This order was passed by a division bench of justices G R Swaminathan and V Lakshminarayanan on a habeas corpus petition (HCP) filed by the woman’s partner, hailing from Tirupattur district, praying for an order to liberate the woman from being illegally detained by her parents at Gudiyatham in Vellore district.

The bench also pulled up the police for failing to respond to the urgent messages sent by the petitioner and forcing the woman to go with her parents. Further, the bench slammed police attached to Gudiyatham in Vellore district, Reddiyarpalayam in Puducherry and Jeevan Beema Nagar in Karnataka for failing to respond to the SOS messages sent by the petitioner and forcing the woman to go with her parents. Going further and expressing disappointment that no action was taken by the Inspector of Police in Gudiyatham, the DSP and Vellore SP despite a complaint being lodged, the bench said only after the HCP was filed, the police woke up.

We hold that the government officials, in particular the jurisdictional police, have a duty to respond whenever complaints of this nature are received, the bench noted.

The Order also observed that the Supreme Court’s order in the Supriyo @ Supriya Chakraborty v/s Union of India case may not have legalised marriage between same sex couples but they can very well form a family.

Mother of lesbian detenue is no Leila Seth, says Madras HC

“We have come to the conclusion that the detenue is entitled to go with the petitioner (female partner) and that she cannot be detained against her will by her family members,” the bench said.

It restrained the woman’s natal family members from “interfering with her personal liberty”. It also issued a “writ of continuing mandamus” to the jurisdictional police to provide adequate protection to the woman and her partner as and when required.

“Marriage is not the sole mode to found a family. The concept of a ‘chosen family’ is now well-settled and acknowledged in LGBTQIA+ jurisprudence,” the bench stated. It explained, citing the NALSA and Navtej Johar cases, that the SC has declared that sexual orientation falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India.

Dealing with the statement of the lesbian woman’s mother that the petitioner had led her daughter “astray” and turned her into a “drug-addict,” the bench said it could see that the detenue is a perfectly normal-looking young woman.

The bench pointed out that the petitioner has not mentioned anywhere about the true nature of their relationship but called herself as a close friend. “We can understand the hesitation on her part. Our society is still conservative, notwithstanding (the judgment in) NALSA and Navtej Singh Johar,” it said,

The bench recalled the heart-rending letter written by Leila Seth when the Delhi HC decision to decriminalise the same-sex relationship in the Naz Foundation case was reversed by the Supreme Court. Unfortunately, she was not alive to see homosexuality be decriminalised via the historic judgment in Navtej Singh Johar Vs Union of India case, it said.

“The mother of the detenue is no Leila Seth. We could understand her feelings and temperament,” the bench said in the order. Stating that it had endeavoured in vain to impress upon her that her daughter is entitled to choose a life of her own since she is an adult, the bench noted that the law is clear and the precedents are clearer on the issue.

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The post Same sex marriage not legalised, but couples can form a family: Madras HC appeared first on SabrangIndia.

The Madras High Court bench of Justices SM Subramaniam and V Sivagnanam on August 9 came out strongly against the conduct of Chennai Police, where the latter had preventatively detained YouTuber Savukku Shankar under the stringent Tamil Nadu Goondas Act, 1982, accusing him of spreading false documents on social media against the government regarding the tender process for construction of new bus terminus at Kilambakkam.

The court observed that Shankar was arrested on May 10, 2024, while the video attached in detention order was broadcasted only on May 11, and the same order mentions that passengers protested against the non-availability of buses at New Bus Terminus in Kilambakkam on May 10. Therefore, if the controversial material was published a day after the protest took place, there is an apparent contradiction in the face of it, and the “element of breach of public order has not been established”, the bench noted. It further said that in the absence of any satisfactory ground to show that the act caused public disorder, mere publication of false information cannot constitute an offence under Section 3(1) of the Goondas Act, 1982.

The writ of Habeas Corpus was filed by the mother of the detenue, A.Kamala, wherein 4 respondents were named in the petition, namely, the State, the Commissioner of Police, Greater Chennai, the Inspector of Police, Chennai City CCD-I, and the Superintendent, Central Prison, Coimbatore.

