Right to wear Hijab in School

Can school impose condition of a Uniform for it’s students?

Fundamental Rights are either in nature of the absolute right or relative right. Absolute rights are non-negotiable. Relative rights are always subject to the restriction imposed by the Constitution. The religious rights are relative rights.

The dominant interest represents the larger interest and the subservient interest represents only individual interest. If the dominant interest is not allowed to prevail, subservient interest would march over the dominant interest resulting in chaos. The dominant interest, in this case, is the management of the institution. If the management is not given free hand to administer and manage the institution that would denude their fundamental right.

The petitioners cannot seek imposition of their individual right as against the larger right of the institution. It is for the institution to decide whether the petitioners can be permitted to attend the classes with the headscarf and full sleeve shirt. It is purely within the domain of the institution to decide on the same. The Court cannot even direct the institution to consider such a request.

Full Judgment:

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Corona Pandemic: Directions by Supreme Court.

Conclusion:

The present order has primarily considered the submissions (written and oral) of the UOI. These submissions have been reproduced here as a matter of public record and to contextualize the clarifications that are being sought by our Court in order to serve its dialogic role. We reiterate, for abundant caution, that the data and submissions reproduced above are not its endorsement or acceptance. In terms of the above discussion, we hereby pass the following directions:

(i)The UOI shall ensure, in terms of the assurance of the Solicitor General, that the deficit in the supply of oxygen to the GNCTD is rectified within 2 days from the date of the hearing, that is, on or before the midnight of 3 May 2021;

(ii) The Central Government shall, in collaboration with the States,prepare a buffer stock of oxygen for emergency purposes and decentralize the location of the emergency stocks. The emergency stocks shall be created within the next four days and is to be replenished on a day to day basis, in addition to the existing allocation of oxygen supply to the States;

(iii) The Central Government and State Governments shall notify all Chief Secretaries/Directors General of Police/Commissioners of Police that any clampdown on information on social media or harassment caused to individuals seeking/delivering help on any platform will attract a coercive exercise of jurisdiction by this Court. The Registrar (Judicial) is also directed to place a copy of this order before all District Magistrates in the country;

(iv) The Central Government shall,within two weeks,formulate a national policy on admissions to hospitals which shall be followed by all State Governments. Till the formulation of such a policy by the Central Government, no patient shall be denied hospitalization or essential drugs in any State/UT for lack of local residential proof of that State/UToreven in the absence of identity proof;

(v )The Central Government shall revisit its initiatives and protocols, including on the availability of oxygen, availability and pricing of vaccines, availability of essential drugs at affordable prices and respond on all the other issues highlighted in this order before the next date of the hearing, that is, 10 May 2021. Copies of all affidavits to be served upon the Amiciin advance; and

(vi) Several other suggestions have been made before this Court in IAs and writ petitions filed by diverse parties. In order to streamline the further course of hearing, we have requested the Amicito collate and compile these suggestions which would be taken up later. The present order has focused on certain critical issues in view of the urgency of the situation

Read Full Judgement here:

Click to access 11001_2021_35_301_27825_Judgement_30-Apr-2021.pdf

Road safety rules and policy in India

Directions given by Supreme Court of India on Road Safety:

1. Road Safety Policy:

Most of the State Governments and Union Territories have already framed a Road Safety Policy. Those that have not framed such a policy namely Assam, Nagaland, Tripura, Delhi, Lakshadweep, Dadra and Nagar Haveli and Andaman and Nicobar Islands, must now formulate the Road Safety Policy by 31st January, 2018. All States and Union Territories are expected to implement the Road Safety Policy with all due earnestness and seriousness.

2. State Road Safety Council:

All States have already constituted a Road Safety Council in terms of Section 215 of the Motor Vehicles Act, 1988. Continue reading “Road safety rules and policy in India” →

Custodial Interrogation to obtain confession is not permissible

Non-cooperation of accused with investigator:

Petition for cancellation of bail on the allegations that accused refused to confess to the I.O. if permissible?

