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Changing Gender A Constitutional Right’: Allahabad HC Grants Relief To Lady Constable Seeking Nod For Sex Reassignment Surgery

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CASE TITLE: Neha Singh vs. State Of U.P. And 2 Others [WRIT – A No. – 7796 of 2023]

DECIDED ON: 18.08.2023

CORAM: Hon’ble Ajit Kumar,J.

INTRODUCTION

Emphasizing the “constitutionally acknowledged” entitlement for an individual to transition their gender using surgical procedures, the Allahabad High Court recently instructed the State DGP (Director General of Police) to address a request submitted by a female constable seeking approval for a Sex Reassignment Surgery (SRS).

Justice Ajit Kumar, presiding over the bench, also remarked that if contemporary society fails to recognize this inherent right of an individual to alter their identity, it would effectively promote the prevalence of “gender identity disorder syndrome”.

FACTS

These remarks were put forth by the bench during the consideration of a written plea submitted by an unmarried Woman Constable employed by the UP Police. The constable, asserting her experience of Gender Dysphoria, aimed to undergo a Sex Reassignment Surgery (SRS) in order to fully align her identity and appearance as a male, reflecting authentic male physical characteristics.

The petitioner’s legal representative conveyed that on March 11, 2023, the petitioner had formally sought authorization for the SRS from the Director General of Police in Lucknow, UP. However, as no decision had been reached in this matter, the present plea was presented to the court.

The petitioner’s counsel predominantly leaned on the Supreme Court case titled “National Legal Services Authority v. Union of India and Others,” (2014) 5 SCC 438. This case established that the respondents were unjustified in withholding the petitioner’s application. Worth noting is that within this same case, the Supreme Court had recognized transgender individuals as the ‘third gender,’ granting them the right to independently identify as male, female, or third gender.

The argument drew from the 2014 Supreme Court ruling, where gender identity was affirmed as an integral facet of an individual’s dignity. Thus, the respondent authorities were deemed duty-bound to render a decision on the petitioner’s matter.

The petitioner’s representative also referred to Section 15 of the Transgender Persons (Protection of Rights) Act, 2019, which pertains to healthcare provisions, including Sex Reassignment Surgery and hormonal therapy.

Lastly, the recent verdict of the Rajasthan High Court was cited. In this ruling, a Physical Training Instructor was permitted to modify their name and gender in their employment record after undergoing sex reassignment surgery.

Considering these submissions, the Court underscored that if an individual experiences gender dysphoria to the extent that, apart from physical attributes, they also possess the emotions and characteristics of the opposite gender, resulting in a significant misalignment between their personality and physical body, they indeed hold a “constitutionally acknowledged right to change their gender through surgical intervention.”

CASE ANALYSIS AND DECISION

Given the circumstances outlined above, and having identified no valid reasoning from the Director General of Police for retaining the petitioner’s application, the Court instructed the DGP to promptly address the pending application submitted by the petitioner, strictly adhering to the judgments cited in the order.

Additionally, the Court requested the state government to submit a suitable affidavit detailing whether they have enacted any legislation in alignment with the directives issued by the Supreme Court in the NALSA case. If such legislation has been enacted, it should be included in the record.

The Court further emphasized that if the state government has not yet established such legislation or regulations, they should ensure the creation of such legislation that mirrors the Central legislation. A comprehensive affidavit should also be submitted by the state government, outlining the progress made in this matter by the upcoming scheduled date.

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Allahabad HC Seeks Action Against Police Personnel Who Allegedly Subjected Man To Custodial Violence For ‘Obstructing’ Traffic

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CASE TITLE: Rajat Bajpai vs. State Of U.P. Thru. Prin Secy. Home Lko. And 4 Others [CRIMINAL MISC. WRIT PETITION No. – 5811 of 2023]

DECIDED ON: 17.08.2023

CORAM: Hon’ble Mrs. Sangeeta Chandra,J. Hon’ble Narendra Kumar Johari,J.

INTRODUCTION

The Allahabad High Court has requested appropriate measures to be taken against police officers accused of subjecting a young boy to abusive treatment while in custody over a minor incident involving parking on the roadside. The panel consisting of Justice Sangeeta Chandra and Justice Narendra Kumar Johari also expressed worry about the malfunctioning of surveillance cameras in State’s capital city police stations. They instructed the police department to address and rectify this issue.