Brief Background

Savukku Shankar, a YouTuber who runs Savukku Media channel, was first arrested on May 4, 2024 by the Coimbatore City Cyber Crime police in Crime No. 123 of 2024, wherein he was charged under Section 509 (outraging modesty of a woman) of Indian Penal Code (IPC), Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 1998, Section 67 (publishing obscene material) of the Information Technology Act, 2000. Since his arrest he was put in Central Prison at Coimbatore. Two more cases that were relied upon by the police to issue detention order were filed on May 7, with Crime Nos. 154 and 155. Notably, the FIR in Crime No. 154 was registered after a lapse of nearly 6 years since the date of original complaint which involved allegation against Shankar of making derogatory comments against a woman journalist. In the FIR in Crime No. 155, the complaint pertained to making derogatory comments against Women Police Officers in his YouTube video. Later, the Chennai Police filed another case on him on May 8, with an FIR Crime No. 158 of 2024 under Sections 465 (forgery), 466, 471, 474, 420 (cheating) of Indian Penal Code (IPC) based on the complaint received from Superintendent Engineer in Construction Wing, Chennai Metropolitan Development Authority (CMDA). Interestingly, the complaint followed 3 months after the passengers protested against the unavailability of public transport buses at New Bus Terminus in Kilambakkam, and it charged Shankar of stealing government data and spreading false information through his social media posts, which it said instigated the public.

The detention order was issued on May 12 by the Commissioner of the Police, Greater Chennai, and the State Government approved the order by publishing the same on May 22. The police had justified issuing the detention order based on Crime No. 158 and further relied on Crime Nos. 154 and 155 to argue that on previous occasions the accused had secured relief against his remand and therefore it took precautionary measure this time by issuing the detention order.

Judgement

The HC bench questioned the need to arrest Shankar under stringent Goondas Act by the authorities and held that his social media posts did not lead to public disorder and further explained that public disorder cannot include all law and order situations. The verdict notes that “The criticism made against the Government and its officials prompted them to invoke preventive detention to stop the detenu from publishing any such criticism, opinions about the Government or its officials.”  The court also did not take the public protests as a threat to public disorder and said that no untoward incident or element of breach of public order has been established in the detention order.

Importantly, the High Court was quick to note that the past two adverse cases registered against the accused vide Crime Nos. 154 and 155 does not form a sufficient ground to culminate into a case of Preventive detention under the Goondas Act, 1982. It held that “Offences disclosed in the adverse cases and the ground case do not disclose any serious threat to ‘Public Order’ and does not meet the threshold.” Furthermore, the judges took cognisance of the delay in filing couple of complaints, and remarked that “unexplained delay raises suspicion.” Moreover, the verdict reiterated the basic principle of criminal law and said that “in case of Preventive detention, if there is any doubt, whether rules have been strictly observed, that doubt must be resolved in favour of the detenu.”

The bench said that both cases (Crime Nos. 154 and 155) can be addressed through normal course of legal action under relevant provisions of laws without any need to invoke the Goondas Act, 1982. Additionally, the judges held that the accused was deprived effective representation in the case, as his representation was received on May 22, 2024, the same day on which the state government approved his detention order.

Emphasis on Freedom of Speech

The court relied on a plethora of judicial precedents concerning personal liberty and free speech jurisprudence, including Ram Manohar Lohia v. State of Bihar (1966 (1) SCR 709) , Anuradha Bhasin vs. Union of India and Others (AIR 2020 SC 1308), Pramod Singla vs. Union of India (2023 SCC Online 374), Ameena Begum vs. State of Telangana and Others [(2023) 9 SCC 587)], Rekha v. State of T.N [(2011) 5 SCC 244] and A.K. Roy v. Union of India (1982 SCC (Cri) 152).

Noting that selective detentions and false information both are equal threat to democracy, the bench said that “We cannot be a democracy, if we receive same plausible views from all the citizens. There is bound to be discontent, which might be acceptable and unacceptable, but the duty of the State is much larger than engaging in legal battles to prevent such unacceptable opinions.” It further remarked that people consuming information on social media are the best judges for themselves and constitutional institutions cannot indulge in a process to influence the views of the people, and added that “Actions of the Institution speaks for themselves and the views may come and go.”

On the rights of viewers, the bench observed that fellow citizens have right to know the opinions of a fellow citizen on the policies or actions of the government and censorship against such views is unhealthy for good governance. It also stated that “View and opinions are subjective and based on one’s own perception of information available at their disposal. No one can alter or change other’s views or opinions.”

The court also went into academic inquiry to understand what could be considered as influencing the opinion of fellow citizens. It provides the following illustration: “To illustrate further; ‘Y’ may post a content unfairly criticising a policy of the government which though a good policy and is in accordance with the laws in force. But ‘Y’ feels that it is a wrong policy and has to go. ‘A’, ‘B’ and ‘C’ are viewers watching the content. ‘A’ agrees with ‘Y’, ‘B’ agrees partially and ‘C’ does not agree with ‘Y’. ‘A’, ‘B’, ‘C’ is believed to have their own views about the said policy. Can it be said that ‘Y’ is influencing them against the government thereby causing public disorder with his opinions.”

