Supreme Court to hear Curative Petition on Decriminalisation of Homosexuality

Dear Colleagues,

Chapter XVI, Section 377 of the Indian Penal Code dating back to 1861, introduced during the British rule of India, criminalises sexual activities "against the order of nature", arguably including homosexual acts.

The section was declared unconstitutional with respect to sex between consenting adults by the High Court of Delhi on 2 July 2009. That judgement was overturned by the Supreme Court of India on 11 December 2013, with the Court holding that amending or repealing Section 377 should be a matter left to Parliament, not the judiciary.

The Supreme Court on 03rd April 14,  agreed to consider the plea for an open court hearing on curative petitions filed by gay rights activists against its verdict criminalizing homosexuality. 

A bench headed by Chief Justice P Sathasivam, before whom the matter was mentioned by senior lawyers appearing for different parties, said that it will go through the documents and consider their plea. 

Curative petition is the last judicial resort available for redressal of grievances in court and it is normally considered by judges in-chamber without granting opportunity to parties to argue the case. 

The petitioners, including NGO Naz Foundation which has been spearheading the legal battle on behalf of Lesbian, Gay, Bisexual, and Transgender (LGBT) community, contended that there was an error in the judgment delivered on December 11 last year as it was based on old law. 

Senior Advocate Ashok Desai said that the judgment in the instant case was reserved on March 27, 2012 but the verdict was delivered after around 21 months by the SC and during this period lots of changes took place including amendment in laws which were not considered by the bench which delivered the judgment.  Senior advocates like Harish Salve, Mukul Rohatgi, Anand Grover and other lawyers supported Ashok Desai and pleaded for an open court hearing.   They submitted that the case should have been heard by the Constitution bench instead of two-judge bench which heard and delivered the verdict on the controversial issue. 

The apex court had earlier dismissed a batch of review petitions filed by the Centre and gay rights activists including noted filmmaker Shyam Benegal against its December 2013 verdict declaring gay sex an offence punishable upto life imprisonment. 

Related News in Times of India -  Gay sex: SC agrees to consider curative petition in open court

Overweight airhostesses to get back their jobs with backwages

Is fat fit? In certain circumstances, yes, the Delhi high court has said. The court said that the question, is not raised in the sense of physical well being. Accumulated medical wisdom would have us believe that weight brings with it several health related problems; such as, hyper tension, cardio vascular disease, etcetera. What has to be thus, kept in mind is that, the question posed is, contextual and not generic.

Writing a common judgement for three cases one each by Sangita Garg, Punita Bakshi & Sona Chawla against the NACIL (National Aviation Company of India Ltd.), Justice Rajiv Shakdher, in this important ruling  directed Indian Airlines (now NACIL) to reinstate three air hostesses who had been dismissed for gaining weight with full backwages and consequential benefits.

To access the common judgement click here:  Sangeeta Garg Versus Indian Airlines WP(C) 30/ 2010 

Justice Shakdher further observed while ruling in favour of the three women, " It is quite clear that Indian Airlines Ltd has not applied its mind to germane factors before taking a decision to terminate the petitioners' services. The reasons given had no link with the conclusion reached which was to dispense with the services of the petitioners," Justice Shakdher observed while ruling in favour of the three women.

HC directed IA to take back in service the women with full back wages and all consequential benefits, rejecting the argument of the airlines that contract for appointment itself made it clear that excess weight will lead to dismissal.

The women who had joined IA as air-hostesses, were till their termination from service, deployed as ground staff. The airline dismissed them on the ground they failed to maintain weight within the prescribed limits.

On their part, the women didn't seek redeployment as cabin crew but continuance of their present job as ground staff. They argued they were removed summarily without being given a chance to answer the allegations. They further pointed out that facts and circumstances in each of the three cases were different which is why they gained weight. For example one of the petitioners had a medical condition while another was being put to extreme stress by her estranged husband and in-laws.

Defending its decision IA maintained even if the women were medically fit, to continue with their services it could be terminated under the terms of the contract upon their failure to maintain weight as per prescribed limits. It added that indulgence over several years was granted to the women despite which, they were unable to bring their weight within the prescribed limit, leading to their dismissal. IA further argued that it is in travel industry where pleasing appearance, manners and physical fitness was required of members of both sexes. But HC was not convinced, holding in essence that termination from service for employees who were not in active flight duties was too severe an act.

