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Legally Speaking

A discussion on the adoption and marriage rights of LGBTQ + community?

2018 verdict is not the end of issues facing the LGBTQ+ community.

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“Equality means more than just passing laws. The struggle is really won in the hearts and minds of the community, where it really counts”.

—Barbara Gittings

The LGBTQ community, that is, lesbians, gays, bisexuals, transgenders, queer and more are evidently and civilly an important section of our society and no more extremist or conservative political influencers can keep blindfolds on. Across the globe, every country has more than 4-5% of their population who desires to be treated and given all the rights, given to a heterosexual couple or individual. In India, from the colonial-era, under the British Raj homophobia was introduced and distorted the foundation of gender equality and justice. Where in India the community is granted with few rights after seventy-one years of independence, many countries still uphold it in the column of criminal offences, and are punished and prosecuted. No doubts, the rights of the community were ignored and unseen earlier even after the establishment of human rights organisations and institutions in 19th century. They were also been identified as refugees in many countries, as when their own country tries to prosecute them, they were eventually timorous and fiddle footed. When the world talks about the equality and justice irrespective of genders(sex), a whole lot of community was shunned and snubbed. With the course of time, many activist, lawyers and leaders of community has step forward and protested for their Rights, dignity and an equal status in the society as others. Where in countries like America, Canada, Netherlands, UK, Spain, etc, are some gay-friendly countries and countries like India, South Africa, Thai countries are still protesting for all the civil and legal rights and in some counties especially the Islamic ones, like Pakistan, Afghanistan, Saudi Arab etc, list it under criminal offences and same-sex activities are strongly condemned and are punished even with death and life imprisonment. Talking specifically about India, the legal system still has not given homosexuals all the legal rights same as a heterosexual.

SUPREME COURT 2018 VERDICT ON SECTION 377

On September 6, 2018 Supreme Court says, “history owes apology to LGBT community”. The supreme Court of India partially struck down colonial era rule, in the landmark case of Navtej Singh Johar & Ors v. UOI decriminalising all consensual sec among adults, including homosexuals. This case overturned a previous ruling (Suresh Kumar Koushal v. Naz Foundation). The court determined the constitutional validity of Section 377 of the Indian Penal Code. Section 377 of the Indian Penal Code is a section of IPC introduced in 1861 during the British Rule in India, it makes sexual activities “against the order of nature” illegal. It was upheld by the Supreme Court that the application of Sexual 377 to consensual homosexual sex between adults was unconstitutional, “irrational, indefensible and manifestly arbitrary”, but that Section 377 remains in force relating to sex with minors, non-consensual sexual acts, and bestiality. On 24 August 2017, the Supreme Court upheld the right to privacy as a fundamental right under the Constitution in the landmark puttaswamy judgement. The Court also called for equality and condemned discrimination, stated that the protection of sexual orientation lies at the core of the fundamental rights and that the rights of the LGBT population are real and founded on constitutional doctrine. This judgement was believed to imply the unconstitutionality of section 377. The judgment was given by a five judges bench comprising the then Chief Justice of India Dipak Misra, Justices R. F. Nariman, D. Y. Chandrachud, A. M. Khanwilkar and Indu Malhotra.

377. Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

CURRENT LGBT RIGHTS AND LAWS IN INDIA

Sex as it occurs in Article 15, is not merely restricted to the biological attributes of an individual, but also includes their “sexual identity and character”.

— Supreme Court of India

In India, with the passage of time many protests occurred by the LGBT community for their rights and in which the judiciary and parliament has been active and effective. After the 2018 verdict, the Transgender Persons (Protection of Rights) Act, 2019 was adopted that bans unfair discrimination against transgender people in educational establishment and services, employment, healthcare services, access to the “use of any goods, accommodation, service, facility, benefit, privilege or opportunity dedicated to the use of the general public or customarily available to the public”, the right to movement, the right to “reside, purchase, rent or otherwise occupy any property”, the opportunity to stand for or hold public or private office, and in government or private establishments.

Article 15 of the Indian Constitution was stated as a major statement, as it states that:

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition.

To be Noted: Despite these constitutional interpretations, no explicit law has been enacted to ban discrimination on the basis of sexual orientation. Concerning employment, Article 15 only extends to discrimination from the state or government bodies

Discrimination, bullying and ragging targeted at a student on the ground of their sexual orientation or gender identity is prohibited under the UGC Regulation on Curbing the Menace of Ragging in Higher Educational Institutions (Third Amendment), 2016.

