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Supreme Court Overturns Delhi HC Order on Caste Slur Case, Upholds Magistrate’s Order

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CASE TITLE – Priti Agarwalla & Ors. v. The State of GNCT of Delhi & Ors.

CASE NUMBER – Criminal Appeal No(s). 348 of 2021 & 349 of 2021

DATED ON – 17.05.2024

QUORUM – Justice S.V.N Bhatti & Justice M.M. Sundresh

 

FACTS OF THE CASE

The Olympic Riding and Equestrian Academy, Eastern Jaunapur, New Delhi (for short, “OREA”), is a training facility for enthusiastic equestrian athletes. Mr. Kapil Nath Modi administers and runs the said training facility. Appellant Nos. 2, 3, 6 and Respondent No. 2 were the trainee athletes in OREA. Appellant No. 1 is the mother of Appellant No. 2. Appellant Nos. 4 and 5 are the parents of Appellant No. 6. The equestrian sport dates back to the ancient Greek era and has been an Olympic sport from 1900 onwards. The dressage sport is popularly known as horse ballet. The riders and their horses are judged based on their movement, calmness, suppleness and flexibility. The controversy considered in the present appeal reflects whether the athletes under training at OREA, who wanted to control the mind and body of a horse, have lost the calmness, suppleness and flexibility while being trained at OREA. On 03.04.2018, Appellant No. 4 filed a complaint before SHO, P.S. Fatehpur Beri, against the administrator of OREA. The said complaint is not made under any specific section of the Indian Penal Code, 1860. The administrator, however, considering the nature of the allegations in the FIR lodged against him before SHO, P.S. Fatehpur Beri, on 06.04.2018, moved an application for anticipatory bail before the Saket District Court, Delhi. On 11.04.2018, the anticipatory bail application of the administrator stood dismissed. On 12.04.2018, Appellant No. 1 and her husband filed yet another complaint against the administrator of OREA, on the alleged illtreatment meted out to their son/Appellant No. 2 by the administrator. Daksh Mittal wrote a letter dated 21.04.2018 to the administrator, informing the conspiracy being hatched by the members of the “Alliance” WhatsApp group to kill the administrator and attack Respondent No. 2 by pouring acid on Respondent No. 2. The administrator, on 22.04.2018, by referring to the letter dated 21.04.2018, filed a complaint before SHO P.S. Fatehpur Beri for protection and also to prevent any plan being executed either on the administrator or Respondent No. 2 by a few members of the WhatsApp group, “Alliance”. The Criminal Appeal concerns the complaint filed by Respondent No. 2 on 29.04.2018 before SHO P.S. Fatehpur Beri, South Delhi under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short, “the Act of 1989”) against the Appellants herein

 

ISSUE

  1. Whether the order dated 09.07.2018 of the Metropolitan Magistrate conforms to the material on record and satisfies the mandate of section 156(3) of the CrPC?
  2. Whether the complaint(s) dated 29.04.2018/09.05.2018 make out a prima facie case of an offence under section 3(1)(r) and 3(1)(s) of the Act 1989?

 

CONTENTIONS BY THE APPELLANTS

The Learned Counsel representing the Appellants argued that the order under appeal had not appreciated the full conspectus of the controversy preceding the filing of the complaint dated 29.04.2018. He stated that the administrator of OREA had encouraged Respondent No. 2 to file a complaint alleging the commission of offences under the Act of 1989, though none existed over the years. The administrator, having been unsuccessful in getting anticipatory bail, etc., in the FIRs filed by the Appellants, had pursued or pressurized Respondent No. 2 to initiate prosecution by filing a complaint dated 29.04.2018 and the application dated 09.05.2018 under the Act of 1989 against the appellants. It was argued that these complaints are false and motivated. He argued that the complaint dated 29.04.2018 and the application dated 09.05.2018 do not disclose that an act or omission made punishable by any law for the time being in force had been made out. The offence alleged against Appellants as stated under section 3(1)(r) and 3(1)(s) of the Act of 1989, and to constitute an offence under section 3(1)(r) of the Act of 1989, the complaint must aver that the commission or omission has been made in public view, and stated that the allegations in the complaints are vague and indefinite and do not constitute an offence arising under the Act of 1989, independent of examination of any other material.