The judgment notes that by taking a stricter construction of content online, the State is embarking on a never-ending unproductive journey which may eventually result in narrowing down the contours of Article 19(1)(a). It further said that “individual freedom cannot be clamped down at the whims and fancies of the State” and “Excessive usage of such laws to restrict the right to free speech will deter other citizens from enforcing their right to criticism or opinions against the State thereby fracturing the spine of democracy.”

The bench suggested that the State should instead use social media to understand the grievances of its people rather than trying to clamp them down. It observed that reasonable restrictions is a “narrow term” and it should be used in the most sparing way possible.

As the court quashed the detention order against Shankar as being noncompliant with the provisions of the Tamil Nadu Goondas Act, 1982, and set him free, it said that “in this month of 77th Independence Day celebrations can the voices of the citizens be stifled again? This Court cannot narrow the walls of Article 19(1)(a). The soul of a healthy democracy lies in free speech.”

Note: “The Goondas Act, 1982” has been used in this article to ensure easy readability, the formal name of the said legislation is “Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law offenders, Drug offenders, Forest-offenders, Goondas, Immoral Traffic Offenders, Sand offenders, Sexual-offenders, Slum-grabbers and Video Pirates Act, 1982.

The Madras HC judgement may be read here:

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“The messenger is being punished.” – Bolta Hindustan after YouTube channel ban | SabrangIndia

The post Quoting Tagore, the Madras High Court flags misuse of preventive detention laws to censor critical social media posts appeared first on SabrangIndia.

The petition submitted by the TNCC claims that despite the fact that the ECI received several complaints regarding hate speeches made by PM Modi, the Bharatiya Janata Party has only received one show-cause notice from the ECI. Even in the said notice, the ECI has refrained from taking direct aim at Narendra Modi. According to the appeal, Modi is the “individual culprit” behind the hate statements.

“Mr. Modi who is solely responsible for these inflammatory remarks, derogative and divisive speeches. This leniency of the ECI sends a wrong signal to the citizens and undermines the integrity of our nation’s whole electoral process,” the plea states, as a report in LiveLaw.

The aforementioned matter was mentioned before the vacation Bench of Justices AD Jagadish Chandira and R Kalaimathi today. The Bench, however, asked the petitioner to get the matter numbered by the Registry first.

Notably, the said petition comes after a number of contentious and divisive speeches have been given by PM Modi during election rallies across India. One such speech was delivered by PM Modi on April 21 in Banswara, Rajasthan. In the said speech, PM Modi had referred to the Muslim community as “infiltrators” and “those with more children.” The details on the same can be read here. 

Many complaints had been moved by opposition parties, civil society organisations and citizens to the ECI against the said speech. Four days pursuant to the said speech, the ECI had issued a notice to the Bharatiya Janata Party and sought a response from the party President JP Nadda. The details of the same can be read here. While the deadline for filing the reply was April 29, BJP has, till now, twice asked for more time. Meanwhile, PM Modi has continued giving partisan and misleading election speeches since then, against which more complaints had been sent to the ECI.

Details of the Petition:

The petition has been filed by the TNCC through its President, K Selvaperunthagai. The petitioner has claimed that the BJP is attempting to win the 2024 Lok Sabha elections by hook or by crook, and therefore, was indulging in a divisive campaign along communal lines.

As per the report of Bar&Bench, the petitioner pointedly stated that the Prime Minister himself had termed Muslims as “infiltrators” and those who “have more children.” Protest was also registered to Modi’s reported remark that the “opposition’s victory would mean Hindus’ wealth going into Muslim’s hands.” As per the report of Bar & Bench, the petitioners have also cited other recent speeches made by PM Modi in their plea says, highlighting that the said speeches had been replete with fabrications and abusive language with the aim of discrediting the Congress Party’s manifesto and its credibility without any iota of truth.

The main prayer of the is that the Court should demand the ECI seek an explanation from Modi for such inflammatory election speeches. As per the plea, such leniency shown by the ECI over such grim and divisive tactics send a wrong signal to the citizens and undermines the whole electoral process.

“Mr. Modi’s derogatory remarks about specific communities such as Muslims, including his recent comments regarding the mangal-sutra and birth rates among Muslims, are not only disrespectful but also shameful and treacherous as they fuel communal tensions and sow division among our people. These communal tensions are not exclusive to the States among which the Prime Minister, Mr. Modi has made these speeches, but rather, the blatant disrespect of Muslims were targeted to all the Muslims residing all over India. Mr. Modi is trying to create fear psychosis in the minds of the people and trying to whip up communal passions. He wants Indian citizen among themselves to fight and shed blood in the streets of India to force the majority people to vote for BJP,” the plea states.