TRANSGENDER RIGHTS IN INDIA

India has traditionally recognised a third gender population, considered by society as neither male or female. Such individuals are known as Hijras. On 15 April 2014, the Supreme Court of India declared transgender people a socially and economically suppressed class entitled to reservations in education and jobs, and also directed union and state governments to frame welfare schemes for them. The Court ruled that transgender people have a fundamental constitutional right to change their gender without any sort of surgery, and called on the Union Government to ensure equal treatment for transgender people. The Court also ruled that the Indian Constitution mandates the recognition of a third gender on official documents, and that Article 15 bans discrimination based on gender identity.

The Transgender Persons (Protection of Rights) Bill, 2016, which was initially introduced to Parliament in August 2016, was re-introduced to Parliament in late 2017. Some transgender activists have opposed the bill because it does not address issues such as marriage, adoption and divorce for transgender people.

HISTORICAL EVIDENCES THROUGH THE HINDU SCRIPTURES

Hinduism has always acknowledged transgenders from ancient times, and marked as a symbol of positivity. They were respected and even feared by their anger. Transgenders had a huge significance from the time of Mahabharata, where the famous transgender Shikhandi is known, she was born as a female but identified as a male and later married a woman. The Naradasmrti and the Sushruta Samhita, two important scriptures from ancient India relating to dharma and medicine, respectively, declare homosexuality to be unchangeable and forbid homosexuals from marrying a partner of the opposite sex. The Kama Sutra, a Sanskrit text on human sexual behaviour, uses the term tritiya-prakriti to define men with homosexual desires and describes their practices in great detail.

MARRIAGE AND ADOPTION RIGHTS TO THE LGBT COMMUNITY

We all say that parents are equivalent to god and no one could be empathetic, supportive, lovable than a parent, and a parent’s love towards its child is never-ending and undemanding, so the question arises that Can a Homosexual or a transgender mother be any less motherly or affectionate? There is an ever increasing and also a present rate of infertile couples, but still India’s adoption rate is so abysmally low as there is also an accelerating rate of orphans in India. According to United Nations Children’s Fund (UNICEF), India has 29.6 million orphaned and abandoned children in 2018 and by 2020 the number has increased to 31 million. So, it could mean that a child can be grown all by his/her own, away from a home, parents, guardians, love, care, protection rather than giving them to a homosexual couple. There needs to be a huge readjustment in the government’s focus on child development because currently millions of children are being wasted and denied a future of opportunities to realise themselves. The government’s Central Adoption Resource Authority (CARA) adoption statistics show that in 2010 there were 5,693 in-country adoptions, while in 2017-2018, there were only 3,276 in-country adoptions. These are disgraceful figures for a population as mammoth as India’s. And currently, there are approximately only 20,000 parents in line waiting to adopt, compared to the 27.5 million couples who are actively trying to conceive but are experiencing infertility, according to the Indian Society of Assisted Reproduction. In any nation children are the future capital, an asset, who need to be nurtured to protect its demographic, economic conditions as by 2050 the population explosion will destroy and distort the entire community and not one. Its high time to discriminate and differentiate between genders, race, colour, ethnicity, and should be unified for betterment.

CONCLUSION

The concluding lines will be as simple as ever, as now the need of hour is to halt gender discrimination, to reduce the gender gap, to introduce equality and justice for every living human being in India. LGBT community and their rights had been supressed from a long time, they had been differentiated from the heterosexual couple, denied of equal rights, and now the judgment should be in the favour of equality and pride and not just a gender.

Hinduism has always acknowledged transgenders from ancient times, and marked as a symbol of positivity. They were respected and even feared by their anger. Transgenders had a huge significance from the time of the Mahabharata, where the famous transgender Shikhandi was born as a female but identified as a male and later married a woman. The Naradasmrti and the Sushruta Samhita, two important scriptures from ancient India relating to dharma and medicine, respectively, declare homosexuality to be unchangeable and forbid homosexuals from marrying a partner of the opposite sex.

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Legally Speaking

No need for a NOC to transfer flats built on land leased to the developer: SC

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Supreme Court

The Maharashtra government cannot require a “no objection certificate” from the collector in order to register the transfer of flats in cooperative societies built on land not provided directly by the state, the Supreme Court ruled last week.

The Court was hearing a petition filed by the state government challenging a decision issued by the Bombay High Court on September 29, 2009, which held that the state could not insist on payment of a premium and the issuance of a NOC for registering the transfer of plots when there is clear evidence that the land was allotted first to builders who built flats and then sold it to purchasers. Following that, the owners formed a cooperative society.

