At a crucial meeting of the Collegium held on January 17 the apex court has reiterated the selection of five names and significantly recorded that the Centre can’t repeatedly send back proposals. Thereby, the Collegium has now recommended the elevation of 17 advocates and three judicial officers as judges of the high courts of Karnataka, Allahabad and Madras. The five names of advocates that have been sent back by the SC collegium for elevation as HC judges are Saurab Kirpal, son of former CJI BN Kirpal, Amit Banerjee, Sakya Sen, Somasekhar Sundareshanand R John Sathyan. 

The Collegium consisting of Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul and Justice KM Joseph held.

“All citizens have the right to free speech and expression under Article 19(1)(a) of the Constitution. Expression of views by a candidate does not disentitle him to hold a constitutional office so long as the person proposed for judgeship is a person of competence, merit and integrity.” 

With this decision significant developments have taken place. In recommending, again, it’s last year’s recommendation to the Centre to appoint Advocate Somasekhar Sundaresan as Judge of the Bombay High Court the Supreme Court has held that his views on social media cannot be used to infer he’s highly biased opinionated person.

Background: The Collegium of Bombay High Court recommended the name of Advocate Somasekhar Sundaresan on  October 4, 2021. On February 16, 2022, the Supreme Court Collegium recommended the name of Somasekhar Sundaresan for appointment as a Judge of the Bombay High Court. On 25 November, 2022, the Government has sought reconsideration of the said recommendation.

Reportedly, the Centre’s objection was that he has aired his views in the social media on several matters which are the subject matter of consideration before the courts. According to media reports, reiterating Advocate Somasekhar Sundaresan’s name the Collegium said,

“The manner in which the candidate has expressed his views does not justify the inference that he is a “highly biased opinionated person” or that he has been “selectively critical on the social media on the important policies, initiatives and directions of the Government” (as indicated in the objections of Department of Justice) nor is there any material to indicate that the expressions used by the candidate are suggestive of his links with any political party with strong ideological leanings.”

The remarks added that Advocate Sundaresan has specialised in commercial law and would be an asset to the Bombay High Court which has a large volume of cases of commercial and securities laws, among other branches. “The Department of Justice has adverted to paragraph 175 of the Second Judges Case [(1993) 4 SCC 441] to the effect that the candidate to be selected must possess high integrity, honesty, skill, high order of emotional stability, firmness, serenity, legal soundness, ability and endurance. The candidate fulfils these qualities.”

“The Collegium, therefore, resolves to reiterate its recommendation dated February 16, 2022 for appointment of Shri Somasekhar Sundaresan, Advocate, as Judge of the Bombay High Court.”

In addition, the Supreme Court Collegium has reiterated its recommendation for elevation of Advocate R. John Sathyan as a Madras High Court Judge, after Centre returned the file citing an online article critical of Prime Minister Narendra Modi that was shared by Sathyan.

The Collegium comprising CJI DY Chandrachud, Justices SK Kaul and KM Joseph has further said that all the consultee-Judges at the relevant time, when the recommendation was first made, had found him suitable for elevation and that nothing adverse has come to notice against his integrity. Reportedly, Sathyan had also shared a post he had shared a news article which was critical of PM Narendra Modi which was objected to by the union of India. His file was also returned since he had shared a post regarding an alleged suicide of a medical aspirant in 2017.regarding a medical aspirant committing suicide in 2017, which contained tags such as tag ‘political betrayal’, ‘shame of you India’.

The proposal to elevate him was made in February last year. The IB report notes that he does not have any overt political leanings. In this backdrop, the Collegium said,

“adverse comments of the IB extracted above in respect of posts made by him i.e. sharing an article published in ‘The Quint’ and another post regarding committing of suicide by a medical aspirant candidate in 2017 will not impinge on the suitability, character or integrity of Shri Sathyan. The Collegium is of the considered opinion that Shri R. John Sathyan is fit and suitable for being appointed as a Judge of the Madras High Court.“

The Collegium therefore reiterated its earlier proposal and recommended that he be given precedence in the matter of appointment as Judge over certain names separately recommended today for appointment as Judges of the Madras High Court.

Victory for Gay Rights, Diversity

Pushing forward with a historic move towards diversity in gender orientation, the SC Collegium has yet again recommended the name of Advocate Saurabh Kirpal for elevation as a judge of the Delhi High Court (HC). Kirpal’s name was recommended unanimously by the Collegium of the Delhi HC in 2017 and has been pending for over five years. Kirpal’s elevation to the bench is being objected to by the union government due to the Swiss nationality of his partner as well as his intimate relationship and openness about his sexual orientation. 

Rejecting the centre’s objection to his sexuality, the SC collegium in its resolution has said, “The fact that Mr Saurabh Kirpal has been open about his orientation is a matter which goes to his credit. As a prospective candidate for judgeship, he has not been surreptitious about his orientation.”

“In view of the constitutionally recognised rights which the candidate espouses, it would be manifestly contrary to the constitutional principles laid down by the Supreme Court to reject his candidature on that ground.”

The resolution further says that he possesses competence, integrity and intellect, and his appointment would add value to the Bench of the Delhi HC, and provide inclusion and diversity.