Related Story in Times of India : Air Hostesses sacked for weitht to get back jobs 

Not providing reservation for disabled in Higher Judicial Service amounts to Discrimination - rules Delhi HC

A Division bench of Delhi High Court presided by Justice S. Ravindra Bhat and Justice R.V. Easwar observed that arbitrary denial of 3% reservation for persons with disabilities in terms of The Persons with Disabilities Act 1995,  would amount to discrimination.

Writing judgement in this case titled Nishant S. Diwan Versus High Court of Delhi, W.P.(C) 983/2014 on 25th March 2014, the bench observed that the Disabilities Act made it mandatory for all government organisations to reserve at least 3 per cent vacancies for the disabled and that the decision of the High Court administration to not include the disability quota in the upcoming direct recruitment process for the Delhi Higher Judicial Services was “arbitrary and discriminatory”.

The bench also struck down the argument that a five-judge committee on 09.03.2007, made no recommendation in respect of DHJS while making recommendation about the DJS (comprising of civil judges and magistrates only) saying that the Committee had considered the proposal in the background of whether to provide for reservations in DJS and there was no explicit reference to DHJS.

Click here to access the Supreme Court Judgement in Civil Apeal No. 9096/2013 (Arising out of SLP (Civil) No. 7541 of 2009) titled Union of India and Anr  Versus National Federation of Blind and others.

The court has also directed the establishment to carry out a review of the remaining number of vacancies in the DHJS that can be “appropriately earmarked for those with disabilities according to the total number of sanctioned posts”, following which it could recruit the appropriate number of persons in the next round of recruitment.

The court has directed the administration to carry out a “special recruitment procedure” for only the earmarked vacancies falling to the share of those entitled to be considered under the 3 per cent quota under the Disabilities Act, within a year of the date of declaration of results in the current recruitment process.

DHJS refers to appellate courts, which exercise appellate authority over the lowest level of judiciary. Direct recruitment to DHJS is done through an examination held by the High Court Establishment (HCE).

The HCE had issued an advertisement for recruitment to 14 posts in December last year, setting aside four seats for SC/ST candidates and 10 for general category. The examination for these seats is scheduled to be held on April 6.

The order was given on a plea filed by an advocate who is a person with locomotor disability, who had alleged that non-inclusion of disability quota in the DHJS recruitment was “contrary to the express provisions of the Disabilities Act”.

Advocate Nishant S Diwan, who has been practicing as an advocate since 1998, had also argued that the HCE was “under a duty to set-apart appropriate number of posts having regard to the total cadre strength of 224 posts in DHJS”.

The HCE had taken the decision that the disability quota would not apply to the DHJS recruitments and would only apply to the magistrates and civil Judges, since the notification issued by the Ministry of Social Justice and Empowerment had mentioned only “magistrates of the subordinate judiciary”. The HCE had also taken the plea that since the examination was scheduled for April 6, imposition of any quota at this late stage would “upset the entire timeline and delay the recruitment process”.

The court held that “there can be no difference for reservation under the Disabilities Act” between the DJS and the DHJS since the DHJS officers perform duties and functions similar to those in DJS.

The court directed the administration to set aside one of the 14 posts for persons eligible under the disability quota, but has directed that the seat should be kept vacant and should be clubbed with the next round of recruitment.

Since as per the Supreme Court judgement in UOI Versus National Federation of Blind, it is clarified that the section 33 is independent of Section 32 for making reservation, the Hon'ble Court should have also passed directions to calculate the backlog of the total vacancies since 01 Jan 1996 and not reserving one seat in the present recruitment process.

Also the list of identified posts makes a mention that posts with different nomenclature but with similar functions out to be reserved. Also since posts of DHJS are also promotional posts for the lower judiciary, these can not remain beyond the purview of reservation  in both direct recruitment as well as promotional reservation envisaged by the judgement of the Hon'ble Supreme Court ibid.

Download the Judgements:

• W.P.(C) 983/2014 Nishant S. Diwan Versus High Court of Delhi pronounced by Delhi High Court on 25 March 2014.
• Civil Apeal No. 9096/2013 (Arising out of SLP (Civil) No. 7541 of 2009) titled Union of India and Anr  Versus National Federation of Blind and others.

Delhi HC issues notices to Civic Agencies on Barrier Free Pedestrian Infrastructure

A Division Bench headed by the Acting Chief Justice B. D. Ahmed and Justice Sidharth Mridul of Delhi High Court on 26 March 2014, issued notices to Govt. of Delhi, civic bodies, Traffic Police, Police Commissioner & DDA  on a public interest litigation that sought a direction to ensure barrier free pedestrian infrastructure in the city of Delhi. The responses are to be filed by May 26, 2014.

