High Court Round UpLegal RoundUpTribunals/Regulatory Bodies/Commissions Monthly Roundup

“For a contract to be enforceable, the restraint of trade clause must be reasonable.”

[Rajesh Kumar Gandhi v. Mukesh Dutt]


Read the interesting picks from the stories eported in first week of February.


Delhi High Court


Baazi v. WinZo| Trademark is used by a manufacturer or service provider to distinguish products from those of competitors: Here’s how Winzo appeared dishonest and unfair in adopting Baazi

Explaining the significance of a trademark, Asha Menon, J., observed that,

When people are satisfied with the products supplied by a manufacturer or service provider, they buy them on the basis of the trade mark and over time it becomes popular and well known. Thus, the use of a similar or identical trademark by a competitor in the same product would lead unwary customers to believe that it originates from the same source.

Read full report here…

Whether a ‘blade’ would be covered under S. 397 IPC as a deadly weapon? Del HC explains in view of settled position of law

Mukta Gupta, J., explained under what circumstances would Section 397 of penal Code, 1860 would be attracted.

Rae full report here…

Court under maintenance proceedings under S. 125 of CrPC, can usurp jurisdiction of Civil Courts? Del HC decides

Chandra Dhari Singh, J., decided a maintenance case wherein the marital status of the parties was the crux of the matter and expressed that,

“…there is no straight jacket formula for judging the validity of the marriage between the parties.”

Read full report here…


Kerala High Court


Is not taking treatment for mental illness to bring out a peaceful family atmosphere a form of cruelty and thus, a ground for divorce? Kerala HC answers

In an interesting case the Division Bench of A.Muhamed Mustaque and C.R. Sophy Thomas, JJ., held that not taking treatment for mental illness in order to bring out a peaceful and harmonious family atmosphere can also be counted as cruelty to the persons at the receiving end. Upholding the Family Court’s order granting divorce on the ground of cruelty, the Bench remarked,

“There is no merit in preserving intact a marriage, when the marital tie becomes injurious to the parties. When there is no rose, and only thorns left, and there is no scope for the plant to sprout again, there is no meaning in watering the same, knowing that it is dead forever.”

Read full report here…


Andhra Pradesh High Court


LGBTQ+ community’s right to reservation; Can a transgender claim to be appointed by reservation in spite of failure to secure minimum cut off marks in screening test? AP HC answers 

In a significant case wherein, a transgender had approached the Court seeking benefit of reservation for appointment in police department, M. Satyanarayana Murthy, J., denied to issue direction to the State in favour of the petitioner. The Bench, however, remarked,

“The State is unconscious of the directions issued by NALSA and failed to provide a specific column meant for gender identity for transgender in the proforma of application in the Notification dated 01.11.2018 and did not provide any reservation to transgenders, as they are socially and educationally backward and not in a position to compete with ordinary men and women.”

Read full report here…


National Company Law Tribunal


Operational Creditor is under obligation to recover money from its client and not agent: NCLT decides while dismissing a petition filed under S. 9 IBC

The Coram of H.V. Subba Rao (Judicial Member) and Chandra Bhan Singh (Technical Member) dismissed a petition filed under Section 9 of the IBC while noting that no operational debt existed under Section 5(8) and expressed that,

“Operational Creditor being the principal was always under obligation to recover the money from the client and not from his agent unless the agent failed to perform his duties.”

Read full report here…


Tis Hazari Court


For a contract to be enforceable, restraint of trade clause must be reasonable: Post-termination non-compete clauses are permissible in employment contracts under S. 27 of Contract Act? District Court explains

Holding that, post-termination non-compete clauses in employment contracts are “restraint of trade” and it is impermissible under Section 27 of the Act, Richika Tyagi, C.J-02, expressed that such agreements of restraint are vid because of being unfair and depriving an individual of his or her fundamental right to earn a living.

Read full report here…


Information Commissioner’ Office


Unsolicited marketing calls causing distress to people and disregard to their privacy rights: Would it lead to imposition of monetary penalty? Detailed decision of Information Commissioner’s Office

Andy Curry, Head of Investigations, on noting serious contravention of regulations 21 and 24 of the Privacy and Electronic Communication Regulations 2003 (PECR) has issued Home2sense Limited with a monetary penalty under Section 55A of the Data Protection Act, 1998.