 

CONTENTIONS BY THE RESPONDENTS

The Learned Counsel representing the Respondents argued that the word “Faggot” used in the WhatsApp group “Alliance”, is a casteist remark, and should be punishable under the Indian Penal Code, 1860, and stated the Parliament, realizing the need to protect the marginalized sections of the Indian society from caste slurs or abetment of offences against people and property, enacted the Act of 1989, and that the grievances of Respondent No. 2 made through Complaint dated 29.04.2018 fell on deaf ears of the police. He argued that Respondent No. 2, considering his background, suffered in silence the slurs alleged at him for months and years, and filed the complaint and application on 29.04.2018 and 09.05.2018, respectively, so the delay, would not lead to any adverse inference on the alleged commission of an offence under section 3(1)(r) of the Act of 1989, and the argument on “public view” as sine qua non for attracting section 3(1)(r) is untenable in the circumstances of the case. He further stated that although OREA is a private training institute, the utterances satisfy as having been made within the academy. Therefore, these utterances once are made in OREA satisfy as having been made in public view, and the absence of names of witnesses or the public who witnessed this slur is not fatal.

 

COURT ANALYSIS AND JUDGEMENT

The Hon’ble Supreme Court after going through the facts of the case, summed it up and understood it as the accusation of intentionally abusing and humiliating Respondent No. 2 which spans over a period of two years between 2016 and 2018, and that the allegation prima facie appears to be an omnibus and ambiguous allegation, but however, does not refer to the place nor the public view before whom it was made. They stated that the accusations in the complaints do not satisfy as having been made in any place within public view. Thereby, directing registration of FIR and further steps as unsustainable. And also disagreed with the observations of the High Court of Delhi directing the registration of an FIR, for the reasons they had recorded stated is untenable and warrants interference in the appeal. The Hon’ble Supreme Court then held that the criminal appeal is allowed, and the order of the Metropolitan Magistrate dated 09.07.2018 should be upheld, which was against the directions of the High Court.

 

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Delhi High Court Acknowledges Petitioner’s Compliance Efforts, Mandates Reassessment for CAPF Role Eligibility

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Case Name: Akshay Choudhary v. Union of India, Ministry of Home Affairs & Ors 

Case No.: W.P.(C) 5602/2024 

Dated: May 20, 2024 

Quorum:  Justice V Kameshwar Rao and Justice Ravinder Dudeja 

 

FACTS OF THE CASE: 

The facts of the case revolve around one Akshay Choudhary, the petitioner, has filed a writ petition contesting the findings of the Review Medical Examination Report, which deemed him ineligible because of a tattoo. After passing the written exam to become an Assistant Commandant in the CAPF, Choudhary had tattoo removal procedures performed, but his unhealed scar kept him from being considered fit. 

The petitioner, Akshay Choudhary, has filed a writ appeal to overturn the conclusions of the Review Medical Examination Report, which determined that his tattoo disqualifies him from the case. Even though Choudhary underwent tattoo removal surgery after clearing the written exam to become an Assistant Commandant in the CAPF, his unhealed scar prevented him from being deemed fit. 

Even though Choudhary underwent tattoo removal surgery after clearing the written exam to become an Assistant Commandant in the CAPF, his unhealed scar prevented him from being deemed fit. In an attempt to reverse the findings of the Review Medical Examination Report—which concluded that the petitioner, Akshay Choudhary, is ineligible for the case because of his tattoo—he has filed a writ appeal.  

CONTENTIONS OF THE PETITIONERS:  

The learned counsel for the petitioner argued that the Central Armed Police Forces (‘CAPF’) had published an advertisement and examination notice on April 26, 2023, regarding the appointment to the position of Assistant Commandant (Group A). That the petitioner had surgery on December 8, 2023, to remove a tattoo that was etched on his right forearm.  

