The year that went by has been a mixed bag. Cases handled by HRLN saw considerable success, whereas there were some disappointments too. The year that went by saw considerable progress with landmark judgments upholding and furthering constitutional rights. On the other hand, the year also saw caste, religion and gender-based violence against minorities including draconian bills being formulated and passed in the lower house of the Parliament.
In the run-up to the elections, there was a deterioration in the social fabric of the country where narratives of exclusion and hatred towards minorities was propagated which resulted in blatant human right violations.
HRLN looks at cases that are worth mentioning.
Decriminalisation of Begging | Delhi
The Delhi High Court on August 8, 2018, quashed several provisions of the Bombay Prevention of Begging Act (1959) thereby decriminalising begging in the state. In 1960, begging was made a punishable offence after the Bombay Prevention of Begging Act, 1959 was extended to the national by a Central government amendment.
In its verdict, the court observed, “The question is simple. In our constitutional framework that promises every person the right to live with dignity, can the State criminalize begging? The social contract between the citizen and the State is a contract by which, in exchange for the citizen ceding her autonomy partially, the State promises her security over her person and a life with dignity”.
The verdict came on the heels of a plea filed by activist Harsh Mander in 2009. In his plea, Mander challenged the provisions of the act sought to decriminalize begging by the Government of Delhi. One of the primary contentions of the petition was that the anti-begging law discriminated against the poor in India and thus, violated the Constitution of India. One of the key grounds of the Petition was that the ‘artificial means to make beggars invisible’ would not suffice begging had to be eradicated.
The matter was argued by senior advocate Colin Gonsalves along with advocates Chaudhary Zia Ali Kabir, Aditi Saxena and Pragya P. Singh.
Read the petition and the verdict here.
Supreme Court stays Allahabad High Court’s closure of cafe operated by Acid attack survivors | Supreme Court
The Supreme Court stayed an order of the Allahabad High Court (Lucknow bench) which upheld an Uttar Pradesh government order directing the eviction and closure of ‘Sheroes Hangout Café’ – a cafe in Lucknow run by acid attack survivors. The Supreme Court issued a status quo for nine months and directed the high court to dispose the matter within that time.
Sheroes Hangout Café was launched in 2016 with an aim to rehabilitate acid attack survivors. The Mahila Kalyan Nigam and Chhanv Foundation signed a two-year contract with the idea of providing the survivor with skills sets in order to make them independent. The first café, set up at Agra, was set up to employ acid attack victims in the café which also conducted social programmes, workshops and trainings. The second café was set up in Lucknow in 2016 after then Chief Minister Akhilesh Yadav gave the premises and promised support. Several times, the authorities had orally indicated that the café would run for 30 years.
However, in 2018, the authorities realised the commercial value of the brand as well as the premises where the café was located. The authorities, in connivance with private parties, sought to take over the place and the brand name Sheroes.
The premises originally belonged to Lucknow Development Authority (LDA) but have been handed over to Mahila Kalyan Nigam which comes under the state Ministry of Women and Child Development (MWCD). The Minister in charge apparently worked out an arrangement with Lotus Hospitality to take-over the premises and the name Sheroes. To this extent, Lotus Hospitality got in touch with employees at Sheroes and offered them double salaries to join them.
The matter is still pending before the Lucknow Bench of the high court. Advocate Aman Khan is representing the acid attack survivors in the high court.
You can read the petition and the order here.
Discriminatory Tenders for Supply of Food for Anganwadi Centres stayed |Supreme Court
The Supreme Court on February 26, 2019 struck down tenders worth Rs 6,300 crore issued by the Maharashtra government in 2016 for the production and supply of take-home ration (THR) for supplementary nutrition at day care centres and anganwadis under the Centre’s Integrated Child Development Scheme (ICDS). The bench of Justice Arun Mishra and Deepak Mishra came down on the Maharashtra state’s women and child development department for tweaking tender norms to benefit private companies.
Local self-help groups (SHGs) had challenged the tenders doled out suggesting that the terms were arbitrarily fixed and the conditions imposed on them made it difficult for them to comply and participate in the scheme.
“The principal issue is whether the contracts for the supply should be given to local mahila mandals run along democratic lines with local women participating or whether such contracts ought to be given by the state to large corporates/contractors under the guise of the conditions of the tender. It has also been pointed out that under THR, normally dry mixtures such as Dallya, khicdi, etc are supplied, which do not require sophisticated techniques for manufacturing. The SHGs are fully equipped and competent to supply the said food,” the verdict read.
You can read the order here
Missing Students Case: Central Bureau of Investigation ordered to present status report | Delhi
Fateema Nafees filed a petition in the high court seeking an investigation in the disappearance of her son Najeeb Ahmed who went missing from the JNU campus in October 2016. The student’s disappearance was first investigated by the Crime Branch of the Delhi police. However, the Delhi High Court transferred the case to the Central Bureau of Investigation (CBI) and directed them to file a status report.
On October 15, 2018 the CBI terminated its probe and filed a closure report.
27-year-old Ahmed was pursuing MSc in Biotechnology when he went missing from the Mahi-Mandvi hostel on the JNU campus following a fight with some students allegedly affiliated with the Akhil Bharatiya Vidyarthi Parishad (ABVP).
(Petition, report and order)
All Construction work stayed in States that have not prepared a Solid Waste Management Policy | Supreme Court
On September 3, 2018 the Supreme Court halted all construction activities until the states and union territories formulated a solid waste management policy. Expressing its disapproval, the top court said it was “pathetic” that some states and UTs had not even bothered to frame a policy.
The bench led by Justice Madan Lokur further imposed a fine amounting to Rs. 3 lakhs on Chandigarh and those states which had not submitted their respective policies under the Solid Waste Management Rules, 2016.
The court was hearing a larger issue – suo motu, where senior advocate Colin Gonsalves was appointed as the amicus curiae. The bench was dealing with a public interest case that dealt with Sanitation, Solid Waste Management and inaction by the States.
“It is unfortunate that some States and Union Territories have not yet framed any Policy under the Solid Waste Management Rules, 2016. In case the States have the interest of the people in mind and cleanliness and sanitation, they should frame a Policy in terms of the Solid Waste Management Rules so that the States remain clean,” the court observed. “The attitude of the States/Union Territories in not yet framing a Policy even after two years is pathetic, to say the least,” it added.
Advocates Sneha Mukherjee, Nabila Hasan and Olivia Bang assisted Gonsalves in this matter.
Read the order here.
Women partners allowed to live together | Kerala
In a landmark verdict, the Kerala High Court allowed same sex partners to live-in together. The high court’s verdict came on the heels of a habeas corpus plea filed by Sreeja S (40) who alleged that her partner 24-year-old Aruna was being illegally confined by her parents against her will.
The high court relied on several verdicts including the Navtej Singh Johar case in which the Supreme Court decriminalised section 377. The high court further relied on the Shafin Jahan case in which the top court observed that in cases of Habeas Corpus writ petitions, the role of the court is to see that the detenue is produced before it, to find about his or her independent choice and see to it that the person is released from the illegal restraint.
“What is seminal is to remember that the song of liberty is sung with sincerity and the choice of an individual is appositely respected and conferred its esteemed status as the Constitution guarantees. It was found that, the social values and morals have their space, but they are not above the constitutionally guaranteed freedom,” the court verdict read.
“The said freedom is both a constitutional and a human right. Deprivation of that freedom which is ingrained in choice on the plea of faith is impermissible,” it added.
The high court stressed that the “exercise of jurisdiction should not transgress into the area of determining the suitability of partners to a marital life. That decision rests exclusively with the individuals themselves.”
“Neither the State nor society can intrude into that domain,” the division bench of the high court said. “Intimacies of marriage, including the choices which individuals make on, whether or not to marry and on whom to marry, lie outside the control of the State. Courts as upholders of constitutional freedom must safeguard these freedoms,” the verdict read.
“…this court cannot find that the ‘live-in relationship’ between the petitioner and the alleged detenue will in any manner offend any provisions of law or it will become a crime in any manner. On the other hand, if the jurisdiction vested on this court is not exercised, it will amount to permitting a violation of the Constitutional right to perpetrate,” the high court concluded.
Advocates KK Preetha, Ferha Azeez and RK Prasanth represented Sreeja in this matter.
Read the Kerala High Court verdict here.
Surrogate Mother allowed Termination of Pregnancy | Maharashtra
The Bombay High Court, on December 28, 2018 allowed a surrogate mother to terminate her 24-week pregnancy after it was found that the foetus had multiple cardiac abnormalities. This is the first instance where a surrogate mother approached court in order to terminate the pregnancy. Justice Bharati Dangre allowed the surrogate mother’s appeal. However, before allowing the abortion, the court sought affirmation from the couple with whom the surrogate had entered an agreement with.
The surrogate mother in this case had consented to be a surrogate for a Pune-based couple. Weeks into the pregnancy, during a routine check-up, the surrogate found out that the foetus suffered from severe tricuspid regurgitation and foetal right ventricle and pulmonary artery appear hypoplastic. Since she was 22-weeks pregnant, the surrogate mother was required to file a plea in the high court seeking to abort the foetus. According to the Medical Termination of Pregnancy Act, a mother must seek the court’s permission to abort a foetus if she is more than 20-weeks pregnant.
Advocate Neha Philip represented the petitioner in Bombay High Court
Transgender activist files petition in SC seeking provision of third gender option in PAN cards | Supreme Court
In March 2018, Reshma Prasad, a social activist from Bihar filed a plea in the Supreme Court seeking directions from the Centre, to create a separate third gender category on PAN cards which would enable transgender persons to get accurate identity proofs.
HRLN filed the SLP on Reshma’s behalf after the Patna high court dismissed her previous PIL with a similar prayer.
The petition said, “It appears that the online/offline systems of the Income Tax Department, despite the judgment passed in the National Legal Services Authority Vs. Union of India & Ors 2014 does not recognize third gender as a separate gender. It is humbly submitted that even the application for PAN does not have a separate option of ‘third gender’. PAN cards/numbers to date are being issued with gender as male or female only.”
Meanwhile, during the pendency of the plea, the Income Tax department issued a circular on April 9, 2018 amending the forms used to apply and update the PAN card to include the third gender.
Advocate Nabila Hasan represented Prasad in the Supreme Court.
You can read the petition here.
Comprehensive directions on Medical Termination of Pregnancy given by Bombay
High Court | Maharashtra
In response to a batch of petitions seeking abortions, the Bombay High Court on April 3, 2019 issued a comprehensive judgement that outlined critical directions both for the State and Medical Practitioners.
The court held that a registered medical practitioner may medically terminate pregnancy which has exceeded 20 weeks, without the High Court’s permission only when he is of the opinion, that the termination of such pregnancy is immediately necessary in order to save the life of the pregnant woman.
The court also directed the State to establish Medical Boards to examine cases of medical termination of pregnancy exceeding 20 weeks in each district. The HC further directed the state to formulate a suitable policy to deal with the cases therein with special emphasis on rural areas. This would enable pregnant women from rural areas to access safe and hygienic facilities. The court also ruled that in a case of a live birth despite a medical termination of pregnancy, the state would have to assume full responsibility of the child.
Senior Advocate Gayatri Singh, along with advocates Aditi Saxena, Meenaz Kakalia and Kranti L.C. represensented the petitioners in this matter.
You can read the Bombay High Court verdict here.
Alternative Plan of Rehabilitation for families affected by Demolitions and forced to
relocate to Mahul | Maharashtra
Slum dwellers filed a slew of petitions in the Bombay High Court challenging the eviction and demolition of their slum structures which was the result of a court-mandated 10-metre buffer zone around water supply pipelines running through the city.
A number of these slum dwellers were rehabilitated at the MMRDA Colony in Mahul, Chembur. However, the petitioners submitted that Mahul has been held to be an unsuitable area for human habitation due to its proximity to a cluster of petroleum refineries and storage terminals of hazardous chemicals.
On September 23, 2019 the Bombay high court directed the state of Maharashtra to relocate over 5,000 families staying at Mahul. The High Court further ruled that no more families should be shifted there till alternative accommodation is provided to the current residents. The division bench led by Chief Justice Pradeep Nandrajog also directed the state to pay the petitioners ?15,000 per month as transit rent with security deposit of ?45,000 to each family within 12 weeks.
“It is therefore evident that residential premises in the vicinity of such refineries can pose multi-faceted security risks, which are not only restricted to the health of the residents nearby and the absolute liability imposed on the refineries, but a terrorist attack using these refineries as targets could lead to colossal destruction within the city, that could debilitate a large number of people living around the Chembur region,” the judgment read.
Advocates Ronita Bhattacharya, Kranti L. C. and Sangram Chinnappa represented 120 petitioners in this matter.