“Home2sense’s dismissive and troubling response, coupled with its failure to disclose any details of its CDRs or any other information which might assist the Commissioner’s investigation shows, in the Commissioner’s view, a complete disregard for the privacy rights of the individuals whom it sought to contact.”

Read full report here…

Case BriefsHigh Courts

Andhra Pradesh High Court: In a significant case wherein, a transgender had approached the Court seeking benefit of reservation for appointment in police department, M. Satyanarayana Murthy, J., denies to issue direction to the State in favour of the petitioner. The Bench, however, remarked,

 

“The State is unconscious of the directions issued by NALSA and failed to provide a specific column meant for gender identity for transgender in the proforma of application in the Notification dated 01.11.2018 and did not provide any reservation to transgenders, as they are socially and educationally backward and not in a position to compete with ordinary men and women.”

 

Factual Matrix

In the instant case, one Matam Gangabhavani, a transgender approached the Court seeking to declare Notification vide Rc.No.216/R&T/Rect.1/2018 dated 01-11-2018 as illegal, arbitrary and violative of Articles 14, 15, 19 and 21 of the Constitution as it did not make any provision for reservation of appointment of transgender persons contrary to the decision of the Supreme Court in National Legal Services Authority v. Union of India, (2014) 5 SCC 438. The petitioner also urged for a direction to the respondents-Police Recruitment Board to make appropriate provision for transgender persons and further direct the respondents to appoint the petitioner on the post of Stipendiary Cadet Trainee Sub-Inspector of Police on the vacant post, kept apart for the petitioner in terms of High Court order dated 13-02-2018.

 

The petitioner, a male by birth, underwent Sexual Reassignment Surgery in the year 2003. The case of the petitioner was that pursuant to the recruitment notification, the petitioner applied for the post of Stipendiary Cadet Trainee, however since there were only two categories provided for disclosure of gender namely, “Male” and “Female” the petitioner was forced to mention identity as female while registering for the examination.

 

Though, the petitioner appeared for the first round of recruitment process i.e Preliminary Written Test, could not obtain minimum required marks. Therefore, the petitioner claimed benefit of reservation by relying on the decision of NALSA v. Union of India (2014) 5 SCC 438 by contending that there is reservation for various categories of castes, yet no reservation is provided for transgenders category; despite the transgenders being the most disadvantaged class who cannot compete with male or female genders. Finally, it was contended that, when the petitioner was the sole transgender appeared for the examination, though identifying as female, the petitioner must be selected by providing reservation in the light of Transgender Persons (Protection of Rights) Act, 2019.

 

Case before Central Administrative Tribunal

The petitioner filed O.A.No.23 of 2019 before Andhra Pradesh Administrative Tribunal challenging the impugned Notification, however the same was dismissed on the following grounds:

“a) That the recruitment as per the notification is being proceeded with respect to men and women vacancies only;

b) The notification is not a general notification for applications from all gender and that the notification is gender specific;

c) When the notification for recruitment is gender specific, a transgender person is not entitled to compete for the said post along with men and women.

d) The reliefs claimed in O.A.No.23 of 2019 relate to decisions to be taken by the Government concerned in the Constitution of India as well as specific laws relating to recruitment and appointment to public post.”

 

Observations and Opinion

Observing that concept of “proportional equality” expects the States to take affirmative action in favour of disadvantaged sections of the society within the legal framework of liberal democracy, the Bench stated that the petitioner being a transgender was entitled for proportional equality as the State is expected to take affirmative action in favour of disadvantaged section of the society, and the transgenders are cursed by everyone; living in distressed condition and are being put to harassment in different ways, both physically, mentally and sexually by different persons. The Bench added,

“More so, their number is minimum in the State, but they are not being provided proportional equality in the employment and are totally neglected by the State without providing even a column in the application form for gender identity of transgender, thereby, it amounts to denial of an opportunity in employment treating them unequals with men and women.”

 

Therefore, the Bench held that such discrimination of transgender from men and women could be said to be arbitrariness, being opposed to reasonableness, and antithesis to law. Hence, the Bench stated, failure to provide sufficient opportunity in the employment by providing a specific column for identity of third gender in all employment notifications, treating them as equals with men and women and failure to provide employment to them, though they are eligible is nothing but arbitrariness in the State’s action.