After passing the written exam, the petitioner was called by respondent No. 3/ ITBP on December 19, 2023, for the Physical Standard Test (PST), Physical Efficiency Test (PET), and Medical Standard Test (MST) as well as the Review Medical Examination (RME) at 39 Battalion, ITBP, NOIDA. There, he was found unfit due to a tattoo mark of “OM” that was engraved in Hindi on the inner anterior part of his right forearm.  

The learned counsel also contended that The petitioner applied for the Review Medical Examination (abbreviated “RME”) with diligence. Once more, the petitioner had a tattoo removal procedure on December 27, 2023.  

CONTENTIONS OF THE RESPONDENTS: 

The learned counsel of the respondents argued that the submissions made by Mr. Mehta, stating that the examination notice and advertisement issued by the respondents clearly stipulate that each candidate must meet all eligibility requirements in order to be accepted into the respondents’ Force. The advertisement further specifies that tattoos on conventional body sites, such as the inner aspect of the forearm, are only permitted on the left forearm—sooner than on the saluting limb or the dorsum of the hands.  

In his opinion, the petitioner’s case does not meet the eligibility requirements mentioned in the relevant advertisement because the tattoo is located on the front side of the right forearm. Apart from that, the medical situation must be seen on the day of the medical examination or RME, not four months later as requested by the petitioner in this instance.  

For this reason, the current petition must be denied. After hearing from the parties’ knowledgeable solicitors, the brief matter that needs to be addressed is whether the petitioner’s case was properly denied by the Medical Board or Review Medical Board.  

 COURT’S ANALYSIS AND JUDGMENT: 

The court determined that there was no tattoo following the procedure to remove it, and that the Tattoo Clause does not, on its face, require that a candidate’s scar from a tattoo removal be unhealthy or unhealed in order for the candidate to be disqualified. However, we believe that the Medical Board and Review Medical Board had a legitimate reason to review the scar from the procedure in order to make sure that the portion of the hand that is visible when saluting is clear in every way. In that sense, the Review Medical Board’s judgement might be supported.  

The judge decided that, but the reality still holds that the Review Medical Board ought not to have looked at the petitioner right away following a few days of surgery and ought to have provided enough time for the petitioner to guarantee that the scar heals, and then determine the petitioner’s suitability or unfitness based on the picture of the right forearm of the petitioner at ANNEXURE P-6, in addition to the the petitioner requested an opinion from an ANNEXURE skin expert P-7 on April 20, 2024, who stated that they could not observe any tattoo residue and two to three sessions would be required for full post-laser clearing. prima facie, hyperpigmentation suggests that the scar may have recovered. Therefore, in the exercise of its extraordinary authority, this Court 

The court, in finality, observed that In the event that the Medical Board rules in favour of the petitioner, the respondents will proceed with the petitioner’s appointment as Assistant Commandant, provided that there are openings in the Group A grade of Assistant Commandant. If not, the petitioner will be considered to have lost the case. The re-examination process mentioned above must be finished as soon as feasible—six weeks from today is the upper limit—and any additional action that has to be taken must be done so as soon as practicable.  

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Supreme Court Affirms Metropolitan Magistrate’s Ruling: Insufficient Evidence for Public Caste-Based Abuse Claims Leads to Dismissal of FIR Application

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Supreme Court Affirms Metropolitan Magistrate’s Ruling: Insufficient Evidence for Public Caste-Based Abuse Claims Leads to Dismissal of FIR Application 

Case Name: Priti Agarwalla And Others v. The State of GNCT Of Delhi And Others 

Case No.: Criminal Appeal No (S). 348  2021 

Dated: May 17, 2024 

Quorum:  Justice M M Sundresh and Justice S V N Bhatti 

 

FACTS OF THE CASE: 

An eager equestrian athlete can train at the Olympic Riding and Equestrian Academy, New Delhi, or simply “OREA.” The training institution in question is managed and administered by Mr. Kapil Nath Modi. The OREA trainee athletes were Appellant Nos. 2, 3, 6, and Respondent No. 2. The mother of appellant number two is appellant number one. Appellant No. 6’s parents are Appellant Nos. 4 and 5. 