On the issue of the union government’s objection to his partner’s nationality, the resolution says, “There is no reason to pre-suppose that the partner of the candidate, who is a Swiss National, would be inimically disposed to our country since the country of his origin is a friendly nation. Many persons in high positions including present and past holders of constitutional offices have and have had spouses who are foreign Nationals. Hence, as a matter of principle, there can be no objection to the candidature of Shri Saurabh Kirpal on the ground that his partner is a foreign National.”

While reiterating the names of advocates Amit Banerjee and Sakya Sen, whose names were first approved by SC collegium in 2019 for elevation as Calcutta HC judge but were sent back, the Collegium on Wednesday said, “It was not open to the Department to repeatedly send back the same proposal which has been reiterated by SC Collegium after duly considering the objections of the Government.”

Interestingly, advocate Banerjee is the son of former apex court judge Justice U C Banerjee, who headed a commission that in 2006 ruled out conspiracy angle in the 2002 Sabarmati Express fire tragedy at Godhra that killed 58 ‘kar sevaks’. The Godhra incident had triggered widespread communal riots in Gujarat.

Advocate Sen is the son of Justice Shyamal Sen, who was elevated as a permanent judge of the Calcutta High Court in February 1986 and later became the chief justice of the Allahabad High Court. Justice Sen also served as the Governor of West Bengal from May 1999 to December 1999. Justice (retd) Sen had headed an inquiry commission which probed the multi-crore Saradha Group ponzi scam.

The Collegium in its remarks made public, also stated that views on social media attributed to the candidate, do not furnish any foundation to infer that he is biased.

The collegium also recommended for giving precedence to him in the matter of appointment over three other names (Judicial officers Periyasamy Vadamalai, Ramachandran Kalaimathi and K. Govindarajan Thilakavadi) which the collegium further recommended for elevation as Madras HC judges. 

(Based on reports by New Indian Express and LiveLaw)

Related:

Centre returns Saurabh Kirpal’s file to Collegium for the 5th time

SC Collegium recommends elevation of first openly gay judge to Delhi HC

Madras HC bats for LGBTQIA+ again, issues more directions to police, media

The post Independent Views, Gender Orientation must not affect candidacy for judgeship: SC appeared first on SabrangIndia.

In a Sunday referendum (September 25), Cubans approved gay marriage and adoption overwhelmingly backed by the government that also boosted rights for women, the national election commission said on Monday.More than 3.9 million voters voted to ratify the code (66.9%), while 1.95 million opposed ratification (33%), Alina Balseiro Gutierrez, president of the commission, said on state-run television on Monday. 

“Justice has been done,” Cuban President Miguel Diaz-Canel wrote in a tweet. “It is paying off a debt with several generations of Cuban men and women, whose family projects have been waiting for this law for years,” he said. 

Media reports including one on Reuters explained that the 100-page “family code” legalizes same-sex marriage and civil unions, allows same-sex couples to adopt children, and promotes equal sharing of domestic rights and responsibilities between men and women. An analysis of the preliminary findings of the results from the electoral commission showed 74% of 8.4 million Cubans eligible to vote participated in the Sunday referendum.

Official Twitter accounts showed the room erupting in applause and the president leaning back and smiling at the news. It was the Cuban president himself who led the campaign for the adoption of the code. Sunday’s turnout in the referendum by Cuban standards was relatively modest, and a 33% ‘no’ vote relatively large in the communist-run country, where previous referendums have seen the government position receiving near unanimous approval.

The dissent is an indication of both how Cuba is changing and the current dire economic circumstances, which have seen long power outages and lines for food, medicine and fuel.

Sunday’s vote was also the first of its kind since most residents have had access to the internet, which has let dissenting views spread more widely. 

India and same sex marriage 

As of 2022, same sex marriages are not legally recognised in India by the law though several couples do co-habit together. In the pathbreaking 2018 judgement, Navtej Singh Johar v/s Union of India, the Supreme Court that upheld an earlier landmark judgement of the Delhi High Court de-criminalises homosexuality, also ruled that same sex couples would be granted the basic right of companionship so long as it is consensual, without coercion and force. The issue of legal marriage lies pending in the courts. In 2020, Delhi HC issues notice to Union in a plea to recognise same sex marriage

The court is slated to hear the matter on marriage equality of same sex couples under Hindu Marriage, Special Marriage and Foreign Marriage Act The Delhi High Court has issued a notice to the Union of India in a plea seeking registration of marriage of same sex couples under the Hindu Marriage Act.  The petition was filed by members of the Lesbian Gay Bisexual Transgender+ (LGBT+) community and activists Abhijit Iyer Mitra, Gopi Shankar M, Giti Thadani and G. Oorvasi, as reported by The Hindu. 

The plea submits that under The Hindu Marriage Act, Section 5 clearly lays down that marriage can be performed between ‘any two Hindus’ under the Act. Since the language in the legislation is gender neutral, it should apply to same sex marriages. While there is no statutory bar under the Hindu Marriage Act and Special Marriage Act against gay marriages, they were not being registered throughout the country. “As a result of the same, there are many benefits that would otherwise be available to heterosexual married couples that are not available to them,” the plea added.