The petitioner Mr. Vinod Kumar Bansal, a social worker stressed that parking spaces should be provided to the physically challenged in line with the Master Plan Delhi 2021. The petition sought the court's direction to the Delhi government and civic agencies to install auditory signals at red lights on public roads for physically handicapped which have not been provided despite clear cut provision in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995.

The petition further sought directions to make pavements wheelchair-friendly. "Footpaths, pavements and public roads are laid only for the purpose for passing through by the pedestrians / vehicles and are also meant for passage only and for no other purpose or business but the shopkeepers are misusing the footpaths, pavements and to some extent roads in Delhi," the PIL said.

The petition titled  Vinod Kumar Bansal Versus Govt. of NCT Delhi and Others registered as W.P.(C) 1977/2014, also points out that footpaths and pavements are constructed for free and safe passage for and by the pedestrians. However, authorities have ignored their duty to regulate, maintain and control the free flow of traffic and of the general public at large. The petition seeks to make all pavements wheelchair friendly.

More updates soon!

Supreme Court of India | Justice Sunanda Bhandare Foundation Vs. Union of India & Anr | 26 March 2014

Court: Supreme Court of India

Bench: R.M. Lodha, Sudhansu Jyoti Mukhopadhaya, Dipak Misra

Case No. & Title : WP (Civil) No. 116 OF 1998, Justice Sunanda Bhandare Foundation  Vs. U.O.I. & Anr 

Date of Judgement:  26 March, 2014

Equivalent Citation : (2014) 14 SCC 383)

Author: R Lodha

-----------------

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL/APPELLATE JURISDICTION

WRIT PETITION (CIVIL) NO. 116 OF 1998

JUSTICE SUNANDA BHANDARE FOUNDATION             ....Petitioner(s)

     VERSUS

 U.O.I. & ANR                                                                          ......Respondent(s)

WITH WRIT PETITION (CIVIL) NO. 115 OF 1998 WRIT PETITION (CIVIL) NO. 430 OF 2000 CIVIL APPEAL NO. 6442 OF 1998 CIVIL APPEAL NO. 6443 OF 1998 

J U D G M E N T 

R.M. LODHA, J. :

Writ Petition (Civil) No. 116 of 1998 In this Writ Petition filed by the petitioner – a charitable trust, the prayers made are (i) for implementation of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, '1995 Act'), (ii) direction for the reservation of 1% of the identified teaching posts in the faculties and college of various Universities in terms of Section 33 of the 1995 Act, and (iii) for declaration that denial of appointment to the visually disabled persons in the faculties and college of various Universities in the identified posts is violative of their fundamental rights guaranteed under Articles 14 and 15 read with Article 41 of the Constitution of India.

2. Initially, two respondents, namely, (one) Union of India through its Secretary, Ministry of Welfare and (two) University Grants Commission (U.G.C.) through its Chairperson were impleaded as party respondents.

3. On 07.10.1998, the Court ordered impleadment of the States and so also the Union Territories and, accordingly, respondent Nos. 3 to 34 were impleaded as party respondents.

4. On 13.09.2001, the Court directed the Chief Commissioner for Persons with Disabilities, Ministry of Social Justice and Empowerment, Government of India to be impleaded as party respondent and consequently it has been impleaded as respondent No. 35.

5. Then on 18.02.2009, the Court directed Commissioners for Persons with Disabilities of various States and Union Territories to be impleaded as party respondents and consequently respondent Nos. 36 to 70 have been impleaded who are Commissioners for Persons with Disabilities in different States and Union Territories.

6. Certain interim orders have been passed by this Court from time to time.

7. Insofar as U.G.C. (respondent No. 2) is concerned, the Court was informed on 19.03.2002 through counter affidavit that U.G.C. has acted in compliance of the 1995 Act. In paras 3, 6, 7 and 8 of the counter affidavit filed on behalf of the Chief Commissioner for Persons with Disabilities, it was stated :

"3. It is humbly submitted that in pursuance of Section 32 of the Persons with Disabilities Act (Equal Opportunities Protection of Rights and Full participation) Act, 1995, the appropriate government (Government of India) has updated the list of identified posts. This list has been issued vide Extraordinary Gazette Notification No. 178 dated 30.6.2001. In this list, the posts of University/College/School Teacher for the blind and low-vision have been listed at Sl. No. 24-27 on page No. 592.