June 2010 marked the Academy’s acceptance of Appellant No. 2 for equestrian training. 2009 marked the acceptance of Appellant No. 3 into OREA. It had been little more than two years since Appellant No. 6 began training at the Academy. A dedicated athlete who aspired to become the first dressage Olympic champion, respondent number two states that she has been training in equestrian sport at OREA since 2015. 

Since 1900, equestrian sports have been a part of the Olympic Games, having originated in the Greek Classics. Horse ballet is the colloquial name for the dressage sport. The judges are the riders and their equines depending on how they move, remain composed, flexible, and supple. One assesses the horse’s eagerness to do each step with the least amount of rider encouragement. Even for competitors who are not horseback riders, this activity exhibits the flawless synchronisation between the rider and the horse.  

The debate taken into consideration in this appeal is whether the athletes trained at OREA, who aimed to master the body and mind of a horse, have lost their composure, flexibility, and suppleness as a result of their training. The criminal appeal relates to the application dated 09.05.2018 filed under section 156(3) of the Code of Criminal Procedure, 1973, and the complaint filed by Respondent No. 2 on 29.04.2018 before SHO P.S. Fatehpur Beri, South Delhi, under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (also known as “the Act of 1989”) against the Appellants herein.  

 ISSUE: 

  • Whether the order dated 09.07.2018 of the Metropolitan Magistrate conforms to the material on record and satisfies the mandate of section 156(3) of the CrPC? 
  • Whether the complaint(s) dated 29.04.2018/09.05.2018 make out a prima facie case of an offence under section 3(1)(r) and 3(1)(s) of the Act 1989? 
  • Whether the impugned order is valid, legal and tenable in the facts and circumstances of the case?  

LEGAL PROVISIONS: 

  • section 156(3) of the CrPC- Procedure for investigation. The officer in charge of a police station shall promptly report any suspicions he may have about the commission of an offence to a magistrate who is authorised to take cognizance of the offence upon receiving a police report. He may also designate one of his subordinate officers, who must not be lower in rank than that prescribed by the State Government by general or special order, to accompany him to the scene to investigate the facts and circumstances of the case and, if necessary, to take action for the offender’s discovery and apprehension. 

 CONTENTIONS OF THE APPELLANTS:  

The learned counsel for the appellant argued that the order that is the subject of the appeal did not fully consider the context of the dispute that existed prior to the filing of the application on May 9, 2018, or the complaint on April 29, 2018, with the Ld. Magistrate. Respondent No. 2 has been urged by the OREA administrator to lodge a complaint, despite the fact that no violations of the Act of 1989 have been observed throughout time.  

He contends that Respondent No. 2 and the trainee appellants received training at OREA, that nothing is said to have transpired for years, and that all came to light when the appellants filed complaints against the administrator on April 3, 2018, and April 11, 2018.  

The administrator has pursued or pressured Respondent No. 2 to begin prosecution by filing a complaint dated 29.04.2018 and the application dated 09.05.2018 under the Act of 1989 against the appellants. This is because the administrator was unable to obtain anticipatory bail, among other things, in the FIRs filed by the Appellants.  

These complaints are said to be motivated and untrue. By drawing our attention to the numerous complaints that the appellants have filed against the OREA administrator, an attempt has been made to demonstrate that Respondent No. 2 has been brought in without any grievances against the appellants.  

 CONTENTIONS OF THE RESPONDENTS: 

The learned counsel of the respondents argued that the comment that promotes caste is criminal by the Indian Penal Code of 1860. The Act of 1989 was adopted by the Parliament because it became apparent that the marginalised groups in Indian society needed to be shielded from caste-based insults and acts of assistance in crimes against individuals and property.  