Further, the prohibition of same sex marriage on the basis of sexual orientation and gender identity was violative of the principle of equality guaranteed under the Constitution of India, stated the plea citing examples of Australia, Germany, Canada, Spain, South Africa, Brazil and England, where same-sex marriages are legal. Apart from this petition, the High Court noted that two other similar petitions are pending before the court. One petition was filed by two women seeking a direction to be issued to the Marriage Officer, South East Delhi to solemnise their marriage under the Special Marriage Act. The second petition has been moved by two men, who got married in the United States but their marriage registration was denied under the Foreign Marriage Act (FMA) as it excluded same-sex marriages.

Since, the petitions deal with the same issue under the Hindu Marriage Act, Special Marriage Act and Foreign Marriage Act, the court has clubbed the pleas.

Taiwan, became 1st Asian Country to Legalize Gay Marriage (2017) 

In a landmark judgement delivered on May 23, 2017 judges from Taiwan’s Highest Court ruled in favour of Chi Chia-wei, legalizing gay marriage, making the small, island nation the first in Asia and setting a precedent for other Asian countries.

The court has given the country’s parliament two years to amend existing laws or create new ones to ensure equal treatment of individuals with respect to marriage laws.

Back home in India, the Delhi High Court, in the case of Naz Foundation V. Government of NCT Of Delhi And Others, had ruled in favour of the LGBT community in 2009. The Court had asked the Indian parliament to amend laws according to the recommendations of the 172^nd Law Commission of India Report. The report may be read here. Despite this and the 2018 SC judgement, progress has been slow. The LGBT community still suffers from exploitation, discrimination and denunciation.

Just like India, in Taiwan the fight for rights of the LGBT community, is not recent. The issue of same-sex marriage has been a source of contention for decades in Taiwan. The key plaintiff, Chi Chia-wei, a gay-rights activist, has been fighting for gay rights since the 1980s and first sought a gay marriage license 16 years ago according to Focus Taiwan Reports. Chi Chia-wei’s suit claims that the prohibition against same-sex marriage violates the rights guaranteed in the Constitution by Article 7 which declares that all citizens, irrespective of sex, religion, ethnic origin, class or party affiliation, to be equal before the law, and Article 22, which states that all other freedoms and rights of the public that are not detrimental to social order or public welfare are guaranteed under the Constitution.

The obiter dicta of the Grand Justices reflect their liberal, reformist outlook.The Justices called sexual orientation an “immutable characteristic that is resistant to change.” This, in our opinion is the most logical definition of the sexuality of an individual, knowing that it is internal and natural and not an externally developed sentiment. The court further said that, “Allowing single people to have the autonomy to decide whether to marry and whom to marry, is vital to the sound development of personality and safeguarding of human dignity, and therefore is a fundamental right.”

The alliance of Taiwan Religious Groups for the Protection of the Family and representatives from Buddhist, Taoist, Christian and Lamaist groups, rallied against this decision of the Court. However, it was the key campaign issue for President Tsai Ing-wen, who took office one year ago, and the legislature has been weighing a change to Taiwan’s Civil Code.

Taiwan, in 2017, joined 20 other countries from across the world which have legalised same-sex marriage. Netherlands was the first to legalise same-sex marriage(2000), followed by Belgium (2003), Spain and Canada (2005), Finland, Ireland and United States (2015) and now Taiwan (2017). India, certainly has a lot learn from this international reform. The first step in the right direction was taken by the Delhi High Court in 2009 as discussed above, but the Supreme Court took a U-turn in 2013, when it overruled the order of the Delhi High Court. This was then set aside in 2018.

The Supreme Court Judgement may be read here.

Contradiction in Indian law 

While Section 377 of the Indian Penal Code, 1860 criminalised homosexuality primarily on the basis of the form of sexual intercourse till 2009 and then 2018, the Constitution of India – the supreme law of the land, protects and promotes diversity, ensures an egalitarian society where freedom should no longer be a privilege. Although Part III of the Constitution provides certain rights to the citizens, it only covers those citizens who form part of the ‘popular morality’.  The LGBT community does not form part of this ‘popular morality’ and hence is neglected. It is the right of each member of the LGBT community to be treated equally like other citizens, to live with dignity as enshrined in A 15 (1), (2), Part III, Constitution of India. As given, “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”
 

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On May 17, 2022, the Ministry of Law and Justice submitted to the Delhi High Court an affidavit in response to the application which seeks live streaming of the proceedings in the case regarding recognition and registration of same sex marriages in the country.

The Centre has opposed live streaming of the proceedings arguing that neither does the matter involve violation of any fundamental right, nor is it a matter of national importance. It has been urged in the reply that the permission for live streaming of the proceeding should not be granted as it would not serve any purpose.

The application for live streaming was filed by three professionals based out of Mumbai and Karnataka, in the petition filed by Abhijit Iyer Mitra seeking registration of marriages of LGBTQIA couples under the Hindu Marriage Act.