FACTS

The court issued this directive during the handling of a writ petition filed by the victim’s father, who alleged that his son had been subjected to severe physical abuse by the police officers. This abuse allegedly occurred after it was discovered that the victim had parked his two-wheeler on the road, causing a traffic obstruction. The plea sought consequences for the police personnel involved.

During the previous hearing, the court, after observing the victim’s injuries, ordered a medical examination of the victim.

Subsequently, on August 17, the court received the medical report, which indicated that the injuries were a result of physical assault.

In the court’s presence, the Additional Commissioner of Police expressed the view that an altercation had taken place between the victim (Rajat Bajpai) and the police personnel regarding the motorcycle parking. This purportedly led the police officers to forcibly take Rajat Bajpai to the relevant police station in their vehicle.

The viewpoint put forth was that due to Rajat Bajpai staging a sit-in protest on the road and being forcibly taken into the police vehicle, his legs were injured due to friction or a scuffle.

However, the court was unconvinced by the Additional Commissioner of Police’s explanation, citing medical reports that clearly indicated the injuries were caused by a solid and blunt object, indicative of physical assault.

The court explicitly disagreed with the notion that the petitioner’s injuries were the result of friction during the police officers’ attempt to lift him and place him in the police vehicle.

“The injuries reported by the two Medical Officers cannot be caused by friction,” the court emphasized.

Furthermore, the court observed that two constables named Vishal Singh and Rahul were unable to provide a satisfactory explanation for taking the petitioner away from the holding area for five minutes.

“The Additional Commissioner of Police has not offered any opinion on the possibility of these two Constables assaulting the petitioner. He has only stated that taking the petitioner out was inappropriate,” the court commented.

CASE ANALYSIS AND DECISION

Regarding the CCTV footage from the involved Police Station, the Court acknowledged that the Investigating Officer had determined that the bullet cameras at the Police Station were not operational.

Expressing worry over the malfunctioning CCTV cameras in police stations, the panel of judges remarked as follows:

“We’ve been informed that the Director General of Police has issued directives for all Police Stations to have CCTV coverage. However, this is the second instance in the state’s capital city, Uttar Pradesh, where the Police have informed this Court that the CCTV cameras were not functional at the relevant time and have been inoperative for a considerable period. This is a serious concern, and such a report from the Police is unacceptable.”

Furthermore, recognizing that the Constables involved have not been individually named as respondents in this petition, the Court ordered their inclusion and scheduled the matter for September 20. During this hearing, a comprehensive counter affidavit is expected from the State respondents regarding actions taken against the police personnel and the operational status of CCTV cameras in police stations.

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Section 5 Of Limitation Act Applicable To Proceedings Under Railway Claim Tribunal Act, 1987: Allahabad High Court

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CASE TITLE: M/S Krishak Bharti Co-Operative Ltd.Kribhco Surat Gujarat v. Union Of India Thru G.M. Northern Eastern Railway Gorakhpur [FAFO No. – 236 of 2002]

DECIDED ON: 16.08.2023

CORAM: Hon’ble Ajay Bhanot,J

INTRODUCTION

The application of Section 5 of the Limitation Act, 1963 has been affirmed by the Allahabad High Court in relation to proceedings governed by the Railway Claim Tribunal Act, 1987 and the Railway Claim Tribunal (Procedure) Rules, 1989.

Justice Ajay Bhanot, presiding over the bench, was overseeing an appeal stemming from a claim application submitted before the Railway Claim Tribunal. The application was dismissed due to non-prosecution. Following this, the claimant submitted a request for the restoration of the claim application. However, this request was rejected due to being beyond the permissible time limit.

FACTS

The appellant submitted a compensation claim to the Railway Claims Tribunal’s Lucknow Bench (“Railway Tribunal”) following the demise of his son. However, due to a lack of prosecution, the claim was dismissed on 09.02.2000. Subsequently, eight months later, on 04.10.2000, the appellant lodged an application for restoration. Rule 18 of the Railway Claims Tribunal (Procedure) Rules, 1989 specifies a 30-day timeframe for submitting an application to reverse a default dismissal order. The Railway Tribunal declined the restoration application due to it being beyond the allowable time limit.

In response to the decisions made by the Railway Tribunal, the appellant initiated an appeal in the High Court.