Respondent No. 2 is an individual and represents one of the millions of SC/ST persons in the nation who aspire to compete in the Olympics and win a gold medal in dressage. Respondent No. 2’s complaints, submitted through a complaint dated April 29, 2018, were ignored by the police. When section 156(3) of the CrPC was invoked, the Court of Metropolitan Magistrate, via an order dated July 9, 2018, made it nearly impossible to prosecute an offence under the Act of 1989.  

He claims that Respondent No. 2’s theory of the countercase for the administrator’s reason, etc., is just another tactic used to refute the complaints. Ld. Counsel contends that in order to understand the offence that has been reported against the appellants in this case, this Court should take into account the complaints dated 29.04.2018 and 09.05.2018 as well as the pertinent documents.  

COURT’S ANALYSIS AND JUDGMENT: 

The court observed that a few significant adjustments have been made to the legislative scheme under the Act of 1989 through Act No. 27 of 2018. It is important to recognise that Section 18A is one of the provisions that affects the Trial Court’s process. On August 20, 2018, Section 18A of the Act of 1989 became operative. As previously noted, the purported complaints in this instant appeal were made between April 29, 2018, and August 2, 2018, and they pertain to an allegation that was made two years earlier.  

Regarding the application submitted in accordance with section 156(3) of the CrPC, the court considers the discretion and jurisdiction of a magistrate. Is it necessary for the Magistrate to act upon a complaint that is brought before him and give instructions filing of a formal complaint (FIR) or, at his option, ordering a preliminary investigation after reviewing the charges. The answer to the query revolves around CrPC section 156(3).  

The court does not intend to provide numerous, concise citations on the subject. According to section 156(3) of the CrPC, the Magistrate poses a query: does the complaint as it is now presented provide evidence for directing the filing of a formal complaint or requesting information or a report from the police station with jurisdiction. The boundaries of this exercise’s inner and outside jurisdiction varies from case to case based on the type of complaint and of the charges and offence detailed in this kind of complaint. 

Taking everything into account, the Metropolitan Magistrate’s ruling is sound and unchallengeable given the facts of the case. As a result, the contested judgement is unsupportable and goes against the clause in section 4(2) of the Act of 1989 for the reasons and consideration mentioned above. As a result, the Criminal Appeal is granted and the contested judgement is overturned.  

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Reservation for transgenders in India.

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Transgender persons have long been marginalized and discriminated against in India. They have faced discrimination in education, employment, healthcare, and other areas of life. In recent years, there has been a growing movement to recognize the rights of transgender persons and to ensure that they have equal opportunities. One of the key ways to achieve this is through reservation. Reservation is a system of affirmative action that provides historically disadvantaged groups with representation in education, employment, and other areas. In India, reservation is already in place for other marginalized groups, such as Scheduled Castes and Scheduled Tribes. The reservation for transgenders is a recent development, but it is a significant step forward in the recognition of the rights of transgender persons in India. The reservation is designed to help transgender persons overcome the discrimination they face and to ensure that they have equal opportunities in education and employment.

Introduction:

The reservation for transgenders in India started in 2014, with the landmark judgment of the Supreme Court in the National Legal Services Authority (NALSA) vs Union of India case. In this judgment, the Supreme Court ruled that transgender persons are a “third gender” and have the same rights as other citizens, including the right to reservation. The first state to implement the NALSA judgment was Tamil Nadu, which in 2015 categorized transgender persons as “most backward classes” (MBCs). In 2021, Karnataka became the first state to offer 1% horizontal reservation to transgender persons in civil services posts. In April 2023, Madhya Pradesh included transgender persons in the Other Backward Classes (OBC) category. However, the implementation of reservation for transgenders in India is still in its early stages. There are many challenges that need to be addressed, such as the lack of clear guidelines on how to implement the reservation, the lack of awareness about the reservation among transgender persons, and the discrimination that transgender persons face in society. Despite these challenges, the reservation for transgenders is a significant step forward in the recognition of the rights of transgender persons in India. It is hoped that the reservation will help to improve the social and economic status of transgender persons and to ensure that they have equal opportunities in education and employment.