Contents of the reply

The Ministry had claimed that the applicant is trying to create unnecessary hype of the matter. As reported by the Live Law, the Centre’s response states, “A matter needs to be agitated by the party on merits and the court to decide on the basis of law and facts and not soliciting or evoking public attention. The applicant is attempting to create unnecessary hype of the matter being considered by this Court.”

The reply relies upon the case Swapnil Tripathi v/s. Supreme Court of India for the live streaming of court proceedings in the matters which are of Constitutional and National importance. The response further states, “The instant matter is not a fit case where live streaming of the proceeding is desirable as it affects the cause of administration of justice. Before allowing live streaming of proceeding appropriate regulatory framework needs to be put in place. It is further submitted that the Union of India reserves the right to file a more detailed affidavit in reply to the present application with the leave of this Hon’ble Court, if necessary, at a later stage as the present affidavit has been filed in the limited time available with the Respondent.”

The reply further adds that the majority of the Indian population is not affected by the present matter and states that the applicant is trying to create a dramatic impression of the proceedings. “Dispensation of justice does not have any bearing on the number of persons who watch the court proceedings or subscribing to the YouTube Channel showing such proceedings The Hon’ble Court does not opt for or seek public appreciation while dealing with matters involving questions of law and facts Social reach of the live streaming cannot be a part of dispensation of justice,” the reply states, as quoted by Live Law.

The reply also states that the sole intention of the applicant is to sensationalise the whole matter by making it a subject of public interest. “Merit of a matter in the court and its outcome does not depend on any melodrama that the applicant proposes to bring in and hence the application is with ulterior motive. The applicant is attempting to utilise the judicial forum to generate public sympathy and to open vista for unwanted attention to the issue. This Hon’ble court does not require larger outreach or any larger audience than what is already available to the proceedings that are undertaken on day to day basis,” the reply reads as quoted by Live Law.

As reported by Live Law, the reply also states, “The applicant is trying to turn away from the legal and constitutional infirmities of the writ petition and to attempt wrong interpretation to the concept of open justice propounded by the Hon’ble Supreme Court. The desire of the applicant is to attract global attention to certain cause he believes he has.”

Court’s Response

On May 17, 2021, the Delhi High Court’s Division Bench comprising Acting Chief Justice Vipin Sanghi and Justice Navin Chawla expressed their displeasure at the objectionable comments made by the Ministry of Law and Justice in their reply in affidavit, opposing the live streaming of the proceedings.

According to the Live Law report, Senior Advocate Neeraj Kishan Kaul for the petitioners expressed his anguish and submitted that the Centre may have its reservations to live-streaming. However, the language used in the affidavit is derogatory and demeans the rights of a particular segment of the society.

The Division Bench refused to accept the reply in affidavit on record and directed the Centre to file a better reply. LiveLaw reported that the Bench orally remarked, “If there is anything objectionable in the affidavit, you (counsel) don’t have to file it. Such affidavit cannot directly come from the Union Ministry. These things must be vetted. Don’t do a mindless exercise. This is not done.”

The Counsel representing the Centre assured the Court that they will come out with a better reply before the next date. The Bench then kept the next hearing of the matter on August 20, 2022.

About the Petition         

The Petition filed by Abhijit Iyer Mitra is for the recognition of marriages of LGBTQIA couples in Hindu Marriage Act. The Petition urged the recognition of the right of same-sex couples to get marry, as Section 5 of Hindu Marriage Act does not discriminate between homosexual and heterosexual couples.

Similar Petition about homosexual marriage was filed by Dr. Kavita Arora. The Petition claims about the fundamental rights to choose one’s own partner for marriage guaranteed under Article 21, also extends to same-sex couples as well. She had sought a direction from the High Court to the Marriage officer, South East Delhi, for solemnizing her marriage with her choice of partner under the Special Marriage Act.

Another similar Petition is filed by an Overseas Citizen of India (OCI), Joydeep Sengupta and his Partner Russell Blaine Stephens. The Petition, according to LiveLaw, pleads for a declaration from the Court that “a spouse of foreign origin of an Indian Citizen or OCI cardholder is entitled to apply for registration as an OCI under the Citizenship Act regardless of the gender, sex or sexual orientation of the applicant spouse.” This Petition in the support of his plea states that section 7A (1)(d) of the Citizenship Act, 1955 does not discriminate among heterosexual, same-sex or queer spouses, a person married to an Overseas Citizen of India, whose marriage is registered and subsisting for two years, should be declared eligible to apply as a spouse for an OCI card.

 
Related:

Same-sex marriage: Delhi HC asks Central Government to respond to the plea for live-streaming of proceedings

Landmark ruling: SC orders Sedition law to be kept in abeyance

Hindus as minority: Centre flip-flops on power to notify minority status

Bombay High Court quashes FIR against Solapur Journalist

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The Mumbai Sessions Court has confirmed anticipatory bail to Ameer Ali and Ambadi B, two former students of Tata Institute of Social Sciences (TISS) who were among the 51 students booked on charges of Sedition for shouting slogans in support of Jawaharlal Nehru University (JNU) student Sharjeel Imam at an LGBTQ rally at Azad Maidan on February 1, 2020.