“…It appears, the IO was of the view that the custody of the appellant is required for recording his confessional statement in terms of what the co-accused had already stated in the Statement under Section 161 of the Code of Criminal Procedure, 1973. The IO was of the opinion that the appellant was not cooperating because he kept reiterating that he had not purchased the food-grains. The purpose of custodial interrogation is not just for the purpose of confession. The right against self-incrimination is provided for in Article 20(3) of the Constitution. It is a well settled position in view of the Constitution Bench decision in Selvi and others v. State of Karnataka (2010) 7 SCC 263, that Article 20(3) enjoys an “exalted status”. This provision is an essential safeguard in criminal procedure and is also meant to be a vital safeguard against torture and other coercive methods used by investigating authorities. Therefore, merely because the appellant did not confess, it cannot be said that the appellant was not cooperating with the investigation. However, in case, there is no co-operation on the part of the appellant for the completion of the investigation, it will certainly be open to the respondent to seek for cancellation of bail.

Continue reading “Custodial Interrogation to obtain confession is not permissible” →

Proof of recovery of contraband under NDPS Act

In a case of sudden recovery, independent witness may not be available. But if an independent witness is available, and the prosecution initially seeks to rely upon him, it cannot suddenly discard the witness because it finds him inconvenient, and place reliance upon police witnesses only. In the stringent nature of the provisions of the Act, the reverse burden of proof, the presumption of culpability under Section 35, and the presumption against the accused under Section 54, any reliance upon Section 114 of the Evidence Act in the facts of the present case, can only be at the risk of a fair trial to the accused.

The presumption against the accused of culpability under Section 35, and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with reverse burden of proof, does not sanction conviction on basis of preponderance of probability. Section 35 (2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. That the right of the accused to a fair trial could not be whittled down under the Act. Continue reading “Proof of recovery of contraband under NDPS Act” →

Claim of Maintenance by Spouse: Delay in adjudication

Claim for maintenance or support by wife

Delay in adjudication of Spouse Support or Maintenance Claim by the Family Court is not only against human rights but also against the basic embodiment of dignity of an individual.

Sustenance by dependent spouse:

The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life “dust unto dust”. It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.

Sensitivity required from Family Judge:

The Family Judge is expected to be sensitive to the issues, for he is dealing with extremely delicate and sensitive issues pertaining to the marriage and issues ancillary thereto. When we say this, we do not mean that the Family Courts should show undue haste or impatience, but there is a distinction between impatience and to be wisely anxious and conscious about dealing with a situation. A Family Court Judge should remember that the procrastination is the greatest assassin of the lis before it. It not only gives rise to more family problems but also gradually builds unthinkable and everestine bitterness. It leads to the cold refrigeration of the hidden feelings, if still left. The delineation of the lis by the Family Judge must reveal the awareness and balance. Dilatory tactics by any of the parties has to be sternly dealt with, for the Family Court Judge has to be alive to the fact that the lis before him pertains to emotional fragmentation and delay can feed it to grow.

[Source: Bhuwan Mohan Singh v. Meena]

Analysis of Bhuwan Mohan Singh v. Meena:

Maintenance or spouse support is always a matter of acrimonious contention between the warring couple. The concept of human right introduced in this case is good but it is likely to be turned on it’s head. Here is ground reality of litigation in India:

While the constitution of India ensures equal rights and status to all the fact is the billionaires and beggars share the same street. The courts are approached by poor and rich alike. The claim of maintenance for child or spouse support is not different. Litigations drag for years, even before an interim amount is given. While for rich couple it may be alright to pay and receive huge arrears, for poor the delay means denial. It is also a fact that rich often get speedier justice than poor.

It would be appropriate if these provisions relating to child support and spouse support are properly reworked and re-legislated with the proper attention to human rights and disassociating it’s use as leverage in matrimonial litigation. If that is done, perhaps the courts would not be required to introduce human rights from back door.