Here are some of the key events in the history of reservation for transgenders in India:

  • 2014: The Supreme Court of India rules in the NALSA vs Union of India case that transgender persons are a “third gender” and have the same rights as other citizens, including the right to reservation.
  • 2015: Tamil Nadu government categorizes transgender persons as “most backward classes” (MBCs).
  • 2021: Karnataka government offers 1% horizontal reservation to transgender persons in civil services posts.
  • 2023: Madhya Pradesh government includes transgender persons in the Other Backward Classes (OBC) category.

Context Discussion:

In cities such as Chennai, Mumbai, and Delhi, transgender people and rights activists have been holding peaceful protests for horizontal reservation. Nine years of the Landmark National Legal Services Authority (NALSA) vs. Union of India judgment in 2014, transgender people are still fighting for their basic rights, highlighting the lack of progress made in the last decade. Since the NALSA judgement wherein the Supreme Court recognised their constitutional rights of equality, liberty, and dignity, the fight for horizontal reservation has been a priority for transgender persons. In the judgement, the Court directed state governments to take steps to treat transgender people as “socially and educationally backward classes of citizens and extend all kinds of reservations in cases of admission in educational institutions and for public appointments”.  

In December 2014, a private member’s bill presented by Rajya Sabha MP from the DMK, Tiruchi Siva, proposed horizontal reservation which would mean that persons would get benefits as a separate class within the reservation categories similar to how it exists for women or people with disabilities, according to The Wire. The bill proposing this was passed unanimously in Rajya Sabha. This judgement was followed by the Transgender Persons (Protection of Rights) Bill 2016 which excluded reservation, sparking widespread protests led by transgender communities. In 2021, the Centre moved a Cabinet note to include transgender persons in the list of OBCs. This move would invisible caste differences and ignore the diversities that exist within the trans community, as pointed out by trans activists such as Banu. The clubbing of with OBCs is also a refusal to acknowledge that they are also Dalit and Adivasi trans and intersex persons who face a historical disadvantage due to discrimination and oppression because of their caste and gender identity. The inclusion of transgender persons in the OBC category refers to vertical reservations which remain inaccessible to large sections of the trans community. For instance, those who belong to Scheduled Caste and Tribe (SC/ST) categories won’t be able to access their right to reservation under SC/ST and transgender person, even when they belong to both. Those who are already in the OBC category, will not be able to access affirmative action under the transgender quota. Furthermore, trans persons will have to compete with other OBCs for the reservation, reducing their chances of getting a seat or a post. On March 27, 2023, Banu filed an application in Supreme Court seeking clarification on reservations for transgender people. However, the bench led by Chief Justice of India DY Chandrachud refused to hear, as reported by Live Law. The applicant asked for the Court to clarify that the reservation under 2014 NALSA is horizontal, and not vertical reservation. “My petition was dismissed and we were told that we can continue our advocacy with the state governments, which is what we are doing right now,” Banu says.  Talking about horizontal reservation, Banu says without horizontal reservation there is no talk about equality. “Implementation of horizontal reservation ensures everyone has a right to participate in the public space. Otherwise, only certain communities will have access to reservation that is not social justice.”

Why the issue came into light now

On February 14, 2022, the Rajasthan High Court directed the state government to provide reservation to transgenders in government jobs as per the Supreme Court order. A bench of Justice Madan Gopal Vyas and Justice Manindra Mohan Srivastava rejected the contention of the Rajasthan government that it was the prerogative of the state to give reservation in jobs or how much. The Jodhpur bench of the High Court directed the government to fix quota for transgenders in state government jobs. Along with this, the related processes were asked to be completed in four months. The High Court delivered its judgment on a plea by a member of the transgender community who aspired to become a sub-inspector of police and participated in the recruitment process related to it. It is noteworthy that the Supreme Court in its judgment in the case of the National Legal Services Authority has given a decision regarding the rights of transgenders in appointment in public services and admission in educational institutions. It is worth noting that the Karnataka government had decided to provide one percent reservation in government jobs for the people of the transgender community and it is the first state in the country to do so. Transgender is a person who lives as the opposite sex of their birth sex, when the development of a man’s genitals and brain does not correspond to the sex determined by his birth, then the woman begins to feel that she is a man and the man begins to feel that she is a woman. In the year 2019, Parliament had passed the Transgender Persons (Protection of Rights) Bill, 2019, a bill for social, economic and educational empowerment of transgender persons.