In addition to this, the TNCC has also urged the Court to take actions to curb false, derogatory statements and to restrain PM Modi from making further misleading and derogatory statements against Congress Election Manifesto in order to ensure a level playing field for all the political parties to campaign in a free and fair manner.

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The post Tamil Nadu Congress Committee moves Madras HC, urges court to direct ECI to demand an explanation from PM Modi for his alleged hate filled election speech appeared first on SabrangIndia.

While refusing to quash a criminal proceeding initiated based on the above statements, Justice Anand Venkatesh observed that Annamalai had turned a petition filed in the interest of the environment into a vehicle to generate communal tension and the statements had a communal fervour to them.

“From the speech of the petitioner (Annamalai), it is unmistakable that he was attempting to portray a calculated attempt made by a Christian Missionary NGO, which is funded internationally, to destroy Hindu culture. It also whips up a communal fervour when he says “we are all running to the Supreme Court to counter this” The public was, therefore, led to believe that Christians are out to finish off Hindu’s and that “we” (in this context Hindus) were running to the Supreme Court to defend it. A petition filed in the interests of the environment was suddenly converted into a vehicle for communal tension,” the court observed.

The high court also added that the case was another reminder for those in positions of power and influence whose words have a wider reach and impact on the citizens of the country.

Background

After the video clippings of the interview were shared on social media, the respondent Piyush, who is an environmentalist gave a complaint to the DGP, Home Secretary, and the Commissioner of Police, Salem feeling that the post could spread hatred between the two communities. He was, however, informed that the interview did not attract any breach of public peace and no prima facie case was made out.

Thereafter, Piyush applied Section 156(3) and 200 of CrPC before the Salem Judicial Magistrate, who, finding that a prima facie case had been made out under Section 153A and Section 505(1)(b) of IPC, issued summons to Annamalai. This summons and the entire proceedings was challenged by Annamalai.

Annamalai, in his defence, claimed that the speeches could at best be taken as a cry in anguish. He submitted that the interview was given as early as in 2022, but the complaint was made after about 400 days and the issue itself and during this period no untoward incident had taken place based on the speech.

Piyush, on the other hand, argued that Annamalai’s speech was a dog whistle, sending a political message in a particular manner to be understood by a particular demographic. He added that necessary state sanction had been taken and a detailed order had been passed by the Magistrate while taking cognizance which showed the application of mind and did not require any interference.

The high court also observed that the psychological impact on a person or a group would also come within the definition of hate speech and thus the courts should not only focus on the prima facie physical harm while dealing with these types of cases. The court further observed that the posts made on Twitter were permanent data and acted like a ticking bomb waiting to have its desired effect at a point of time. The court stated also that Annamalai’s statements had a prima facie psychological impact on the targeted group.

“Hence, the psychological impact of a statement made by a popular leader must not be merely confined by testing it only to immediate physical harm and it is the duty of the Court to see if it has caused a silent harm in the psych of the targeted group, which, at a later point of time, will have their desired effect in terms of violence or even resulting in genocide,” the court said.

The court also upheld the order of the Magistrate, stating that it was well-considered order while issuing the summons. Appreciating the order, the court added that it was rare to see such a well-considered order taking cognisance, particularly at the Magistrate level. Thus, finding that the order was well reasoned, the court refused to exercise its powers under Section 482 CrPC to interfere with the prosecution.

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The post “Environmental Interest Converted Into Communal Tension”: Madras High Court Refuses To Quash Criminal Case Against BJP State Head Annamalai appeared first on SabrangIndia.

“The Division Bench of this court, under the order sought to be reviewed, has considered the locus of the applicant and also the fact of religious harmony in India. No new grounds are set up in review. The review cannot be entertained as an appeal in disguise,” the Bench led by the Chief Justice wrote, as provided by the report of the Hindu.

The bench also noted that the power of the High Court to review a judgment can only be exercised in cases where there is an apparent error in the record. The bench found that there was no said error in the judgment against which the review application was filed. “The jurisdiction of this court in review is in a narrow compass and can be exercised only upon an error apparent on the face of the record. There is no error apparent on the face of the record. In view of the above, the review application is dismissed.”

The current review plea had been filed against the order passed by a Division Bench of the High Court on April 17, 2023 wherein the court had taken exception to the petitioner, a resident of Tiruppur, objecting to the construction of a mosque in Chennai. In its order, the bench comprising the then Acting Chief Justice T. Raja and Justice Chakravarthy had observed that the petitioner had also not explained as to what harm would be caused by converting an Arabic college into a mosque.

“The petitioner has simply mentioned that there is a temple called Subbaiah Mutt Sivan temple nearby the place in question and if the Arabic college is converted into a mosque, there will be a public nuisance. In our considered opinion, the apprehension of the petitioner is unfounded,” the Bench led by the then ACJ had said, as per the report of the Hindu.