This is not the first time court has emphasized expediency in such matters. The truth is that these observations fall on deaf ears in Indian Judicial System. Subordinate Judges have become insensitive to observations of expediency by Apex Courts and in the absence of any direct accountability measure, this judgement is not going to change anything. However citing this judgement with a motion for early hearing may yield results.

Legal Rights of Transgender Community

Difficulties of Transgender Community:

Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.

A petition by Transgender Community:

A Petition was filed by National Legal Services Authority under Legal Services Act, for the benefit of Transgender Community seeking legal declaration of their gender identity than the one assigned to them, male or female, at the time of birth and their prayer is that non-recognition of their gender identity violates Articles 14 and 21 of the Constitution of India. Hijras/Eunuchs, who also fall in that group, claim legal status as a third gender with all legal and constitutional protection.

Legal rights of Transgender Community:

per K.S. Radhakrishnan, J

“74. Article 21, as already indicated, protects one’s right of self- determination of the gender to which a person belongs. Determination of gender to which a person belongs is to be decided by the person concerned. In other words, gender identity is integral to the dignity of an individual and is at the core of “personal autonomy” and “self-determination”. Hijras/Eunuchs, therefore, have to be considered as Third Gender, over and above binary genders under our Constitution and the laws.

75. Articles 14, 15, 16, 19 and 21, above discussion, would indicate, do not exclude Hijras/Transgenders from its ambit, but Indian law on the whole recognize the paradigm of binary genders of male and female, based on one’s biological sex. As already indicated, we cannot accept the Corbett principle of “Biological Test”, rather we prefer to follow the psyche of
the person in determining sex and gender and prefer the “Psychological Test” instead of “Biological Test”. Binary notion of gender reflects in the Indian Penal Code, for example, Section 8, 10, etc. and also in the laws related to marriage, adoption, divorce, inheritance, succession and other welfare legislations like NAREGA, 2005, etc. Non-recognition of the
identity of Hijras/Transgenders in the various legislations denies them equal protection of law and they face wide-spread discrimination.

76. Article 14 has used the expression “person” and the Article 15 has used the expression “citizen” and “sex” so also Article 16. Article 19 has also used the expression “citizen”. Article 21 has used the expression “person”. All these expressions, which are “gender neutral” evidently refer to human-beings. Hence, they take within their sweep Hijras/Transgenders and are not as such limited to male or female gender. Gender identity as already indicated forms the core of one’s personal self, based on self identification, not on surgical or medical procedure. Gender identity, in our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity, including those who identify as third gender….”

per A.K. Sikri, J.:

“…….The role of the Court is to understand the central purpose and theme of the Constitution for the welfare of the society. Our Constitution, like the law of the society, is a living organism. It is based on a factual and social realty that is constantly changing. Sometimes a change in the law precedes societal change and is even intended to stimulate it. Sometimes, a change in the law is the result in the social realty. When we discuss about the rights of TGs in the constitutional context, we find that in order to bring about complete paradigm shift, law has to play more pre-dominant
role. As TGs in India, are neither male nor female, treating them as belonging to either of the aforesaid categories, is the denial of these constitutional rights. It is the denial of social justice which in turn has the effect of denying political and economic justice….”

Declaration of rights of Transgender Community by Supreme Court of India:

Supreme Court of India after deliberating upon various aspects of human rights, has given following specific directions to restore the status and dignity of Transgender (Hijra/Kinner/Eunuch) Community:

We, therefore, declare:
(1) Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.
(2) Transgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.
(3) We direct the Centre and the State Governments to take steps to treat them 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.
(4) Centre and State Governments are directed to operate separate HIV Sero-survellance Centres since Hijras/ Transgenders face several sexual health issues.
(5) Centre and State Governments should seriously address the problems being faced by Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one’s gender is immoral and illegal.
(6) Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities.
(7) Centre and State Governments should also take steps for framing various social welfare schemes for their betterment.
(8) Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables.
(9) Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life.