On September 8, Additional Sessions Judge PP Rajvaidya said, “Anticipatory Bail Application No.276 of 2020 is allowed. Interim order dt.12.02.2020 is hereby made absolute with all the conditions directed therein.”

The order may be read here:

On February 12, 2020, the same Bench had granted interim relief to them from arrest. They were booked under FIR no. 28/2020 under sections 124A (sedition), 153B (imputations, assertions prejudicial to national integration), 505 (public mischief) of the Indian Penal Code registered at the Azad Maidan Police Station.

On February 6, police officials from the Azad Maidan police station visited the TISS campus and served Ameer and Ambadi a notice to report to the police station under section 160 of the Criminal Procedure Code for recording their statement. The section empowers the police officer to require the attendance of witnesses.

Their lawyer Vijay Hiremath had argued before the court that they did not participate in any sloganeering in support of Imam, and that they hail from Kerala and do not understand Hindi very well. He contended that they were part of a peaceful gathering of the queer community assembled at Azad Maidan on February 1, 2020 and only waived a blue colour flag which is a symbol of the Dalit community.

ASJ Rajvaidya accepted these arguments and granted anticipatory bail to Ameer and Ambadi on furnishing personal bond in the sum of Rs. 20,000 and were directed to attend the police station whenever summoned by the Police. They were also instructed to submit their mobile numbers, address proof and not leave the country without prior permission of the court.

The order may be read here: 

Another TISS student, Urvashi Chudawala (a transgender rights activist who prefers to go by the name Kris), who was booked under the same FIR had also moved the sessions court in February last year for anticipatory bail. However, on February 5, 2020, ASJ PP Rajvaidya had dismissed their plea by ruling that prima facie, a case of Sedition was made out against them. Kris was alleged to have raised a slogan, “Sharjeel tere sapno ko hum manzil tak pahauchange” (Sharjeel, we will make your dream come true), thereby allegedly instigating people to support secession of the state of Assam from India.

The court said, “Even though, this court is not dealing with the matter or the crime allegedly committed by said Sharjeel, ultimately the impact of the slogan uttered by the applicant in support of said Sharjeel, in my opinion, prima facie, attracts the ingredients of section 124A of the Indian Penal Code to the effect that the applicant has attempted to bring into hatred or disaffection towards the Government of India especially because, it does not appear that the applicant was not aware of the contents of the speeches by Sharjeel.”

The order may be read here: 

Eventually, the Bombay High Court’s Justice SK Shinde granted Kris anticipatory bail on February 11, 2020. Imam is currently lodged in Tihar Jail for his alleged role in the North East Delhi violence of 2020.

Related:

Sedition charges against 51 including transgender activist for chanting pro-Sharjeel slogans

JNU PhD scholar Sharjeel Imam arrested again, now for Delhi riots

Sharjeel Imam tried to create complete anarchy: Gov’t tells Delhi court

The post Booked for Sedition at LGBTQ rally, two former TISS students get protection from arrest appeared first on SabrangIndia.

The Allahabad High Court has quashed the petitioner’s cancellation order that appointed him as a Home Guard, passed by the District Commandant of Home Guards, Bulandshahar. Justice Sunita Agarwal observed that the order was “vindictive in nature” and directed the Commandant General of Home Guards to take the petitioner back in service “with immediate effect”.

The Single Bench observed that the cancellation of appointment order was passed in 2019, “on account of some video of the petitioner which was made viral by someone”. The court noted that in the counter affidavit filed by the Officer who issued the cancellation order, “sexual orientation of the petitioner has been stated to be indulgence in untoward activity”.

Referring to the Apex Court’s decision in Navtej Singh Johar v. Union of India (2018), Justice Agarwal said that the counter affidavit was in violation of the precedent since, “sexual orientation of the person is his individual choice and any act of treating it as an offence would be interference in the right of the privacy of the person concerned”.

She added, “It was held (in Navtej Singh Johar) that any display of affection amongst the members of the LGBT community towards their partners in the public, so long as it does not amount to indecency or has the potentiality to disturb public order cannot be bogged down by majority perception.”

Accordingly, the court allowed his writ petition and held that the petitioner shall be entitled to all admissible dues and the honorarium shall be paid regularly as and when the same falls due

The order may be read here:

Related:

Protect same sex couple facing resistance: Allahabad HC

Punjab and Haryana HC comes to the rescue of lesbian couple

The post Allahabad HC reinstates LGBTQIA member as Home Guard, deems cancellation order ‘vindictive’ appeared first on SabrangIndia.

The Allahabad High Court on Monday ordered protection to a homosexual couple from Uttar Pradesh who have been allegedly facing harassment and resistance from their respective family members and society. In Sultana Mirza and anr vs State of Uttar Pradesh and Ors (WP [Civ.] No. 17394 of 2020), Dhirendra Kumar Srivastava and Mohammad Naushad appeared for the petitioners and Chief Standing Counsel represented the respondent State.

The Bench of Justices Shashi Kant Gupta and Pankaj Bhatia said that, “”The petition highlights the stark reality of the society where the citizens are facing discrimination at the hands of the society only on account of their sexual orientation despite it being well settled that sexual orientation is innate to human being.”