“Though, transgender is a person recognized in the epics, the lawmakers, including the Constitutional framers did not take note of their existence and treatment of transgenders on par with others.”

 

Whether the Notification was Illegal and Arbitrary?

Since the impugned Notification was issued based on the subsisting rules of reservation in the State, strictly adhering to the subsisting rules, the Bench held that the notification could not be declared as illegal and arbitrary. Even to construe that the respondent violated the direction issued by the Supreme Court in NALSA v. Union of India (2014) 5 SCC 438, the direction was only to take steps for providing reservation to transgenders based on their social and educational backwardness, it was only a positive obligation on the State and in the absence of any steps taken by the State, failure of its instrumentalities to provide reservation to transgenders did not make the notification impugned in this writ petition invalid. At best, such failure may attract contempt being filed before the competent court.

Hence, the Bench held that there was no ground to declare the impugned notification as illegal or arbitrary.

 

Analysis and Findings

In NALSA v. Union of India (2014) 5 SCC 438., the Supreme Court had directed the Centre and State Governments to take steps to provide reservations to transgenders in employment and to take steps to treat the transgenders as Socially and Educationally backward Classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments. Hence, the direction issued by the Supreme Court was only to the extent of taking steps to treat transgenders as socially and educationally backward classes of citizens, but not for creating reserving particular percentage of posts to transgenders.

 

Though a clarification was issued by the Principal Secretary to Government, Home (Legal.II) Department vide Memo.No.830231/Legal.II/A1/2020 dated 29-09-2020, for appointment of meritorious, eligible transgender person either against a woman vacancy or man vacancy, based on merit, since there are no reservations for transgenders, the Bench held that the aforementioned Memo would not extend any such benefit to the transgender persons in terms of the judgment in NALSA v. Union of India (2014) 5 SCC 438.

 

Differentiating the case of K. Pritika Yashini v. Tamil Nadu Uniformed Services Recruitment Board, 2015 SCC OnLine Mad 11830, wherein a minor relaxation was given to the transgender woman who had qualified in all the tests, the Bench stated that the same had no application to the case of the petitioner for the reason that the petitioner did not qualify herself even in the preliminary examination, having secured 28% in Paper-I and 21% in Paper-II. Opining that if, for any reason, the petitioner secured marks and got through the preliminary examination and if there is any variation in the physical tests, the principle laid down in the above judgments could be applied, the Bench stated,

“The intellectual levels of men, women and transgender may vary to a little extent. But the Rules did not permit appointment of transgender without securing minimum qualifying mark.”

 

Further, even the Transgender Persons (Protection of Rights) Act, 2019 and Transgender Persons (Protection of Rights) Rules, 2020 are silent regarding provision for reservation in public employment or any government establishments to transgender persons. Therefore, the Bench held that the Court could not issue any direction to provide reservation to the petitioner based on sex or social status, more so, when a direction was issued by the Supreme Court to extend all kinds of reservation in cases of admission in educational institutions and for public appointments.

 

Verdict

Considering that the direction issued by the Supreme Court in NALSA v. Union of India (2014) 5 SCC 438 is suffice to provide reservation in cases of admission in educational institutions and for public appointments, the Bench refused to issue any direction to the State to provide reservations to transgender. However, the directions were made to the State to study the representation of transgenders for public employment, their number in the State, benefits extended to them without discriminating from men and women and provide necessary reservations if they are not represented adequately in the public employment.

Further, since the minimum marks were not fixed based on gender, but based on social status, more particularly, their backwardness and inadequacy of their representation in the public employment, the Bench denied to issue direction to the respondents for selection of the petitioner as Stipendiary Cadet Trainee Sub-Inspector. Consequently, the petition was dismissed. [Matam Gangabhavani v. State of Andhra Pradesh, 2022 SCC OnLine AP 200, decided on 21-01-2022]

Appearance by:

For the Petitioner: M Solomon Raju, Advocate

For the State: Additional Advocate General II


Kamini Sharma, Editorial Assistant has out this report together

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. K. Mishra and Savitri Ratho, JJ. allowed a same-sex couple to live in together and to provide them with all kinds of protection as enshrined in Part III of the Constitution.

