Canada SC
Case BriefsForeign Courts

Canada Supreme Court: A full bench comprising, Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer, and Jamal JJ unanimously upheld the framework laid down in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 and stated that in cases wherein constitutionality of the law is challenged by Public Interest Organization on behalf of community members or marginalized groups who lack money, status, and privileged access to justice, the Court should adopt a flexible and discretionary approach to public interest standing. Therefore, it was held that the Council of Canadians with Disabilities (hereinafter The Council) meets the test for public interest standing and can continue the lawsuit.

Facts and Contentions of the case

In 2016, The Council and two individuals challenged the constitutionality of British Columbia’s mental health legislation. The law allows doctors to administer psychiatric treatment to patients with mental disabilities without their consent or the consent of someone else on their behalf. It was submitted before the Court that such treatment without their consent violates sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms. Section 7 guarantees everyone the right to life, liberty, and security of the person and Section 15(1) guarantees everyone has the right to be treated equally without discrimination, including based on mental or physical disability.

In 2017, the two individuals withdrew their case, leaving the Council as the only plaintiff. Therefore, the Council pleaded that it should be granted the status of public interest standing and allowed to continue the lawsuit. The trial court held that the Council cannot be granted the status of public interest standing.

Observations made by the Court

The bench made the following observation while writing the unanimous judgment:

  • The decision to grant or deny public interest standing is discretionary. The Downtown Eastside framework mandates that in exercising its discretion, a court must assess and weigh three factors: (i) whether the case raises a serious justiciable issue; (ii) whether the party bringing the action has a genuine interest in the matter; and (iii) whether the proposed suit is a reasonable and effective means of bringing the case to court.
  • Courts must consider the purpose that justifies grantingstanding in their analyses and is giving effect to the principle of legality, therefore, ensuring access to justice. The goal in every case is to strike a meaningful balance between the purposes that favour granting standing and those that favour limiting it.
  • There cannot be a rule of law without access, otherwise, the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice. Access to justice is symbiotically linked to public interest standing: it provides an avenue to litigate the legality of government action despite of social, economic, or psychological barriers which may preclude individuals from pursuing their legal rights.
  • Courts may consider the plaintiff’s capacity to bring the claim forward, whether the case is of public interest, whether there are alternative means to bring the claim forward, and the potential impact of the proceedings on others. To evaluate capacity, courts should examine the plaintiff’s resources, expertise, and whether the issue will be presented in a sufficiently concrete and well‑developed factual setting. Though courts cannot decide constitutional issues in a factual vacuum, public interest litigation may proceed without a directly affected plaintiff.
  • A strict requirement for a directly affected plaintiff would pose obstacles to access to justice and would undermine the principle of legality. It would also raise procedural hurdles that would deplete judicial resources. The participation of directly affected litigants is accordingly not a separate legal and evidentiary hurdle in the discretionary balancing.

Based upon the aforementioned observations, the Bench unanimously held that the Council meets the three-part test for public interest standing. Firstly, it raises an important issue: the Charter rights of people with mental disabilities. Secondly, the Council has a genuine interest in the challenges faced by people with mental disabilities. Thirdly, its claim is a reasonable and effective way to bring the matter before the courts. In the light of this conclusion, Chief Justice Richard Wagner said that

“The granting of public interest standing in this case “will promote access to justice for a disadvantaged group who has historically faced serious barriers to bringing such litigation before the courts”

[British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC OnLine Can SC 2, decided on-23-06-2022]

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud* and Vikram Nath, JJ has upheld the Kerala High Court verdict that had held that the Central Excise and Customs Commissionerates Inspector (Central Excise, Preventive Officer and Examiner) Group ‘B’ Posts Recruitment Rules 2016 (RR 2016) withdrawing the Inter-Commissionerate Transfers (ICTs) is not invalid as ICTs would violate the unique identity of each cadre envisaged under Rule 5 of RR 2016.

The Court, however, left it open to the Union of India to revisit the policy to accommodate posting of spouses, the needs of the disabled and compassionate grounds.

RR 2016 vis-à-vis CBIC Circular dated 20.09.2018

While clarifying that under RR 2016, there is no specific provision allowing for ICTs, the circular notes that Rule 5 stipulates that each CCA will have its own separate cadre, unless otherwise directed by the Board. Rule 5 has been construed to mean that given that each CCA is to have its own cadre, ICTs, which involve a transfer from one Commissionerate to another would no longer be permissible and accordingly all orders for such transfers which were issued on or after 26 December 2016 (the date on which RR 2016 were notified) would be non-est. The circular, however, allows that in exceptional circumstances, depending upon the merits of each case and on extreme compassionate grounds, such transfers may be allowed on ‘case to case on loan basis’ keeping in view the administrative requirements of the transferee and the transferred CCAs. However, the maximum tenure of such transfer has been fixed as three years which can be extended by a further period of two years.

Three Grounds on which the Circular was challenged

Ban on ICTs with respect to different classes of posts within the same service is discriminatory between Group A, B and C employees

The Court refused to accept this ground as there is no material on record to indicate that all three groups are pari materia with each other. It may be the case that the instances of abuse of ICTs is higher with respect to employees in Group B, as opposed to the other groups. Such decisions are taken keeping in mind the strength of the service and the needs of the administration

Gender Equality

The provision which has been made for spousal posting is in that sense fundamentally grounded on the need to adopt special provisions for women which are recognized by Article 15(3) of the Constitution. The manner in which a special provision should be adopted by the State is a policy choice which has to be exercised after balancing out constitutional values and the needs of the administration. But there can be no manner of doubt that the State, both in its role as a model employer as well as an institution which is subject to constitutional norms, must bear in mind the fundamental right to substantive equality when it crafts the policy even for its own employees.

“The State while formulating a policy for its own employees has to give due consideration to the importance of protecting family life as an element of the dignity of the person and a postulate of privacy. How a particular policy should be modulated to take into account the necessities of maintaining family life may be left at the threshold to be determined by the State. In crafting its policy however the State cannot be heard to say that it will be oblivious to basic constitutional values, including the preservation of family life which is an incident of Article 21.”

Equal treatment of disabled persons

The Rights of Persons with Disabilities Act 2016 is a statutory mandate for recognizing the principle of reasonable accommodation for the disabled members of society. The formulation of a policy therefore, must take into account the mandate which Parliament imposes as an intrinsic element of the right of the disabled to live with dignity.

The circular dated 20 September 2018 has taken into account, what it describes “exceptional circumstances” such as “extreme compassionate grounds”. Leaving these categories undefined, the circular allows for individual cases to be determined on their merits on a case-by-case basis, while prescribing that transfers on a “loan basis” may be allowed subject to administrative requirements with a tenure of three years, extendable by a further period of two years.

While proscribing ICTs which envisage absorption into a cadre of a person from a distinct cadre, the circular permits a transfer for a stipulated period on a loan basis. Whether such a provision should be suitably enhanced to specifically include cases involving (i) postings of spouses; (ii) disabled persons; or (iii) compassionate transfers, is a matter which should be considered at a policy level by the Board.

[SK Nausad Rahaman v. Union of India, 2022 SCC OnLine SC 297, decided on 10.03.2022]

*Judgment by: Justice Dr. DY Chandrachud


For appellants and Intervenors: Senior Advocates Maninder Singh, Vibha Datta Makhija, PN Ravindran, Narender Hooda and Rana Mukherjee, and advocates Rishi Kapoor and Umakant Misra

For respondents: KM Nataraj, Additional Solicitor General