The HC decision was based on a petition filed by Aspi Chinoy, a senior advocate in Mumbai, and the Cuffe Parade Residents Association, who were residents of the 22-story Jolly Maker Apartments.

The top court bench of justices BR Gavai and BV Nagarathna dismissed the state’s appeal on Friday, “Since the land was not allotted to a society but to a builder on lease, who has constructed flats for private individuals, who have subsequently formed a Cooperative Society, the 1983 Resolution and 1999 Resolution would not be applicable to the members of such a society.”

The state had relied on two resolutions, dated May 12, 1983 and July 9, 1999, to levy a premium as a condition for granting permission for flat transfers.

The Resolution of 1983 provided for the grant of land at reduced rates to various categories of co-operative societies.

Following the 1983 Resolution, the government issued a modified resolution in 1999 that applied to co-operative societies to whom government lands were sanctioned at reduced rates.

Chinoy had approached the HC, questioning the resolutions’ relevance to their plot. He had challenged the collector’s letter of June 27, 2000 to the sub-registrar, Bombay City, Old Custom House, directing him not to register any transaction involving the transfer of flats in the buildings located in B.B.R. Block Nos. 3 and 5, Nariman Point and Cuffe Parade, Bombay, without first obtaining a NOC from the collector.

According to the residents, their building dates back to 1971, when the state government solicited bids for the lease of Plot Nos.93, 94, 99, 100, and 121 from Block V Back Bay Reclamation Estate. In response to the notice, M/s. Aesthetic Builders Pvt. Ltd. successfully won the bid and completed the construction of flats. On December 12, 1975, the building’s occupancy certificate was issued. Two years later, the owners established the Varuna Premises Cooperative Society Limited.

The bench said, “The present case is not a case where the land is allotted to a co-operative society by the government. The land was leased out to the builder, who was the successful bidder and after the ownership of flats was transferred to the private individuals, a society of the flat owners was formed.” The judges also lifted the stay on the refund order issued by the Supreme Court.

Chinoy claimed that the flat in which he lives was first sold to A Madhavan in 1972 and then to Reshmidevi Agarwal in 1978.

Chinoy then entered the picture by signing an agreement with Agarwal in December 2020 in exchange for five shares in the society.

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Seeking centre’s response on plea for digitisation of medico-legal documents: Madras High Court

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The Madras High Court in the case Dr. Mohamed Khader Meeran A.S v. State of Tamil Nadu observed and has recently sought the response of the Central and the State government on a plea seeking computerisation of medical records having legal importance, including postmortem report, injury report/ accident, etc.
The bench comprising of Chief Justice T Raja and Justice D Krishnakumar heard the case.
It was submitted by the petitioner, Dr Mohammed Khader Meeran that Medico Legal Examination and Postmortem Reporting (MedLeaPR) is a software developed by the National Informatics Centre (NIC) to issue various medico-legal reports and certificates digitally and to store the data in cloud storage in the encrypted form. Presently, the software is being used by many states and union territories in the country.
It was also directed by Madras High Court to implement this software in the state of Tamil Nadu by January 1st 2021. Thus, even though more than an year has passed, no effort has been made by any authority to implement the same, it was averred. The petitioner added that there is no standard proforma that exists in the State.
It was also contended by him that the present proforma is not at all at par with the standards prescribed by the Supreme Court in the case Samira Kohli Vs Dr. Prabha Manchanda And Anr., Civil Appeal No.1949 of 2004.
Further, the petitioner also submitted that documents like Injury Report, Post-Mortem Report (including viscera/chemical analysis report), report of examination after Sexual assault, age estimation reports have legal importance. However, if these are computerised, it would increase the efficiency of hospital administration, governments and the judiciary also.
The petitioner seek directions from the court to implement this software in all the Government hospitals.