The facts are that the petitioner who was originally a female has now chosen by the right of self-determination to be identified as he/him before the court. The petitioner and the daughter of respondent  5 are major who fell in love and are now living together as a couple with mutual consent since 2017. But, the respondents have forcibly taken her from the petitioner’s resident and now want to marry her off to someone else against her will. Hence this instant writ petition of habeas corpus under Articles 226 and 227 have been filed to demand the appearance of his partner before the court.

Counsel Clara D’ Souza, S. Soren and H.B. Dash represented the petitioner’s side and Counsel Saswata Pattnaik and Arun Kumar Budhia represented the respondent’s side.

The court spoke to the petitioner’s partner who agreed to the version of the petitioner and prayed the court to allow her to live with the petitioner at the earliest.

The Court relied on various judgments, important being National Legal Services Authority v. Union of India, (2014) 5 SCC 438 and held:

“Everyone, regardless of sexual orientation or gender identity, is entitled to the enjoyment of privacy without arbitrary or unlawful interference, including with regard to their family, home or correspondence as well as to protection from unlawful attacks on their honour and reputation. The right to privacy ordinarily includes the choice to disclose or not to disclose information relating to ones sexual orientation or gender identity, as well as decisions and choices regarding both ones own body and consensual sexual and other relations with others.”

 The court also relied on Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1 and Navtej Singh Johar v Union of India, (2018) 10 SCC 1 wherein the law has been settled regarding the right of a person for self-determination of his/her sex/gender and consequently the right to have a live-in relationship.

 In the case of Shakti Vahini v Union of India, (2018) 7 SCC 192 it was observed

“The choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice. True it is, the same is bound by the principle of constitutional limitation but in the absence of such limitation, none, we mean, no one shall be permitted to interfere in the fructification of the said choice.”

 Keeping in mind the observations stated above, the court reiterated that the couple has a right to have a live-in relationship with a person of his choice even though such person may belong to the same gender as the petitioner.

In view of the above, writ petition stands disposed off.[Chinmayee Jena v. State of Odisha, 2020 SCC OnLine Ori 602, decided on 24-08-2020]


*Arunima Bose, Editorial Assistant has put this story together

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Arun Monga, J., addressed a matter wherein, two girls were in a live-in relationship and were constantly receiving serious threats from their families, due to which they prayed for protection.

Petitioners sought directions to the official respondents to protect their life and liberty as they apprehended threat at the hands of private respondents 4 to 10.

Both the petitioners are girls and they are both major having mutual liking for each other. They both have been in live-in relationship for the past 6 months.

Petitioners counsel further contends that their relationship is not in the nature of marriage as they belong to same sex. They have been receiving serious threats from their family members.

Bench noted from the contents of the petition that both the petitioners have prompted to file the instant petition thinking that live in relationship between the same sex as a couple is not a criminality.

Social ethos, outlook and the philosophy appears to be evolving amongst gay couples so as to gather courage and openly come out of their closets, even though gay marriage is not yet legitimate as per the applicable marriage laws in the country. And, therefore, the live in relationships.

Court added that, What is perhaps coming in the way of petitioners is the social unacceptability of their relationship by their parents/family members, owing to which they are living under constant fear for the reasons stated in the petition which are not being repeated for the sake of privacy and brevity.

Petitioners are entitled to protection of their lives as envisaged under Article 21 of the Constitution of India, regardless of the relationship between them.

Legitimacy of their relationship with each other, is of no consequence viz-a-viz their right to life and liberty.

Court without commenting on the legality of the relationship between the petitioners or otherwise, directed the Senior Superintendent of police, Mohali to take necessary steps to grant protection of life and liberty to the petitioners. [Paramjit Kaur v. State of Punjab, 2020 SCC OnLine P&H 994 , decided on 20-07-2020]

Case BriefsForeign Courts

Kenya of High Court, Nairobi: A Full Bench of Roselyne Aburili, E.C. Mwita and John M. Mativo, JJ. dismissed a petition regarding the removal of the ban on same-sex relations.