6.  The Chief Commissioner for Person with Disabilities has taken cognizance of  the arrangements  provided by  the University  Grants Commission  for  persons  with   disabilities by of  extending  5% relaxation  in  cut  off marks, appearing  in the NET for Junior Research Fellowship and Lectureship.  Thus, the arrangement  extended    by  UGC is in consonance with the policy stand taken by Govt. of India in so far as  relaxation  in    minimum standard     is concerned. Relaxation in standards has  been  favoured only when the candidates  belonging  to reserved  categories  are not available on  the basis  of  the  general standard to fill  all the vacancies reserved  for them.

7.   The relaxation extended to SC & ST candidates as per Maintenance of Standard 1998 of   the Universities, provides for a 5% relaxation from 55 %  to 50% in  the marks obtained at Master's Degree.  Since reservation for the disabled is  called   horizontal reservation which cuts  across all   vertical categories such as SC, ST, OBC & General. Therefore, all such blind/ low- vision persons who belonged to SC, ST vertical category would automatically enjoy the benefit  of 5 % relaxation at the minimum qualifying  marks  obtained at Master's Degree level. Thus, only the blind  and  low vision belonging to OBC & General categories  are deprived of  the relaxation of 5% marks at masters' level.

8.  The blind/low-vision and other visually disabled persons belonging to SC & ST category are in any case enjoying the benefit of 5% relaxation in  marks obtained at the  master's level for appearing in the NET  examination conducted by the UGC. By extending the same relaxation to particularly blind/low-vision and in general all disabled at par with SC & ST disabled would bring  parity amongst all persons with disabilities irrespective  of their vertical categories."

8. Thus, insofar as U.G.C. is concerned, this Court in the order 19.03.2002 observed that nothing survives for consideration and the matter is disposed of as against U.G.C.

9. On 19.07.2006, the Court directed the Union of India and the State Governments to file their responses in the form of affidavits within a period of four weeks, failing which it was observed that the Court may be compelled to direct personal appearance of the Chief Secretaries of the concerned States though the Court would like to avoid in making such a direction. Some of the States have filed their responses and some have not.

10. Be that as it may, the beneficial provisions of the 1995 Act cannot be allowed to remain only on paper for years and thereby defeating the very purpose of such law and legislative policy. The Union, States, Union Territories and all those upon whom obligation has been cast under the 1995 Act have to effectively implement it. As a matter of fact, the role of the governments in the matter such as this has to be proactive. In the matters of providing relief to those who are differently abled, the approach and attitude of the executive must be liberal and relief oriented and not obstructive or lethargic. A little concern for this class who are differently abled can do wonders in their life and help them stand on their own and not remain on mercy of others. A welfare State, that India is, must accord its best and special attention to a section of our society which comprises of differently abled citizens. This is true equality and effective conferment of equal opportunity.

11. More than 18 years have passed since the 1995 Act came to be passed and yet we are confronted with the problem of implementation of the 1995 Act in its letter and spirit by the Union, States, Union Territories and other establishments to which it is made applicable.

12. Ms. Sunita Sharma, learned counsel for the Union of India, informs us that insofar as Union of India is concerned, it has implemented the provisions of the 1995 Act and the reservation of 1% of the identified teaching posts in the faculties and college of various Universities in terms of Section 33 of the 1995 Act has been done.

13. In our view, the 1995 Act has to be implemented in the letter and spirit by the Central Government, State Governments and Union Territories without any delay, if not implemented so far.

14. We, accordingly, direct the Central Government, State Governments and Union Territories to implement the provisions of the 1995 Act immediately and positively by the end of 2014.

15. The Secretary, Ministry of Welfare, Government of India, the Chief Secretaries of the States, the Administrators of Union Territories, the Chief Commissioner of the Union of India and the Commissioners of the State Governments and Union Territories shall ensure implementation of the 1995 Act in all respects including with regard to visually disabled persons within the above time.

16. Writ Petition is disposed of in the above terms.

Writ Petition (Civil) No. 115 of 1998, Writ Petition (Civil) No. 430 of 2000, Civil Appeal No. 6442 of 1998 and Civil Appeal No. 6443 of Writ Petitions and Appeals are disposed of in terms of the judgment passed today in Writ Petition (Civil) No. 116 of 1998.

2. No costs.

3. Interlocutory Applications for intervention and impleadment filed in Civil Appeal No. 6442 of 1998, in view of the above, do not survive and they stand disposed of as such.

..............................J. (R.M. LODHA)

..............................J. (SUDHANSU JYOTI MUKHOPADHAYA)

 ..............................J.  (DIPAK MISRA)

 NEW DELHI;      MARCH 26, 2014       

 

Read the judgement embedded below: