Year 2018 : List of cases and pending legislations with the potential of social change

The timeline of the upcoming cases to be heard and the proposed legislations with potential of high impact makes the New Year 2018 an important year. Here is a list of some of the cases and Bills, which we hope will be discussed, debated, and developed for social change.

2017 | Pending Bills

Inter-State Water Disputes (Amendment) Bill, 2017

The (Amendment) Bill, 2017 was introduced in Lok Sabha by the Minister of Water Resources, River Development and Ganga Rejuvenation, Ms. Uma Bharti, on March 14, 2017.  The Bill seeks to amend the Inter-State River Water Disputes Act, 1956.

Some key amendments include:

  1. The Bill proposes to set up an Inter-State River Water Disputes Tribunal, for adjudication of water disputes, if a dispute is not resolved through the DRC.  This tribunal can have multiple benches. All existing tribunals will be dissolved and the water disputes pending adjudication before such existing tribunals will be transferred to this newly formed tribunal.
  1. The Bill requires the central government to set up a Disputes Resolution Committee (DRC), for resolving any inter-state water dispute amicably.  The DRC will get a period of one year, extendable by six months, to submit its report to the central government.
  1. Under the present Act, the central government maintains a data bank and information system at the national level for each river basin.  Under the Bill, the central government will appoint or authorise an agency to maintain a data bank and information system at the national level for each river basins.

The Bill proposes structural reforms in the adjudicatory mechanism, but these reforms do not fulfill the essential correctional measures required to deal with increasing demand for water in India.

Read a legal analysis of the Bill: Water Water Everywhere, not a drop to drink by Advocate Mohan Katarki

The Transgender Persons (Protection of Rights) Bill, 2017

The Rights of Transgender Persons Bill, 2014, was introduced in the Rajya Sabha as a Private Member’s Bill by Dravida Munnetra Kazhagam leader, Tiruchi Siva, in April 2015. However, there was delay in discussing the Bill in the Lok Sabha. In December 2015, the Ministry of Social Justice and Empowerment made available a draft of the Transgender Persons (Protection of Rights) Bill with diluted provisions of the previous bill. It was introduced in the Lok Sabha on 2nd August, 2016, and referred to the Standing Committee on Social Justice and Empowerment on 8th September, 2016, for examination. Key provisions of the Bill:

  1. The Bill defines a transgender person as one who is partly female or male; or a combination of female and male; or neither female nor male.  In addition, the person’s gender must not match the gender assigned at birth, and includes trans-men, trans-women, persons with intersex variations and gender-queers.
  2. A transgender person must obtain a certificate of identity as proof of recognition of identity as a transgender person and to invoke rights under the Bill.
  3. The Bill prohibits discrimination against a transgender person in areas such as education, employment, and healthcare.  It directs the central and state governments to provide welfare schemes in these areas.
  4. Offences like compelling a transgender person to beg, denial of access to a public place, physical and sexual abuse, etc. would attract up to two years’ imprisonment and a fine.

The Transgender Persons (Protection of Rights) Bill, 2016, was criticised heavily by the transgender community and civil society for being disconnected with the ground reality of the problems faced by the community.

On 19th November 2017, the Ministry of Social Justice & Empowerment’s decided to re-introduce the Transgender Persons (Protection of Rights) Bill, 2016 in it’s original form. MOSJE’s rejection of the Standing Committee’s report has caused deep consternation and led to calls for the rejection of MOSJE’s Bill altogether. When the people for whom the Bill was ostensibly drafted have rejected it, there is no moral justification for its existence, let alone enactment by the Parliament.

Read our legal analysis of the Standing Committee’s Report and the Bill: The Transgender Persons (Protection of Rights) Bill, 2016 by Tripti Tandon and Suraj Sanap

The Rights of Children for Free and Compulsory Education (Second Amendment) Bill, 2007

The Right to Education Act, 2009 prohibits detention of children till they complete elementary education i.e., class 8.  The Bill amends this provision to state that a regular examination will be held in class 5 and class 8 at the end of every academic year.  If a child fails the exam, he will be given additional instruction, and take a re-examination. If he fails in the re-examination, the relevant central or state government may decide to allow schools to detain the child. [1]

The Muslim Women (Protection of Rights on Marriage) Bill, 2017

The Muslim Women (Protection of Rights on Marriage) Bill, 2017 was introduced by the Minister of Law and Justice, Mr. Ravi Shankar Prasad on December 28, 2017 and passed in Lok Sabha.

  1. The Bill makes all declaration of talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal.
  2. The Bill makes declaration of talaq a cognizable and non-bailable offence. A husband declaring talaq can be imprisoned for up to three years along with a fine.

The Bill has been passed in the Lok Sabha and is being debated in the Rajya Sabha.

Women rights organizations have opposed the Bill on the ground that it makes the Muslim men vulnerable to arbitrary arrests and harassment. They have demanded the Bill to be sent to a Standing Committee or a consultation with the Women rights groups.

Read our analysis of the Bill: The Muslim Women (Protection of Rights on Marriage) Bill 2017, whom does is it serve? By Shivangi Misra

2017 | Eyes on the Supreme Court

Indian Young Lawyers’ Association & Anr. V. The State of Kerala & Ors| Sabrimala Temple Case

A Public Interest Litigation was filed by a devotee of Lord Ayyapa in 1990 in the Kerala High Court for the prevention of entry of women into the Sabarimala Temple on the grounds that Lord Ayyapa whose idol was housed in such temple was a celibate god and women between the ages of 10-50 shall be restricted from entry to prevent any deviation of the idol from celibacy. In response to such PIL, the Kerala High Court in 1991 issued directions to the Travancore Devaswom Board (the managing board of the Sabarimala Temple), to ensure that women between the ages of 10-50 years are prohibited from entering the temple at all times of the year.

Thereafter, a PIL was filed in 2006 by Indian Young Lawyers Association in the Supreme Court of India challenging the rules issued by the State of Kerala and notifications issued by Travancore Devaswom Board that prevented entry of women between the ages of 10-50 years into the temple on the grounds that such rules and notifications are violative of the right to religion of women (Article 25) and right to equality (Articles 14 and 15). A special bench comprising of three judges: Justice Dipak Misra, Justice Gopala Gowda and Justice Kurian Joseph, was constituted in 2016 to hear the matter given its constitutional importance.

Lawyers Collective was approached by the intervenors in this PIL: Ms. Nikita Azad and Sukhjit Azad, founders of the campaign against menstrual discrimination, ‘Happy to Bleed’. Senior Advocate, Ms. Indira Jaising, assisted by Advocates: Ms. Meher Dev and Ms. Radhika Saxena, and with the valuable contributions of Advocate Mr. Mohan Katarki, is representing the intervenors in this PIL on a pro bono basis. Ms. Jaising at the outset, indicated to the court that she is representing the voices of feminists within constitutional parameters. She made submissions challenging the constitutional validity of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 and the notifications issued thereunder by the Travancore Devaswom Board, inter alia, on grounds that they violate: (i) the right to religion of women devotees of Lord Ayyapa (Article 25) (ii) the right of women to equality and nondiscrimination based on sex as they restrict women’s entry based on a biological phenomena of menstruation (Articles 14 and 15) (iii) the rights of women against  religious-social disabilities as secured under Article 17, the Protection of Civil Rights Act, 1955 and the SC/ST (Prevention of Atrocities) Act, 1989, and (iv) Section 3 and 4 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 that prohibit discrimination amongst classes or sections of Hindus in relation to temple entry.

In this conflict of worshipping rights versus customs, all eyes are now on the Supreme Court. The case has been referred to a Bench of five judges to decide the constitutional issue, read the reference order here.

Goolrukh Gupta v. Sam Rusi Chhotiya | Goolrukh Case

A parsi zorastrian woman married to a Hindu under the Special Marriage Act, 1950 prayed for a declaration that a Parsi woman should be entitled to enter the Tower of Silence and to attend the funeral of her parents in the event of their demise. However, the Gujarat High Court held that a Parsi Zoroastrian woman marrying a Hindu man would be deemed to have become Hindu. An appeal is now pending in the Hon’ble Supreme Court. There are issues of constitutional importance involved in this appeal. What is the object of the Special Marriage Act? Can a woman’s legal identity and in particular her religion be deemed to have merged with that of the husband? Does the Constitutional protection of Article 25 extend to the Petitioner’s case? Whether the remedy under Article 226 of the Constitution of India be extended in the Petitioner?

An order of interim relief was passed by the Constitution bench of 5 judges presided by Chief Justice, on an undertaking made by the respondent trustees to allow the petitioners to attend the funeral rites of her parents in the event of their demise, on humanitarian grounds. The matter will be heard in detail over the coming weeks of January 2018.

The outcome of the case will be watched by many awaiting a decision on the interplay between personal law and constitutional values.

Shafin Jahan v. Asokan K.M. | Hadiya Case

A father filed a Habeas Corpus petition in Kerala High Court to find his daughter. His daughter had converted to Islam and married a man practicing Islam. It was submitted in court that there were “forces behind the curtain”, and counsel indicated that there was a presence of an organisational support that was influencing the outcome in this case. Respondent counsel has alleged that the decision to convert was taken by Hadiya due to indoctrination and because she had been brain-washed. The High Court annulled the marriage and restored 24-year old Hadiya to the custody of her father.

Being unable to file a petition herself, her husband Shafin Jahan filed a petition in the SC challenging the order.

Senior Advocate Kapil Sibal and Senior Advocate Indira Jaising appearing on behalf of Hadiya highlighted the personal autonomy of Hadiya, and urged the bench to hear her side of the story, and treat her as the adult she is, with a point of view. Senior Advocate Sibal proceeded to question the applicability of parens patriae, stating that it applies to minors and lunatics. It was urged on behalf of Hadiya that she must be heard in open court and if the bench wished to ask further probing questions it could be done in-camera.

The bench ordered that she be allowed to continue her studies as she wished to, and proceed to complete her house surgery at at Sivaraj Homeopathic Medical College in Salem. It was directed that the State of Kerala would make arrangements for her travel to Salem while being accompanied by a police woman constable in plainclothes.  The Court also directed for the NIA investigation to continue.

The matter is next listed for hearing on January 26th.

Nagaraj v. Union of India

The Supreme Court in November 2017, referred the M. Nagaraj v. Union of India, a 2006 judgment of a 5-judge bench of the Supreme Court for reconsideration. This order was passed by the bench comprising of the Chief Justice of India Dipak Misra, Justice A.K. Sikri and Justice Ashok Bhushan. The challenge came with regard to the interpretation of Article 16(4), Article 16(4A) and Article 16(4B) of the Constitution of India.

In the M. Nagaraj judgment, the court had upheld the validity of Article 16(4-A) of the Constitution subject to certain riders such as ‘backwardness, inadequacy of representation and inadequacy of representation’. The effect of this judgment in essence is that the state government is left to decide whether SC/STs as well as OBCs are to get benefits of reservations in appointments and promotions based on whether or not they are backward or not. The state is required to collect and present quantifiable data indicating backwardness of a particular community in public employment, in addition to Article 335. The petitioners contend that there is no need to collect data on backwardness of SC or ST as by definition they are backward and hence in the Presidential list of SC and ST. A Bench consisting of Justice Kurien Joseph and R. Bhanumathi referred the matter to the CJI to decide whether the decision needs reconsideration.

Read the order here.

Mohammad Siddiq V. Mahant Suresh Dase & Ors | Babri Masjid Case

On 5th December, a three-judge bench comprising of Chief Justice of India Dipak Misra, Justice Abdul Nazeer and Justice Ashok Bhushan heard the appeals filed in the Babri Masjid matter. A total of 13 appeals were filed against the decision of the Allahabad High Court judgeme nt passed on 30.09.2010 which divided the land previously occupied by the Babri Masjid into three parts, one part to the Hindus, one part to Nirmohi Akhara  and the last part to the Suni Waqf Board.

The bench finally fixed the matter for final hearing for February 5th.

Read a brief history and timeline of the case: On eve of 25th anniversary of demolition, what lies ahead?

2017 |Reports

Judges Inquiry Committee | Motion for removal of Justice S.K. Gangele, Judge, Madhya Pradesh High Court | Sexual Harassment

 On 4th March, 2015, 58 members of the Rajya Sabha gave Notice to the Hon’ble Chairman of a Motion for the removal of Justice S.K. Gangele, a Judge of the Madhya Pradesh High Court, Bench at Gwalior under Article 217(1) (c) read with Article 124(4) of the Constitution of India on the following grounds:

  • Sexual harassment of a woman Additional District and Sessions Judge of Gwalior while being a sitting Judge of the Gwalior Bench of the High Court of Madhya Pradesh.
  • Victimisation of the said Additional District and Sessions Judge for not submitting to his illegal and immoral demands, including, but not limited to, transferring her from Gwalior to Sidhi.
  • Misusing his position as the Administrative Judge of the High Court of Madhya Pradesh to use the subordinate judiciary to victimize the said Additional District and Sessions Judge.

The complainant alleged that she resisted the sexual harassment meted out to her by Justice Gangele, at his behest, she was subjected to harassment by constant intense surveillance and also creating problem in providing staff for discharge of her official duties. The respondent judge has completely denied the allegation of sexual harassment and that of being instrumental in the complainant’s transfer.

The committee investigated the charges and the grounds for the removal of the judge.

The final report concluded:

“The allegation that the respondent judge was misusing his position by using the subordinate judiciary to victimize the complainant in discharge of her duties as judicial officer, is not proved.”

However the report also concluded that the ADJ had been illegally transferred to Sidhi contrary to guidelines and hence recommended her reinstatement as a judge.

Read the report here: Judges Inquiry Committee Report

Female Genital Mutilation Report

FGM also known as khatna is widely prevalent in the Bohra community in India and world wide even today. It is portrayed as a religious and cultural practice and is rooted in the patriarchal belief that the sexuality of girls has to be curtailed so that they do not become “promiscuous”. A strong anti FGM movement has taken root in the community over the last few years, with large number of women who have been subjected to FGM openly speaking out against the practice. Speak out on FGM and Lawyers Collective publishes a report on “Female Genital Mutilation: A Guide to Eliminating FGM Practice In India. Prepared over six months, the 57-page report explores not only the physical and psychological trauma on the girl child due to FGM, but also how opposing the practice affects members of the community — for instance, many fear being ostracized — while proposing that the only way to ensure complete elimination is a separate law.

Read the report here: Female Genital Mutilation: A Guide to Eliminating FGM Practice