CASE ANALYSIS AND DECISION

The court drew upon precedents from the Gujarat High Court, specifically the cases of Shyam Santaram Sali (Marathi) v. Union of India and Dharmesh Madhubhai Parmar v. Union of India. In these cases, it was established that Section 5 of the Limitation Act is applicable to proceedings governed by the Railway Claim Tribunal Act, 1987, in conjunction with the Railway Claim Tribunal (Procedure) Rules, 1989.

The court acknowledged that the case had been transferred from Gorakhpur to Lucknow, and due to an administrative oversight, this transfer was not communicated to the appellant. Consequently, his absence on the day of the case’s dismissal was beyond his control.

The court noted that the application for condonation of delay demonstrated a valid and sincere reason for the delay, with no intention to cause it. The court further recognized the appellant’s consistent diligence in pursuing his claim. The court emphasized that when substantive rights are at stake, the primary focus should be on ensuring justice rather than barring claimants on technical grounds.

The court held that given the presence of a valid reason for the delay, the Railway Tribunal should have granted condonation for the delay.

As a result, the court nullified the decision to reject the application for delay condonation and reinstated the case for a comprehensive review on its merits.

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E-Way Bill Expired Due To Vehicle Break Down: Allahabad High Court Quashes Seizure Memo

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CASE TITLE: M/S Rateria Laminators Pvt. Ltd. vs. Additional Commissioner Grade 2 And Another [WRIT TAX No. – 599 of 2023]

DECIDED ON: 16.08.2023

CORAM: Hon’ble Piyush Agrawal,J

INTRODUCTION
The decision by the Allahabad High Court involved overturning a ruling based on Section 129(3) of the UPGST Act 2017. This ruling had imposed a penalty based solely on the absence of evidence regarding the driver’s illness and the vehicle breakdown.

The petitioner regularly received goods from GAIL in Auraiya, Uttar Pradesh. Specifically, two invoices dated 6.3.2023 were issued for these inward supplies. E-way bills were generated, valid until 12.3.2023, and a Goods Receipt (GR) was also created on the same day. The GR explicitly referenced the invoice numbers and E-way bill details.

FACTS

While en route, the vehicle operator fell ill and could not complete the delivery within the timeframe specified in the E-way Bill. Consequently, on 13.3.2023, the vehicle was intercepted, and Form GST MOV04 was generated on 14.3.2023. Following this, Form GST MOV01 was produced on 23.3.2023, leading to an immediate decision that the transported goods were lacking proper documentation due to the expiration of the E-way bills.

A notification via Form GST MOV 07, pursuant to section 129(3) of the UPGST Act, was served, suggesting the imposition of penalties under sections 129(1)(a) and 129(1)(b) of the Act. Subsequently, an order was enacted under section 129(3) of the Act, requiring the petitioner to submit a specified amount to facilitate the release of the goods. Despite the petitioner’s appeal against this, it was dismissed.

The petitioner argued that there were no discrepancies between the physical inspection of the goods and the accompanying documentation. They contended that the driver’s unfamiliarity with GST laws prevented them from seeking an extension of the E-way Bill. The petitioner maintained that the situation was beyond their control.

Furthermore, the petitioner asserted that in their response, they explicitly stated that the goods could not be delivered on time due to the unforeseen illness of the driver. However, the Authority swiftly dismissed this explanation.

Drawing from the precedent set by the Allahabad High Court in Bharti Airtel Ltd. vs. State of U.P., the petitioner contended that after refusing to remit taxes under Section 129(3), the Authority should have initiated proceedings under Sections 73, 74, and 75, in conjunction with Section 122 of the Act.

The Department’s representative alleged that the petitioner’s failure to renew the E-way bill indicated a breach of legal provisions. They also claimed that the expired E-way bill suggested the petitioner’s intent to evade tax obligations. Additionally, no medical records substantiating the driver’s illness were provided as evidence.

CASE ANALYSIS AND DECISION

The court observed that there were no inconsistencies concerning the quality and quantity of goods during their transportation. The decision was made based solely on the expiration of the E-way Bill. Furthermore, the court explicitly highlighted that there were no allegations of tax evasion in any of the orders issued against the petitioner.

The court distinguished the judgment made by the Supreme Court in the case of Assistant Commissioner (ST) v. Satyam Shivam Papers Pvt. Ltd. This distinction was drawn on the grounds that the aforementioned case involved a roadblock due to anti-CAA protests, whereas in the current scenario, the delay was attributed to the driver’s illness and vehicle breakdown. However, no substantiating evidence regarding these factors causing the delay had been presented on record.