The bench led by the then ACJ had further emphasized upon religious harmony, an idea supported and encouraged by the Constitution of India.

The bench had stated: “The Constitution of India supports and encourages religious harmony. Probably, the petitioner is unaware of the fact that in Karaikal, inside the Arulmighu Angala Parameswari Temple, a Muslim Saint, by the name of Mutthalu Ravuthar, was buried and people belonging to both communities worship both the deity as well as the Dargah by lighting lamps or incense sticks, as the case may be. When there is such religious harmony in diversity in this land, we do not find any substance in the apprehension of the petitioner that riots may occur if the college is used as a mosque.”

Notably, while dismissing the writ petition, the Bench had also directed the petitioner to pay costs of ₹25,000 to the Madras High Court Advocate Clerks Welfare Association.

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The post Madras HC: Review plea against judgment hailing religious harmony dismissed appeared first on SabrangIndia.

The court, according to a report in LiveLaw, has held that raising a slogan of “fascist BJP, down” is not an offence and called it a trivial matter.

The accused was a research scholar Lois Sofia, who had raised the slogan at the Thoothukudi airport and in the flight which had Soundararajan, who is now governor of Telangana and Lieutenant Governor of Puducherry. Videos showed Tamilisai Soundararajan even shouting at Sofia when she raised the slogans at the airport. Sofia was arrested soon afterwards and was granted bail the next day.

The court, reported Deccan Herald, was hearing a petition filed by Sofia in 2019 through which he sought the quashing of the FIR filed against her by Thoothukudi police in 2018.

Lois Sofia was booked under sections 290 (punishment for public nuisance in cases not otherwise provided for) and 75 (1) (C) of the Madras City Police Act, DH reported. The latter pertains to the penalty for drunkenness or riotous or indecent behaviour in public places.

These sections are both non-cognisable offences. However, as the court pointed out on August 16, a Section 505(1)(b) of the IPC – which is a cognisable offence and can thus alter the case into a cognisable one – was later hand-written into the printed FIR even though there was no mention of non cognisable offences in the complaint.

During the hearings, present BJP Tamil Nadu and intervenor K. Annamalai questioned why the police had failed to register a case under the Suppression of Unlawful Acts against Safety of Civil Aviation Act 1982, the court said turned down the possibility citing the fact that mere uttering of a word is not likely to endanger the safety of an aircraft.

Significantly, Justice P Dhanabal of the Madurai bench further said that there was nothing in Sofia’s actions which can warrant the invocation of public nuisance under section 290 of the Indian Penal Code, which pertains to public nuisance.

“The First Information Report and the charge sheet discloses that the petitioner only raised slogan as ‘Fascist B.J.P’ and those words do not constitute any offence and it is trivial in nature  Therefore as discussed supra, the charge sheet in S.T.C.No. 324 of 2018 on the file of the learned Judicial Magistrate No.III, Thoothukudi is liable to be quashed,” the order says, according to LiveLaw.

The court also said that due procedure under Section 155 of the Criminal Procedure Code was not followed by police after the plea for her remand under Section 505 was rejected.

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FIR against student Lois Sophia who shouted anti-BJP slogan on flight quashed: Madras High Court

Student who shouted anti-BJP slogans at TN airport, granted bail

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The post The ‘Fascist BJP, Down’ slogan not an offence: Madras HC quashes FIR against academic appeared first on SabrangIndia.

While the Court’s detailed order has not been published yet, Sofia’s lawyer D Geetha told the media that the Court ruled that raising slogans did not amount to a cognisable offence. Sofia, a research scholar from Canada, was booked in September 2018 after she shouted “fascist BJP government down, down” on board a flight to Thoothukudi in the presence of former Tamil Nadu BJP president and current Governor of Telangana, Tamilisai Soundararajan.

Following the sloganeering, Soundararajan engaged in a verbal spat with Sofia at the airport and subsequently filed a complaint against her.

Sofia was charged under Sections 505 and 290 of IPC on charges of having made statements creating public mischief and for creating public nuisance. Subsequent to her arrest, Sofia had been granted bail by a Thoothukudi Court.

After the FIR against Sofia, her father also had filed a complaint before Pudukkottai police against Soundararajan and her followers alleging that they had abused, intimidated, and threatened his daughter at the airport. He had also approached the local judicial magistrate claiming the police were not registering an FIR. The magistrate had then directed the police to act upon the complaint.

The post FIR against student Lois Sophia who shouted anti-BJP slogan on flight quashed: Madras High Court appeared first on SabrangIndia.