Referring to the Supreme Court’s landmark judgment in Navtej Singh Johar & Ors. v. Union of India, (2018) 10 SCC 1, the Allahabad Bench reiterated some principles already laid down in the case:

• Sexual orientation is an intrinsic element of liberty, dignity, privacy, individual autonomy and equality

• Intimacy between consenting adults of the same-sex is beyond the legitimate interests of the state

• The right to love and to a partner, to find fulfilment in a same-sex relationship is essential to a society which believes in freedom under a constitutional order based on rights

• Sexual orientation implicates negative and positive obligations on the state. It not only requires the state not to discriminate, but also calls for the state to recognise rights which bring true fulfilment to same-sex relationships.

It emphasized that even the Supreme Court had observed that Constitutional morality requires that all the citizens need to have a closer look at, understand and imbibe the broad values of the Constitution, which are based on liberty, equality and fraternity. Hence, it noted “Constitutional morality is thus the guiding spirit to achieve the transformation which, above all, the Constitution seeks to achieve. This acknowledgement carries a necessary implication: the process through which a society matures and imbibes constitutional morality is gradual, perhaps interminably so. Hence, constitutional courts are entrusted with the duty to act as external facilitators and to be a vigilant safeguard against excesses of state power and democratic concentration of power.

“This Court being a constitutional Court is duty bound to monitor and observe the Constitutional morality as well as the rights of the citizens which are under threat only on account of the sexual orientation.”, the court added.

Background

The Division Bench was hearing a writ petition filed by a same sex couple who claimed that they have been in a live-in-relationship since a couple of years and are voluntarily living with each other on account of their sexual orientation. But they have faced resistance at the hands of family members as well as the immediate society, as a result of which the petitioners apprehend threat to their life and enjoyment of their relationship.

Considering the facts and circumstances of the case, on November 2 the Court directed the Superintendent of Police, Shamli to extend suitable protection to the Petitioners and ensure that no harassment is caused to them.

SabrangIndia had also reported on the protection offered to a lesbian couple by the Punjab High Court through Justice Monga in July this year who said that, “the petitioners are entitled to protection of their lives and liberty as envisaged under Article 21 of the Constitution of India, regardless of the nature of relationship between them. Assuming, they were living simply as friends together, even then they are constitutionally entitled to live in peace. Legitimacy of their relationship with each other, therefore, is of no consequence viz-a-viz their right to life and liberty.”

Contradictory Order by the Allahabad HC

In a case of similar facts but dissimilar results, the Bench of Justices Pankaj Mithal and Justice Ravindra Nath Kakkar had refused protection to a couple (a homosexual and transgender) in October 2018 who alleged harassment at the hands of their relatives. In Gulfam Malik and ors vs State of Uttar Pradesh and anr (WP [Civ.] No. 32683 of 2018), it was observed that, “The problem which has been raised in this petition is of a social nature between the individuals for which there is no cure in law. It is a in house problem which has to be resolved by the members of the family or its solution has to be found by the society. The Welfare State has to maintain law and order situation and has to provide security to the public at large in general but it does not mean that it is obliged to provide guards to each and every person individually. It is not even possible.”

The Delhi High Court is presently presented with a petition filed on behalf of activists and members of the LGBTQ community seeking legalisation of same sex marriage under the Hindu Marriage Act, 1955.

The Allahabad High Court order dated November 2, 2020 may be read here:

Related:

Punjab and Haryana HC comes to the rescue of lesbian couple

I never felt anything about my daughter was ‘different’: Chitra Palekar

India-Pak same-sex couple attend Durga Puja, pics go viral

The post Protect same sex couple facing resistance: Allahabad HC   appeared first on SabrangIndia.

There is no dearth of online YouTube videos and discussions where gay Muslims are counselled to control their urges and desires, as a test from Allah. Often the tone of the discussants is either scathing or softly paternal. They engage in rationalization by copy pasting from the Qur’an that Allah does not impose a burden on a people more than they can bear. Implicit is the assumption that gay Muslims are capable of handling this challenge meted out to them.

The problem with this narrative is that the same discussants go at length to showcase how Islam means peace, offered human rights centuries before the West, stands against oppression and calls out for social justice. Yet, when it comes to LGBTQ concerns, they downplay the concerns of gay Muslims and expect them to remain chaste for the rest of their lives. They can show pity but not respect the right for the basic human need for sexual expression and fulfilment.

They fail to recognize that in the narratives on tests, it is generally assumed that greater burdens are placed on Muslims with greater faith and lighter burdens on those with lighter faith. This leads to the question that when did gay Muslims, who are often scathingly reviled, become to be treated as those with superior faith?

Joy, in sunglasses, says LGBT Muslims face pressures of both homophobia and Islamophobia

And in all this, gay Muslims are being asked to bear an Asr (undue hardship) that was not even asked of the Prophets. If anything, the lives of the Prophets indicate how they had multiple avenues of sexual expression, with Solomon at 700 wives and 300 concubines. Indeed, to showcase the Prophet as the greatest of them all, Muslim polemicists sought to embellish the virility of the Prophet.

Based on the case they wanted to make, they exaggerated the age of Khadija to 40 (when she would have been in her late twenties) and minimized the age of Aisha to 9 (when she would have been in her late teens to early twenties).