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Bail can’t be cancelled without giving notice to accused, giving him an opportunity of being heard: Allahabad High Court

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The Allahabad High Court in the case Rajendra Kumar and 2 Others v. State Of U.P. Thru Prin Secy Home And Another observed that the cancellation of bail cannot be done without giving notice to the accused and giving him an opportunity of being heard.
The bench comprising of Justice Ajai Kumar Srivastava-I observed and has set aside the order of the Sessions Judge, Raebareli cancelling the bail granted earlier to Rajendra Kumar and 2 others in connection with a criminal case.
It was noted by the High Court that the impugned order cancelling the bail was passed without issuing notice to the accused/applicants and without affording them a reasonable and sufficient opportunity of hearing and the same was patently illegal being in flagrant violation of the rulings of the Supreme Court.
With this regard, it was also referred by the court to Apex Court’s rulings in the cases of Samarendra Nath Bhattacharjee vs. State of W.B. and another case of (2004) 11 SCC 165, Mehboob Dawood Shaikh vs. State of Maharashtra (2004) 2 SCC 362, and the case P.K. Shaji alias Thammanam Shaji vs. State of Kerala.
In the present case the accused/applicants were granted bail vide by the Sessions Judge, Raebareli on November 22, 2021. Later, the court was informed that the accused allegedly threatened the witnesses and the complainant to desist from prosecuting the case after being granted bail.
The court finds that the aforesaid conduct of the applicants was violative of the conditions of bail subject to which they were enlarged on bail, it has been directed by the trial court that the applicants be taken into custody and also passed the impugned order cancelling the bail granted to the applicants.
The Applicant challenging the order, moved the Court arguing that in this case and their bail was cancelled without giving them any opportunity of being heard.
The court noted that it is a settled law that once bail has been granted by a competent court after due consideration of the facts and circumstances of the case and the same should not be cancelled in a mechanical manner without there being any supervening circumstance(s) which are not conducive to the fair trial.
However, it was not made clear by the court that trial court would be at liberty to issue notice to the applicants stating therein the grounds which are to be considered by it for cancellation of bail being granted to the applicants.

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Legally Speaking

Dispute Of Unregistered Partnership Firm Can Be Referred To Arbitration, Bar U/S 69 Partnership Act Not Applicable

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The Calcutta High Court in the case Md. Wasim and Another v. M/S Bengal Refrigeration and Company and Others observed while hearing an application filed under Section 11 of the Arbitration and Conciliation Act, 1996 (‘Arbitration Act’) for appointment of an arbitrator to resolve the dispute between the parties, wherein it was held that the bars for instituting a suit or any other proceeding under Section 69 of the Indian Partnership Act, 1932 (‘Partnership Act’) shall not be applicable to arbitral proceedings under Section 11 of the Arbitration Act.
The present case of the applicants was that, although unregistered, a partnership deed was executed between the applicants and the respondents containing an Arbitration Clause mandating the referral of all disputes and questions to a person who ahs been appointed unanimously to act as an arbitrator.
However, a dispute arose between the parties, subsequent to which, the applicants sent a notice to the respondents invoking the arbitration clause and proposing the name of an advocate as sole arbitrator to resolve the dispute. The respondent denied the appointment of an arbitrator alleging that the allegations raised by the applicants in their initial notice were false. The applicants filed the application under Section 11 of the Arbitration Act for appointment of an arbitrator, aggrieved in these circumstances,
The application was filled by the applicants and it was argued by the respondents that since the partnership firm was ‘unregistered,’ the dispute could not be referred to an arbitrator in view of the application of and the bar created by Section 69 of the Partnership Act, 1932. Further, their case was that since sub-sections (1) and (2) read with sub-section (3) of Section 69 of the Partnership Act restrict the filing of suit by any person as a partner of an unregistered firm including by means of a claim under ‘other proceedings,’ the appointment of an arbitrator could not be seek by the applicant, the partnership deed in their case being ‘unregistered.’
It was observed that Chief Justice Prakash Shrivastava relied on the Supreme Court decision in Umesh Goel v. Himachal Pradesh Cooperative Group Housing Society Limited and on the Madras High Court decision in the case M/s. Jayamurugan Granite Exports v. M/s. SQNY Granites, wherein both of which held that arbitral proceedings shall not come under the expression ‘other proceedings’ of Section 69(3) of the Partnership Act, 1932 and that the ban imposed under Section 69 can have no application to arbitration proceedings and as well of the arbitral award under Section 11 of the Arbitration Act.
Accordingly, it was held by the Calcutta High Court that non-registration of the partnership firm would not attract the bar under Section 69 of the Partnership Act, so far as institution of proceedings as stated under the provision of Section 11 of the Arbitration Act is concerned.