For the past ten days, since Tuesday, April 18, arguments in the Constitution Bench of the Supreme Court in the Marriage Equality Case, Supriyo a.k.a Supriya Chakraborty & Abhay Dang v. Union of India thr. Its Secretary, Ministry of Law and Justice & other connected cases (2023) take on surreal dimensions with a constitutional functionary like the Solicitor General of India (SGI) likening same sex to sodomy and even incest, this refreshing view taken by a High Court four years back is worth a recall.

Justice G.R. Swaminathan, Madurai Bench of the Chennai High Court, in 2019, allowed the registration of a marriage between a man and a transgender woman in a truly a pioneering judgement.

Background

Petitioner 1, Arunkumar got married to Petitioner 2, Sreeja, a transwoman, at a temple in Tuticorin, as per rites and customs of Hinduism. When they applied for the registration of their marriage, the Joint Registrar, Tuticorin refused to register the same leading to the Petitioners challenging decision before the District Registrar of Tuticorin. The District Registrar confirmed the decision of the Joint Registrar. This decision was challenged before the Madras High Court.

Although the Madras HC judgement is silent on marriage between two people of the same sex, the fact that the court allowed for the registration of a marriage between a man and a transgender woman is truly a pioneering judgement which needs to be revisited.

While the petitioners argued on the basis of fundamental rights, the state-Respondents took the stance that the word ‘bride’ does not include transgender women.

What did the Court say?

The court while holding that transgender woman comes under the definition of the word ‘bride’, stated as follows:

“By holding so, this Court is not breaking any new ground. It is merely stating the obvious. Sometimes to see the obvious, one needs not only physical vision in the eye but also love in the heart.”

The court first recounted how the Supreme Court in the case of NALSA vs Union of India recounted the existence of transgenders in the Hindu epics such as Mahabharata. In NALSA vs Union of India, the Supreme Court stated that people have the right to identify their gender as male, female or transgender and discrimination based on gender is in violation of Article 15. This is a landmark decision because it is the first to legally recognise non-binary gender identities and uphold the fundamental rights of transgender persons in India. The judgement also directed Central and State governments to take proactive action in securing transgender persons’ rights.

While holding that the state cannot deny the identification a person has given to their gender, the Madras HC stated as follows:

“In the case on hand, the second petitioner herein has chosen to express her gender identity as that of a woman. As held by the Hon’ble Supreme Court this falls within the domain of her personal autonomy and involves her right to privacy and dignity. It is not for the State authorities to question this self determination of the second petitioner herein.”

An interesting feature of this judgement is that the court directly used the principle of interpretation that allows to read a word according to the situation and the times of the world. This is a progressive reading of the statute allowing for the law to evolve, according to the world. The court said:

“As noted in Justice G.P.Singh’s Principles of Statutory Interpretation, the court is free to apply the current meaning of a statute to present day conditions. A statute must be interpreted in the light of the legal system as it exists today.” 

The Court also noted that the Hindu Marriage Act is a personal law of the Hindus and, since the right of transgender persons to marry has been upheld by the Supreme Court, they cannot be excluded from the purview of the Act. The Court emphasized that both civil and sacramental marriages are valid under the Act. In this case, the petitioners’ marriage was solemnized in a temple, and the Court held that their fundamental right under Article 25 was violated due to the refusal to register their marriage.

The court state that action of the registration officials violated two rights apart from Article 25, one is the Article 19(1)(a) of the petitioner by stopping her from expressing her gender identity. Second is the violation of Article 21, by denying her gender identity- a violation her personal autonomy and dignity- both rights recognised by the Supreme Court in the landmark judgement of Navtej Singh Johar vs. Union of India.

The Madras High Court’s landmark judgment in Arun Kumar & Others v. Inspector General of Registration & Others is a significant step towards recognizing and upholding the rights of transgender persons in India. By recognizing their right to marry and practice their religion under Article 25 of the Constitution of India, the Court has paved the way for greater inclusivity and equality. The judgment serves as a reminder that personal laws must be interpreted and applied in a manner that ensures that the rights of all individuals, regardless of gender or sexuality, are protected.

Today, April 27 is the eighth day of arguments when arguments made by the union government assume a backward shift in marriage equality jurisprudence. Ironically, while the Supreme Court of India constituted a Constitution Bench (CB) to hear this matter that it was seized off only in November 2022, a host of other constitutional challenges lie pending before it awaiting adjudication.