[Source: National Legal Services Authority v. Union of India (Supreme Court of India)]

No handcuffs for prisoners in India

Handcuffs on prisoners, is inhuman.

No Handcuffing of prisoners without special reasons:

“Handcuffing is prima facie inhuman and, therefore, unreasonable, is over-harsh and at the first flush, arbitrary. Absent fair procedure and objective monitoring, to inflict `irons’ is to resort to zoological strategies repugnant to Art. 21. Thus, we must critically examine the justification offered by the State for this mode of restraint. Surely, the competing claims of securing the prisoner from fleeing and protecting his personality from barbarity have to be harmonized. To prevent the escape of an under trial is in public interest, reasonable, just and cannot, by itself, be castigated. But to bind a man hand-and- foot fetter his limbs with hoops of steel, shuffle him along in the streets and stand him for hours in the courts is to torture him, defile his dignity, vulgarise society and foul the soul of our constitutional culture.”

Handcuffs in extreme circumstances: Continue reading “No handcuffs for prisoners in India” →

Surrogacy becoming neo cannibalism

Ethics of Organ donation,
blood/plasma/bone marrow donation and surrogacy.

Difference between India and USA:

Death is always shocking. Irrespective of age. But death of a young person, in United States is news, not just nationally, but internationally. In countries, where generations of people did not migrate to squat and settle at new lands, problem of over population prevents every death from becoming a news especially when an element of consent can be attached. India and Russia appears to be surrogacy capitals of the world. Organ donation, blood/plasma/bone marrow donation, surrogacy, Sperm/egg donation and what not. The rotation of activities of life are not around living but achieving, becoming or accumulating. Surviving as long as possible can only be next goal and what better use of money can be to buy life even if at the cost of someone else’s life.

Surrogacy, poverty and poor medical conditions in India:

In Indian traditions, motherhood is hailed as reincarnation. A successful delivery of child is treated as rebirth for mother. But that story is for financially comfortable. Poor will sell anything to taste better life and rich will buy anything without hindered by scruples. The recent death of a 30-year-old Indian surrogate mother with two children ought to have given a pause to ponder over the ethics of the international surrogacy market. but so far nothing visible on horizon.

Organ donation:

Organ donation is similar story but legally there is a ban on commercial sale of organs. In a recent case Delhi High Court chose to ignore possible past commercial relations between donor and recipient. It observed:

“Merely because in a given case, a near relative may not be willing to donate his or her organ/tissue to the recipient, it is not ground to either raise suspicion of a commercial transaction, or to reject the case altogether. It is not the mandate of the authorization committee to compel or drive the near relative of the recipient to donate their organ/tissue to the recipient ….. the term “payment” under the Transplantation of Human Organ and Tissues Act would not cover a monetary transaction between a donor and recipient in the past when such a transplant was not required….. (Source: http://www.indianexpress.com/news/Love–affection-of-distant-kin-good-enough-for-donation-of-organs–HC/949872/

Only UK has a potential customers of commercial surrogacy worth six billion as reflected from following article:

A combination of the high costs of such surrogacy in the UK, the extremely limited number of willing surrogates, and the legal restrictions on commercial surrogacy in the UK has helped to create a global market in international surrogacy worth, on one recent estimate, about six billion dollars annually. Unlike international adoption, which is subject to strict regulation both in the United Kingdom and abroad, international surrogacy is entirely unregulated at an international level. Certain countries such as India and the Ukraine promote themselves as destinations for gestational surrogacy by providing good quality low cost medical care and by giving legal protection to commissioning parents. (Source: http://www.familylawweek.co.uk/site.aspx?i=ed97868)

How poor surrogate mothers are treated in these clinics, is reflected from the following article:

Even though the growth of surrogacy in India is a familiar story, too little is known about how the system actually operates. ………. Even if these people have put their signatures on a piece of paper, has there really been informed consent? One of the consent documents says that the hospital involved has “made sure to the extent humanly possible that he / she / they understand these details and implications”. This does not inspire a lot of confidence. (Source: http://catholicexchange.com/who-cares-indian-surrogate-for-u-s-woman-dies/)

The pregnant lady is kept alive till the child can be taken out by cesarean procedure and then mother is thrown to Government Hospital to take care. (Source: http://www.atimes.com/atimes/South_Asia/NE24Df02.html) Commercial or non-commercial, an agreement treating the life of child superior or preferable to mother, must be prohibited and special care for the mother must be ensured. It would also be wise if a women is not permitted to surrogate more than once. But presently there is no legislation and legislators have no time to think about this problem.

Colour no bar for consumption:

Position about are donor-ships related to bio-organs is no different. Thus rich would be consuming the poor with impunity and color of skin would not be a matter of consideration, for a change. Situation is, actually, ‘grotesquely exploitative’. Is it not a new kind of cannibalism? If not, what is it? Just because it has no name, it does not become ethical.

Right to life of a tourist visiting India.

Right to Life: Does a tourist visiting India from another country has any rights?

International law on right to life:

Right to life and dignity etc. are part of Universal Declaration of Human Rights, 1948. The International Covenants and Declarations as adopted by the United Nations have to be respected by all signatory States and the meaning given to the above words in those Declarations and Covenants have to be such as would help in effective implementation of those Rights. The applicability of the Universal Declaration of Human Rights and principles thereof may have to be read, if need be, into the domestic jurisprudence. This is the view of Supreme Court of India.

Right to life as per Constitution of India:

Article 21 of Constitution of India provides “No person shall be deprived of his life or personal liberty except according to procedure established by law.“

Right to life as interpreted by Supreme Court of India:

The term “life” indicates something more than mere animal existence.The inhibitions contained in Article 21 against its deprivation extends even to those faculties by which life is enjoyed.

[Source: Kharak Singh vs. State of U.P., AIR 1963 SC 1295: 1964 (1) SCR 332; See also : State of Maharashtra vs. Chandrabhan Tale, AIR 1983 SC 803: 1983 (3) SCR 337:(1983) 3 SCC 387].

The right to life under Article 21 means the right to live with dignity, free from exploitation.

[Source: Bandhua Mukti Morcha vs. U.O.I., AIR 1984 SC 802: 1984 (2) SCR 67: (1984) 3 SCC 161; See also: Maneka Gandhi vs.U.O.I., AIR 1978 SC 597: 1978 (2) SCR 621: (1978) 1 SCC 248 and Board of Trustees of the Port of Bombay vs. Dilip Kumar Raghavendranath Nadkarni, AIR 1983 SC 109: 1983 (1) SCR 828: (1983) 1 SCC 124].

Rape is violative of right to life:

Rape is a crime not only against the person of a woman, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. Rape is therefore the most hated crime. It is a crime against basic human rights and is violative of the victims most cherished right, namely, right to life which includes right to live with human dignity contained in Article 21.

[Source: Bodhisatwa vs. Ms. Subdhra Chakroborty (1996) 1 SCC 490]

Right to life includes human dignity for foreigners as well:

In case of a rape of a foreigner in India the Supreme Court reaffirmed and hels as under:

…….Smt. Hanuffa Khatoon, who was not the citizen of this country but came here as a citizen of Bangladesh was, nevertheless, entitled to all the constitutional rights available to a citizen so far as “Right to Life” was concerned. She was entitled to be treated with dignity and was also entitled to the protection of her person as guaranteed under Article 21 of the Constitution. As a national of another country, she could not be subjected to a treatment which was below dignity nor could she be subjected to physical violence at the hands of Govt. employees who outraged her modesty. The Right available to her under Article 21 was thus violated. Consequently, the State was under the Constitutional liability to pay compensation to her. …….
[Source: Chairman Railway Board v. Chandrima Das.]