The lives of the Companions and the following jurists were no different. Muslim scholar Kecia Ali quotes the 17th century Ḥanafī jurist Ḥaṣkafī, who opined that if a man, who had four wives and a thousand concubines, was reproached for taking another concubine, it was as if the critic had committed disbelief by reproaching a permissible conduct.

Then there is the Prophet David, who is accused of a grave sin in the Qur’anic passage 38:21-25. Khaleel Mohammed’s book “David in the Muslim Tradition – The Bathsheba Affair,” extensively documents how the Muslim position shifted from the Biblical account of David being accused of adultery to him being sinless, based on the later doctrine of inerrancy of Prophets.

Biblical tradition showcases how David was accused of placing Uriah the Hittite at the frontline of the battle that got him killed, which allowed David to make his advance towards his wife Bathsheba.

Generally, Muslims believe that the Bible has been corrupted. Yet, Abdullah Saeed showcases in his article “The Charge of Distortion of Jewish and Christian Scriptures” that many exegetes like Tabari, Razi, Qurtubi, amongst others believed that the distortion was not on the text but on the interpretations and that the scriptures today remain largely the same as those that existed at the time of the Prophet.

Keeping in mind that the doctrine of the inerrancy of Prophets was a later invention and that the corruption of the Jewish and Christian texts does not have the backing of the Qur’an or the major exegetes, allows us to radically question the ethical lessons Muslims derive from the story of the people of Lot.

Whereas Muslims and for that matter conservative Christians and orthodox Jews emphasize the sin of homosexual expression, the same story, when seen in its entirety including the Biblical passages, raises a lot more questions than it answers. This is especially so when the focus in the story is shifted from the people to the Prophet Lot himself.

The protagonist of the entire story is shown as having a rift with Abraham over land, yielding his daughters to a frenzied mob and having an incestuous affair with his daughters after the destruction of Sodom and Gomorrah.

Indeed, when one looks at the Biblical accounts of David and Lot, the multiples wives of Solomon and absence of any restrictions on the number of concubines taken up by the generation of Muslim elders deemed righteous, all of this necessitates the question on the undue hardship being imposed on gay Muslims through the cooked up narrative of a test.

The idea is not to resuscitate the debate on the inerrancy of Prophets but simply to showcase that any narrative on the basis of a story that raises far more questions than it answers should be created reasonably and responsibly, especially when it comes to inflicting harm on fellow human beings.

In a nutshell, we cannot expect gay Muslims to abide by an unreasonable standard, one that was not even imposed on Prophets to bear.

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Junaid Jahangir is an Assistant Professor of Economics at MacEwan University. He is the co-author of Islamic Law and Muslim Same-Sex Unions. With Dr. Hussein Abdullatif, a paediatric endocrinologist in Alabama, he has co-authored several academic papers on the issue of same-sex unions in Islam.
 

This article was first published on https://www.newageislam.com/

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A young lesbian couple was provided relief by the Punjab and Haryana High Court when the court directed the Senior Superintendent of Police (SSP) Mohali to assess the threat to the couple and provide security if required.

The girls had been living together for six months and were facing threats from their families. They had moved court seeking protection. While same sex relationships were decriminalised by a landmark Supreme Court judgment in 2018, same sex marriages are yet to be brought under the purview of the law. However, the court observed that the legitimacy of their relationship is of no consequence when it comes to their life and liberty and ordered the SSP Mohali to look into the threat to their lives.

The order by Justice Monga, as reported by the Indian Express said, “Social ethos, outlook and the philosophy appears to be evolving amongst gay couples so as to gather courage and openly come out of their closets, even though gay marriage is not yet legitimate as per the applicable marriage laws in the country, And, therefore, the live in relationships.”

The order went on to say, “Be that as it may, the petitioners are entitled to protection of their lives and liberty as envisaged under Article 21 of the Constitution of India, regardless of the nature of relationship between them. Assuming, they were living simply as friends together, even then they are constitutionally entitled to live in peace. Legitimacy of their relationship with each other, therefore, is of no consequence viz-a-viz their right to life and liberty.”

Related:

I never felt anything about my daughter was ‘different’: Chitra Palekar

Sweekar – Accepting LGBT children

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Just days after a group of activists raised slogans supporting Jawaharlal Nehru University (JNU) scholar Sharjeel Imam at the Mumbai LGBT Pride solidarity meet that was held at Azad Maidan on February 1, Mumbai Police have registered sedition charges against them.

The activists raised the slogan, “Sharjeel tere sapnon ko, hum manzil tak pahunchayenge,” (Sharjeel we will make your dream come true) at the Mumbai Pride which was turned into a solidarity meet instead of the annual Queer Azaadi March (QAM) or LGBT pride parade this year. Mumbai Police had earlier denied permission to conduct the parade on it usual route from August Kranti Maidan to Girgaum Chowpaty, after rumours were circulated via whatsapp that slogans could be raised against the Citizenship Amendment Act (CAA), the National Register of Citizens (NRC) and the government, at the parade. The QAM organisers then agreed to hold a solidarity meet at Azad Maidan on the condition that all slogans raised will be related to queer concerns.