• Ironically, while as many as nine petitions (details below) had already agitated the issue and obtained some reliefs in respective high courts, the SCI transferred all these admitted and pending cases to itself in the CB hearing! For example, a gay couple, Nikesh and Sonu, filed a petition seeking legal recognition of their marriage in the Kerala High Court on January 24,020. The Kerala High Court Justice Anu Sivaraman admitted the petition on January 27, 2020.^[27] Four queer people, Abhijit Iyer Mitra,  Gopi Shankar M, Giti Thadani and G. Oorvas, filed a petition seeking legal recognition of marriage in the Delhi High Court on September 8, 2020. A two-judge Bench of Delhi High Court, consisting of Chief Justice of Delhi High Court D.N. Patel and Justice Prateek Jalan, admitted the petition on 14 September 2020. All these legal challenges pre-date the current one initiated by a gay couple, Supriya Chakraborty and Abhay Dang, who filed a petition seeking legal recognition of their marriage in the Supreme Court of India on November 14, 2022. Thereafter, a two-judge Bench of the Supreme Court, consisting of Chief Justice of India D.Y. Chandrachud and Justice Hima Kohli, admitted the petition along with another gay couple, Parth Phiroze Mehrotra and Uday Raj Anand, on November 25, 2022. Thereafter nine petitions were transferred to itself, eight from the Delhi High Court and one from the Kerala High Court, in preparation for the CB hearing.

Thereafter, on March 15, 2022, the Supreme Court admitted 20 connected petitions filed by 52 queer people, including 17 queer couples. Ranged against these individuals is the powerful Indian state, its proxy organisations like the National Commission for Protection of Child Rights and organisations of religious denominations like the Jamiat-e-Ulema-Hind and the Telangana Markazi Shia Ulema Council.
The Delhi Commission for Protection of Child Rights, a statutory body of the Aam Aadmi Party-led Delhi Government, has intervened to support extending the right to marry and adopt for queer people on grounds that a) Multiple studies have shown that same-sex parents are not any different from opposite-sex parents; b) Discrimination against queer people would affect the psychological well-being of queer children. Additionally, the DCPCR recommended guidelines to ensure the well-being of children in same-sex adoptions. (Source legal interventions and Wikipedia)

(The author is a legal researcher with the organisation)

Related:

Right to Same Sex Marriages is not a right that can be claimed: Union to SC

Poor allocation, negligible disbursement: Whither schemes for transgender welfare?

9 years since the passing of the NALSA judgment, has the cycle of discrimination and ostracism finally been broken for the transgender community?

The post Transgender Woman is a “Bride” under Hindu Marriage Act: 2019 Judgement, Madras HC appeared first on SabrangIndia.

The Madras High Court recently observed with anger, that the ‘loathsome practice‘ of prohibiting the cremation or burial of persons belonging to marginalized castes in common burial grounds continues in several villages of the state. Tamil Nadu prides itself of being a Dravidian state, yet such exclusionary practices continue.

It was Justice N Anand Venkatesh who lamented that it is quite unfortunate that even at the time of death, the caste factor does not leave a person reported LiveLaw. (S Amirthavalli v. The District Collector, Coimbatore and ors)

“Persons belonging to this community are forced to cremate the dead bodies in some other place which has not been notified as a burial ground. Such a practice should be immediately stopped and everyone must be give an access to the burial ground irrespective of the caste or community to which they belong. Even at this length of time, the curse of the caste system is so prevalent particularly in villages and it piggyback even at the time of birth and does not even seem to leave even at the time of cremation. Alas we live in such sorry state of affairs,” the Court observed further.

The High Court further underscored that when it comes to cremation of dead bodies everyone must be allowed to cremate the dead bodies in the place which is notified as a burial ground irrespective of caste or community.

Advocating for stringent action to be taken against such perpetrators of crime to negate such a practice, the Court remarked,

“If the cremation is prevented by anyone on the ground that the person concerned belongs to a marginalized section, immediate action must be taken in accordance with law and such persons must be punished. Only if stringent actions are taken and the perpetrators of such crime are brought to book, such condemnable practices can be brought under control“

Justice Venkatesh proceeded to direct the the authorities in Tamil Nadu to take strict action if it is found that cremation of dead bodies is not being allowed based on caste.

It was also noted that the right to a decent burial is protected under Article 21 of the Constitution of India (right to life and personal liberty) and that such a fundamental right must enure to all irrespective of the caste or creed to which one belongs.

“This should be borne in mind by the authorities and a complete revamp on the attitude of the people must be brought forth by taking stringent action against persons who follow such inhuman practice“, the Court further highlighted.

Background

The Madras Court was adjudicating on a petition seeking directions to prevent the burial or cremation of dead bodies at certain government land in Pollachi. The petitioner contended that such a land was needed to access certain property that belonged to her husband.

During the hearing, the High Court was apprised that the concerned land was being used to cremate dead bodies of persons belonging to a lower caste, as members of this community were not being allowed access to the nearby burial ground.