The petitioner had challenged the constitutionality of Sections 162 and 165 of the Penal Code, 1930 which prohibited unnatural offences in the form of carnal intercourse against the order of nature and indecent practices between males, whether in public or in private. The petitioners contended that the two provisions violated the right to privacy and dignity of the Kenyans guaranteed under the Constitution of Kenya as it made the Lesbians, Gay, Bisexuals, Transgender, Intersex and Queer (LGBTIQ) community in Kenya perpetually exposed to risk of arrest, prosecution, denial of liberty, intimidation and mistreatment. The impugned penal provisions were stated to be violative of Article 27 (equality and freedom from discrimination), Article 28 (human dignity), Article 29 (freedom and security of the person), Article 31 (privacy), Article 32 (freedom of conscience, religion, belief and opinion), Article 43 (highest standard of health) and Article 50 (the right to fair hearing).

The petitioner also argued that the petition neither concerns same-sex marriage, nor does it seek to legalize same-sex marriage; and, if successful, it will not have the effect of mandating or requiring Kenya to recognize same-sex marriage. He maintained that the petition only challenged the criminalization and severe punishment provided under the criminal law for the fundamental and inborn characterization of their sexual orientation.

The counsel for the petitioners argued that Section 162 of the Penal Code did not define the phrases ‘unnatural offences’, ‘against the order of nature’; and it was unclear whether the phrases meant sexual intercourse or include oral, anal, vaginal sex, or whether they include any other contact with the genital organ of another person. Regarding Section 165 of the Code, it was submitted that the phrases ‘indecency with another male person’ and ‘any act of gross indecency with another male person’ were unclear. The counsels placed relied on the cases of US, UK, Ireland, South Africa, and also on Indian cases Naz Foundation v. Govt. (NCT of Delhi), (2016) 15 SCC 619, decided by the Delhi High Court and Navtej Singh Johar v. Union of India, (2018) 1 SCC 791 decided by the Supreme Court of India, where the constitutionality of Section 377 of the Indian Penal Code, 1860 was under challenge. The said Section 377  was similar to the disputed Sections herein and was also a colonial-era law that criminalized homosexual acts as an unnatural offence. The counsel also stated that many other countries around the world had decriminalized homosexuality.

The Court opined that the phrase ‘carnal knowledge’ had been judicially defined in Gaolete v. State to mean “penetration through the anus that makes the intercourse ‘against the order of nature’ and therefore provides the other element of the offence.” It was further observed that ‘unnatural offence’ was defined in Law Dictionary; and ‘indecent act’ was defined under Section 2 of the Sexual Offences Act, 2006. Thus, the Court refused to strike down the impugned provisions as unconstitutional on the basis of ambiguity and vagueness, opining that the impugned phrases had been clearly defined in law dictionaries and in a catena of judicial pronouncements.

While dealing with impugned provisions’ consonance with Constitution, it was opined where there is a legitimate reason, then, the conduct or the law complained of cannot amount to discrimination. It was held that the impugned provisions apply equally to heterosexuals and was not targeted at a particular community (LGBTIQ herein).

The Court further held that petitioners had not produced any tangible evidence to support the alleged violation of the Constitution. It was opined that he who makes an allegation, has the onus to prove every element constituting his or her cause of action, and this includes sufficient facts to justify a finding that his rights have been violated.

The Court opined that the foreign judgments relied on in support of their case by the petitioners, were only of persuasive value and caution must be exercised while placing reliance on foreign jurisprudence in cases alleging infraction of Constitutional rights. The Court observed that decriminalizing homosexuality would pose a threat to the institution of marriage protected under Article 45 of the Constitution of Kenya, which provided that family was a natural and fundamental unit of society and a necessary basis for social order, and shall enjoy the recognition and protection of the State; and, that, “every adult had a right to marry a person of the opposite sex, based on the free consent of the parties.”  Hence, the contention that the petitioners do not seek recognition of same-sex marriages, did not guarantee the authenticity of the institution of marriage as adopted by the Kenyan society.

In view of the above, the Court upheld the constitutionality of the impugned penal provisions.[EG v. Attorney General, Petition No. 150 of 2016, decided on 24-05-2019]

Case BriefsSupreme Court

Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra, Rohinton Nariman, A.M Khanwillkar, DY Chandrachud and Indu Malhotra, JJ. continue to unravel the path to justice on Section 377 IPC, 1860 on the third day of the proceedings.