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Supreme Court: Terms Of Invitation To Tender Are Not Open To Judiciary Scrutiny Unless They Are Arbitrary, Discriminatory Or Mala Fide

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Supreme Court

The Supreme Court in the case Airports Authority of India versus Centre for Aviation Policy observed that the terms of invitation to tender are not open to judicial scrutiny, the top court has set aside a Delhi High Court’s order which had quashed the Airport Authority of India’s tender conditions for selecting Ground Handling Agencies (GHA) agencies at Group D Airports.
The bench comprising of Justice MR Shah and the Justice Krishna Murari observed and has stated that the Delhi High Court committed a “serious error” by entertaining a writ petition at the instance of a third party- an group of advocacy called Centre For Aviation Policy -when none of the GHAs challenging the tender conditions. Thus, the writ petition should have been dismissed on the ground of locus standi (Airports Authority of India versus Centre for Aviation Policy).
The court observed that in view of the matter, it is not appreciable how respondent No.1 (CAPSR) – original writ petitioner being an NGO would have any locus standi to maintain the writ petition, wherein challenging the tender conditions in the respective RFPs. Respondent No.1 cannot be said to be an aggrieved party in the case.
The Court stated that the even on merits, the High Court should not have interfered with the tender conditions, observed the Supreme Court. While referring to various precedents regarding limited scope of judicial interference in tender conditions
Further, the court stated that as per the settled position of law, the terms and conditions of the Invitation to Tender are within the domain of the tenderer/tender making authority and are not open to judicial scrutiny, unless they are arbitrary, discriminatory or mala fide and as per the settled position of law, the terms of the Invitation to Tender are not being open to judicial scrutiny and the same being in the realm of the contract. The Government/tender/tenderer making authority must have a free hand in setting the terms of the tender.
The bench observed and has stated that the court cannot interfere with the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been wiser, fair, or logical.
It was observed that the AAI approached the Supreme Court against the order of the High Court dated July 14, 2021, by which it has allowed the said writ petition of the NGO and has struck down the decision to carry out region-wise sub-categorisation of the 49 airports falling under Group D-1 and the stipulation that only the previous work experience in respect of providing the GHS to scheduled aircrafts shall be considered and will be acceptable. It was also found by the High Court that the revised minimum Annual Turnover criteria of INR 18 crores as discriminatory and arbitrary.
Accordingly, the Supreme Court noted that the AAI explained before the High Court the rationale behind the respective conditions, namely, clustering of 49 airports into 4 region-wise sub-categories/clusters; criteria for evaluation of 36 months having experience in the past 7 years in providing 3 out of 7 Core GHS and the financial capacity and an Annual Turnover of Rs. 30 crores (modified as Rs. 18 crores) in any of the one of last three financial years.
The court stated that while having gone through the respective clauses/conditions which are held to be arbitrary and illegal by the High Court, the court is of the opinion that the same cannot be said to be malafide or/ arbitrary and/or actuated by bias. However, it was for the AAI to decide its own terms and fix the eligibility criteria.

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Court sends Waqf Board scam co-accused to 14 day judicial custody

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A Delhi court on Monday remanded Kausar Imran Siddiqui alias Laddan, co-accused in Delhi Waqf board scam case, to 14 days custody.  

AAP MLA Amanatullah Khan is the primary accused in the case and is out on bail. The Anti-Corruption Bureau (ACB) has stated that Laddan is a fund manager for Khan. The Duty Sessions Judge at Rouse Avenue Court also expressed its displeasure over the non-presence of ACB on the previous date.  

ACB had submitted to the court Ladan’s “handwriting sample” and sought 7 days of custody for him.

The court observed that the agency had not given any reasonable answer for its absence on previous occasion. Thereafter, he was sent to 14 day judicial custody.

AAP MLA was arrested for alleged irregularities in appointment in Delhi Waqf Board during his chairmanship.
Accused Kausar Imran Siddiqui alias Laddan was produced on a production warrant before the court on 27th September. He was interrogated and arrested with the permission of the court.

Laddan’s name came into the frame, when additional public prosecutor Anil Srivastava opposed Khan’s bail plea. He stated that a diary was recovered from Ladan’s house.  It was alleged that he was Khan’s fund manager.  Earlier, the (ACB) had said that money was sent to Dubai and other money transactions need to be investigated. It also stated that a large amount of money was transferred to a party via Dubai. There were 100 people who either received or paid money to Laddan. Out of these 37 people have transactions of crores of rupees.                                                                                                                                                                          

This diary also has an entry about one Zeeshan Haider, who received crores of rupees. He is also a close associate of the accused, ACB had argued. The ACB has also submitted that Laddan is a nominated functionary of a political party. He has photographs with the accused during an iftar party. Additionally, 14 crores sale deed is recovered, which is said to be a ‘Benami property’.

Previously, Ladan was in judicial custody in another case lodged at Jamia Nagar police station. He was arrested from Telangana.

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