While acknowledging that the petitioner had not provided any evidence to support the driver’s illness, the court noted that the Authority’s order had not provided any rationale for discrediting this claim.

Consequently, the writ petition was granted, leading to the matter being referred back to the Authority for a fresh assessment.

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Direct Tax Vivad Se Vishwas Act| Delay Can Be Condoned In Unforeseen Circumstances: Allahabad High Court

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CASE TITLE: Digvendra Pratap Singh vs. Union Of India And 2 Others [Writ Tax No. – 1510 of 2022]

DECIDED ON: 11.08.2023

CORAM: Hon’ble Siddhartha Varma,J. Hon’ble Arun Kumar Singh Deshwal,J.

INTRODUCTION

Last Friday, the Allahabad High Court granted permission to the petitioner to avail benefits under the Direct Tax Vivad Se Vishwas Act, 2020, even though their application under the Act was submitted three days after the stipulated period. The Court clarified that granting a condonation of delay in exceptional situations does not automatically extend the scope of the scheme.

The Parliament introduced the Direct Tax Vivad Se Vishwas Act, 2020 (referred to as the 2020 Act) with the aim of resolving disputes related to taxes, providing taxpayers relief from interest and penalties on outstanding taxes. As per the provisions of the 2020 Act, individuals wishing to settle contested tax amounts are required to submit a declaration under section 4 of the Act to the designated authority. Upon receipt of this declaration, the Authority is responsible for issuing a certificate to the declarant containing details of the tax arrears and the payable amount. Subsequently, the payment must be made by the deadline determined by the Ministry of Finance.

FACTS

For the Assessment Year 2010-11, the petitioner fulfilled the requirement by submitting their declaration on 5.6.2020 as mandated under Section 4 of the 2020 Act. The declaration certificate issued by the designated authority in Form-III, as outlined in Section 5 of the Act, was also uploaded on the portal by 9.11.2020. The petitioner was obligated to make a payment of Rs. 18,67,137/- on or before 31.12.2020.

The Ministry of Finance extended the deadline for payment under the scheme through various notifications. On the final deadline, which coincided with a Sunday, the petitioner delivered a check. However, due to the day being a Sunday, the payment receipt was issued on 3.11.2021. Subsequently, the petitioner was disqualified from availing benefits under the 2020 Act due to the three-day delay.

The Chairman of the Central Board of Direct Taxes declined the petitioner’s request for condonation of the delay, citing the notification that established the last deposit date as 31.10.2021, with no room for further extension.

The petitioner’s representative argued that unforeseen and external circumstances, along with legal hindrances, should be considered when granting an extension for depositing the remaining amounts. Reference was made to the case of Shekhar Resorts Ltd. vs. Union of India and others, where the Supreme Court held that condoning a delay in the presence of a legal obstacle does not constitute an extension of the scheme but rather a remedial measure.

The respondent’s counsel, however, relied on the case of M/s Ken Computek Pvt. Ltd. vs. Designated Committee (SVLDRS) and others, wherein the Supreme Court observed that the prescribed deadline for depositing the balance of tax under the 2020 Act scheme cannot be prolonged.Top of Form

 

CASE ANALYSIS AND DECISION

The bench, consisting of Justices Siddhartha Verma and Arun Kumar Singh Deshwal, noted that in a similar factual scenario, the Supreme Court in the case of Shekhar Resorts Ltd. vs. Union of India and others, as well as the Delhi High Court in I.A. Housing Solution Pvt. Ltd. vs. Principal Commissioner of Income Tax-4, had granted the petitioner the benefit of the scheme. Consequently, the petitioner was entitled to the benefit, as they had demonstrated good faith by submitting the check on the final day. The incident that caused the delay was an unforeseen event beyond the petitioner’s control.

In regard to the decision referenced by the Respondent, the Court held:

“While in the judgment of M/s Ken Computek Pvt. Ltd. vs. Designated Committee (SVLDRS) and others, delivered in SLP (C) No. 2116 of 2023, the Supreme Court did not address the issue of condoning delay in exceptional circumstances, it only observed that the benefits of the scheme cannot be extended beyond the timeline prescribed by the scheme.”

In line with this, the writ petition was granted and accepted.

approving bail, leading to the dismissal of the defendant’s bail plea.

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