Senior Advocate Shyam Divan resumed with his arguments representing ‘Voices against 377’ and started with the explanation towards the positive dimension of Article 14 of the Constitution of India. By placing reliance on Nariman, J. judgment on Triple Talaq, Shayara Bano v. Union of India; (2017) 9 SCC 1 which states “equality before the law” in Article 14 derived from the UK while “equal protection of the law” is from the 14th amendment of US.

‘Equal protection of the law’ connotes positive content of Article 14 whereas ‘Equality before the law’ is the negative aspect.

Shyam Divan also cited Lawrence v. Texas, 539 U.S. 558 (2003) – “The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons”.

He also backed ‘Right to Intimacy’ quoting from South African Constitutional Court that the right to privacy covers right to maintain intimate relations unaffected by the law.

“Supreme Court should not have re-criminalized Section 377 (after Delhi HC struck it down) because of the tremendous adverse impact it has”: Senior Advocate Shyam Divan

Indu Malhotra J. making her stance clear on Section 377 said that ‘Homosexuals face a lot of pressure from parents, society, etc. That is why they turn into bisexuals; it carries huge social ramifications’.

‘It is not just human beings who alone indulge in homosexual acts, many animals also show homosexual behaviour; it is not an aberration but a variation’.

‘This community of LGBT feels inhibited to go for medical aid due to the prejudices against them.’

CJ Dipak Misra observed ‘LGBT themselves feel discriminated because of they are treated differently. They feel stigma because of criminality attached to it.’

Chandrachud, J. ‘We have created a societal environment that creates a discrimination of these individuals. If Section 377 goes let’s hope such societal stigmas change.’

Senior Advocate C U Singh backed his arguments by stating that having faced criminalisation for over 160 years, it is a huge step to strike it down.

‘But whenever there has been historical deep-rooted discrimination, then the State has resorted to affirmative action.’

Further, while concluding his arguments, he stated that “They (LGBT) continue to suffer a disproportionate mental problem because of the stigma attached to it.”

Senior Advocate Ashok Desai began by stating that existence of LGBT community is a part of our culture hence not alien to Indian culture. While talking about the ‘stigma’ he cited an article written by late Leila Seth, J. whose son is a homosexual for whom she said that my son is a criminal as per law after the Delhi HC verdict was reversed by the Supreme Court.

‘Homosexuality is existing in society and civilisation has accepted this.’

‘Same-sex is not selfish. They don’t want to produce children.’

He also argued that the Court needs to recognise the concept of fraternity as the LGBT community is humiliated terribly.

Mr. K. Venugopal submitted that fear of law is used to harass LGBT community. He also states that Section 377 is used as an excuse to impinge on freedom of expression.

Section 377 offers a legal basis to suppress alternate sexuality.”

While submitting his arguments, he also stated that Lord Macaulay while introducing this provision said he does not even want to discuss this provision as according to him it was revolting and odious. On concluding his arguments he cited Lawrence v. Texas, 539 U.S. 558 (2003), the United States Supreme Court judgment which made same-sex marriage in USA legal.

ASG Tushar Mehta appearing for Union of India states that, K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 cannot be interpreted to mean that Section 377 should exclude bestiality.

Mehta urged the Court to stick to the constitutionality of Section 377.

CJ Dipak Misra: ‘Court does not follow majoritarian morality but constitutional morality.’

“We don’t decide Constitutional issues by referendum”, CJ Dipak Misra to another counsel who tried to make arguments based on “popular opinion”.

“Look at some liberal Constitutions. We will point out some countries on the map where you need to look at”. Chandrachud, J. to a counsel arguing in support of Section 377 IPC.

No senior to hold a brief for my side, maybe because of the issue involved’ said George who was appearing for two Christian associations supporting Section 377. “There was a U-turn by the government which causes serious concerns for the public at large“, stated Manoj George appearing for one of the respondents.

Chandrachud, J. stated that it’s not a U-turn, pointing that the Delhi HC judgment wasn’t challenged.

An advocate submitted that private bill on Section 377 got defeated. Court said it doesn’t matter, Section377 can still be assailed on the parameters of Part III.

The Constitution Bench would continue with the arguments on 17-07-2018. [Navtej Singh Johar v. Union of India, WP (Crl.) No. 76/2016, order dated 12-07-2018]

Source: https://twitter.com/TheLeaflet_in

Canada SC
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]