Furthermore, the government informed the Court that the concerned Block Development Officer had been directed to ensure that persons belonging to all communities are permitted to use the common burial ground.

Pursuant to the perusal of the submissions, the Court directed the authorities to ensure that cremation takes place on the notified/common burial ground, irrespective of the community, caste or creed.

“The cremation or burial of the dead bodies should not be allowed in any other places than those places which are specifically notified as a burial and burning ground under the relevant Rules,” the Court further stated.

The Court further directed,

“A Copy of this order shall be marked to a)The Secretary to Government, Rural Development and Panchayat Raj Department and b)The Director General of Police to ensure stringent action as and when a situation arises”

Related:

K’taka: ‘cow urine’ used to purify tank as Dalit woman drank water from it

Special Report: Dalits killed for wanting to build temple in BJP-ruled Karnataka

Rajasthan: 46-yr-old Tribal man lynched for drawing water from tubewell

The post ‘Take stringent steps against persons who follow this inhuman practice’: Madras HC orders TN Govt to ensure access to common burial grounds by the marginalised appeared first on SabrangIndia.

Amidst heavy police deployment, the Rashtriya Swayamsevak Sangh (RSS) on November 6, carried out its rallies at three locations-Cuddalore, Kallakurichi and Perambalur districts of Tamil Nadu, reported ANI. Some pictures of these rallies in the ANI reports showed some members holding lathis and the rallies were carried out in the streets, both of which were restricted by the Madras High Court’s November 4 order.

Tamil Nadu | Rashtriya Swayamsevak Sangh (RSS) workers carry out their annual rallies in Cuddalore, Kallakurichi & Perambalur districts today. Heavy police force deployed.

(Visuals from Cuddalore) pic.twitter.com/ypHPrvQcRS

— ANI (@ANI) November 6, 2022

The right-wing outfit had sought permission to carry out rallies in 50 places, which was denied by the state police however, the Madras High Court had  allowed the same in 44 places. Yet, the RSS was irked by the High Court’s November 4 order for the limitations it placed on carrying out the rallies which led them to declare that they would cancel the rallies altogether. “Why would we organize marches across the state if we can’t hold it on the street and if we can’t carry lathis?” a senior RSS leader in Tamil Nadu had commented.

The High Court bench of Justice G K Ilanthiraiyan, while giving permission to hold the rallies in 44 places imposed the following restrictions:

i.                 The procession and public meetings should be conducted in a compounded premises such as Ground or Stadium. It is made clear that while proceeding to conduct procession and public meeting, the participants shall go by walk or by their respective vehicles without causing any hindrance to the general public and traffic.

ii.                During the program, nobody shall either sing songs or speak ill on any individuals, any caste, religion, etc.,

iii.               Those who participate in the program shall not for any reason talk or express anything in favour of organizations banned by Government of India. They should also not indulge in any act disturbing the sovereignty and integrity of our country.

iv.               The program should be conducted without causing any hindrance to public or traffic.

v.                The participants shall not bring any stick, lathi or weapon that may cause injury to any one…

              … ix.           In the procession, the processionists shall not by any manner                   offend the sentiments of any

 religious, linguistics, cultural and other groups.

The court’s order may be read here:

On November 6,  more than 2000 policemen and home guards including Kanchipuram Range DIG Satya Priya, Cuddalore, Chengalpattu, Tirupattur, District Superintendents of Police, and 3 Additional Superintendents of Police, 12 Deputy Superintendents of Police, over 100 Police Inspectors and Assistant Inspectors were deployed for security, reported ANI.

There has been a lot of back and forth that has led to these RSS marches since the state police was denying permission for the same across the state citing law and order issues due to the banning of Popular Front of India (PFI) to be a terrorist organization. When RSS went to court, it had initially planned to hold the rallies on October 2, however, the same had to be cancelled due to denial of permission, despite the Madras High Court allowing the same. RSS then filed a contempt of court petition and the November 4 order was a consequence of the same.

RSS training in public school?

In October, a video was circulating on social media of a group of men reportedly belonging to Rashtriya Swayamsevak Sangh (RSS) conducting training within the premises of a corporation (civic body) school at RS Puram near Coimbatore. The RSS claimed it did not conduct any training inside the school and the volunteers were involved only in cleaning activity.

Commissioner of the Coimbatore Corporation, M Prathap told the Indian Express that the civic body does not grant permission for any social, political or religious gathering in schools and also added that it is investigating the incident. He added that the school headmaster was sent a show cause notice in connection to the incident.

Related:

RSS training in corporation school, Coimbatore after push for multiple rallies across Tamil Nadu

Communalising Icons by the BJP takes on a new dimension in Karnataka

Madras HC directs TN Police to give permission to RSS march on Oct 2

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