However, a group of activists got together and started chanting the allegedly seditious slogans. Sharjeel Imam, a JNU students had in a viral video made allegedly seditious statements against the integrity of India. He remains in custody of the Delhi Police.

Meanwhile, Mumbai Police have now filed charges against the activists chanting or-Sharjeel slogans under sections 124(A) (sedition), 153 (B) (imputations, assertions prejudicial to national integration), 505 (statements conducing to public mischief) and 34 (common intention) of the Indian Penal Code. Transgender activist Urvashi Churawal has been named as a key accused in the case.

Police stepped up operations after both, former Chief Minister Devendra Fadnavis and BJP leader Kirit Somaiya applied pressure. Somaiya had threatened to hold a protest if an FIR was not filed in the case. The QAM organisers have however, distanced themselves from the slogans. In an official statement released online QAM said, “We, Queer Azadi Mumbai (QAM), the organizing body of the Mumbai Pride Solidarity Gathering 2020, dissociate ourselves from and strongly condemn the radical slogans in support of Sharjeel and/or any other slogans against the integrity of India at the gathering on Feb 2 2020 at Azaad Maidaan, Mumbai.” They added, “It was irresponsible and potentially detrimental and none of the individuals raising these slogans were part of the organizing process or permissions process with us. These slogans, performances and protests happened abruptly and precipitously without the consent of the organizers.”

QAM insists that the slogans were raised at a distance from the main stage and that the organisers could not hear them clearly. The statement says, “However, as soon as the organizers realized that some sloganeering was inaudible on the stage, the organizers proactively used their microphones to stop all activities and clearly advised all the attendees that any sort of speech/slogan/communication within the gathering must happen from the stage and with official consent of the organizing members.”

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Chitra Palekar is loved and admired unequivocally across India’s vibrant LGBTQIA+ community. The theatre veteran and author, was one of the first people to accept her lesbian daughter way back in 1993, inspiring many parents to do the same.

In a deeply gendered society, parents often get their first inkling of their child’s homosexuality when they notice decidedly campy behavioural traits. Therefore, most parents begin to suspect their son is gay if he displays feminine behaviour, or that their daughter is a lesbian if she like sporting short hair and masculine clothes. This is hugely problematic as it perpetuates unhealthy gender stereotypes. Luckily, Chitra was more intellectually evolved.

“I was also what some people would call ‘tomboyish’. I wore shorts, had short hair and played table tennis. So, when my daughter did the same, I had no reason to suspect she was a lesbian,” says Chitra. “She did not like toys, she picked up books, just like I used to. I did not ‘notice’ anything because there was nothing to ‘notice’ in my child’s behaviour,” she explains. “When my daughter came out to me, I accepted her instantly. What’s not to accept. I love my child,” she says.

Her daughter Shalmalee also helped Chitra gain greater understanding. “This was when there was no internet, so my daughter would give me books to read. I went a long way in helping me understand how natural it was for my daughter to feel the way she did,” she explains.

But Chitra’s real journey began after her daughter had moved abroad. “Back in the day, I had no real contact with any parents. I interacted with the kids at their meets and events where I gatecrashed,” she says. Chitra also interacted a lot with Vikram Doctor and Shobhana S. Kumar, who she credits with helping her chart and navigate her journey as a committed ally of the community.

“Vikram opened my eyes to so many things I could not see earlier. Shobhana hand held me through my journey, helping me understand correct terms, taking me to events, bringing me closer to members of the community,” says the septuagenarian who is still as enthusiastic as a seven-year-old. “I needed to learn the correct words so empathy does not disappear. I committed myself to empowering myself with all the correct information,” she says.

Gradually these interactions inspired Chitra to take the next step. “I was curious about the journey of other parents. Their experiences with their children coming out and how they dealt with family and social pressure afterwards. So, I got together with like minded people to chalk out a strategy to help them,” she says explaining the genesis of Sweekar: The Rainbow Parents.

Filmmaker Sridhar Rangayan and activist Harish Iyer were always keen on building a community of parents and creating a safe space for them to share their experiences and learn from each other. “I wanted this to actually mean something. One cannot have a superficial approach to something this serious, so discussions went on for months. There were psychologists, other experienced parents of queer children, such as Aruna Desai, Padma Vishwanath, Nilakshi Roy and many others committed to help scared, worried, anxious parents,” she says.

“We started by educating them about the correct terminology. So many people were confused about what is bisexual and what is intersex. We created a safe space and encouraged parents to ask questions without fear of judgment,” she says.

Chitra explains the objectives of Sweekar saying, “Sweekar is about support, acceptance and empowerment. We have made a conscious decision to never out a parent against their will. We maintain complete confidentiality,” she says.

On January 26, in the run up to the Queer Azaadi March, Sweekar held a parents’ meet where parents and their queer children narrated their stories. At this meet Chitra read out the Preamble, encouraging the audience to repeat the words after her. “I want to help the community integrate with society. So, it is important to make mainstream issues also relevant to the community. What better way to inculcate values of freedom, democracy and inclusion than to take the community through the vision of our founding fathers,” says Chitra.

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