested that if the land is not available at Bhowali, there is about 1500 acres of land available at G.B. Pant University, Pant Nagar, and District Udham Singh Nagar.

The Court collected information in this regard with the assistance of the District Magistrate, Udham Singh Nagar and found that sufficient land was available. The land available was more than 1800 acres whereas the land required for the University was only 10 acres. Court also noted that it may be that the land was not available at Bhowali but it is difficult to believe that the land is not available in the entire State for the establishment of the University. It was clarified by the Court that it was not dealing with the policy matter but with an enactment providing for the establishment of University under Section 3 of the Act. It was further observed that the primary objective of the University was vanished due to the reason of ‘red-tapism’.

Therefore the Hon’ble Court directed the State to frame the regulations within a period of one month along with the appointments in the University including those of teaching faculty and ministerial staff in a span of 3 months.[Bhupal Singh Bhakuni v. State of Uttarakhand, 2018 SCC OnLine Utt 563, order dated 19-06-2018]