National Legal Services Authority (NALSA) vs Union of India Case.

Introduction:

The National Legal Services Authority (NALSA) vs Union of India case was a landmark judgment of the Supreme Court of India in 2014. In this judgment, the Supreme Court recognized transgender persons as a “third gender” and granted them the same rights as other citizens, including the right to equality, the right to non-discrimination, and the right to a dignified life. The NALSA case was brought by the National Legal Services Authority, a statutory body under the Ministry of Law and Justice, on behalf of the transgender community in India. The NALSA petition challenged the discrimination faced by transgender persons in education, employment, healthcare, and other areas of life.

Facts:

The NALSA petition highlighted the discrimination faced by transgender persons in India. The petition argued that transgender persons were denied access to education, employment, healthcare, and other opportunities. The petition also argued that transgender persons were subjected to violence and harassment.

Issues:

The NALSA case raised a number of important issues, including:

  • The legal status of transgender persons in India
  • The right to equality for transgender persons
  • The right to non-discrimination for transgender persons
  • The right to a dignified life for transgender persons

Judgement:

The Supreme Court ruled in favor of the NALSA petition and granted transgender persons the same rights as other citizens. The Supreme Court held that transgender persons are a “third gender” and that they are entitled to the same rights as men and women. The Supreme Court also held that the government must take steps to protect the rights of transgender persons and to ensure that they have equal opportunities. The Supreme Court directed the government to formulate a comprehensive policy for the welfare of transgender persons.

Conclusion:

The NALSA case was a landmark judgment that has had a significant impact on the lives of transgender persons in India. The judgment has helped to raise awareness about the rights of transgender persons and has led to some improvements in the treatment of transgender persons. However, there is still much work to be done to ensure that transgender persons have the same rights and opportunities as other citizens. The NALSA case is a reminder that the Supreme Court of India is committed to protecting the rights of all citizens, regardless of their gender identity. The judgment is a powerful tool for the transgender community and can be used to challenge discrimination and to demand equal rights.

Reservation for transgenders a complex and controversial issue in India.

There are a number of arguments for and against reservation, and the debate is likely to continue for some time. The below are the Arguments Stated for and against reservation:

Arguments for reservation:

  • Transgender persons are a marginalized group that has faced discrimination for centuries. They have been denied access to education, employment, and other opportunities. Reservation will help to level the playing field and give transgender persons a fair chance to succeed.
  • Transgender persons are often poor and economically disadvantaged. Reservation will help to improve their social and economic status. It will give them access to education and employment, which will lead to better job opportunities and higher incomes.
  • Reservation will help to raise awareness about the rights of transgender persons. It will show that the government is committed to protecting the rights of transgender persons and to ensuring that they have equal opportunities.

Arguments against reservation:

  • Reservation can lead to reverse discrimination. If transgender persons are given a quota in education and employment, it could mean that other marginalized groups, such as Scheduled Castes and Scheduled Tribes, would lose out on opportunities.
  • Reservation could create a dependency culture. If transgender persons are given a quota, they may become reliant on the government for their livelihood. This could discourage them from working hard and achieving success on their own.
  • Reservation could be seen as a token gesture. If the government does not take other steps to address the discrimination faced by transgender persons, reservation will be seen as a superficial solution.

The debate over reservation for transgenders is complex and there are valid arguments on both sides. Ultimately, the decision of whether or not to implement reservation is a political one. However, it is important to have a nuanced discussion about the issue and to consider all of the arguments before making a decision.

Conclusion:

Reservation for transgenders in India is that it is a complex issue with no easy answers. There are strong arguments on both sides of the issue, and it is important to weigh the pros and cons carefully before making a decision. Ultimately, the decision of whether or not to implement reservation for transgenders is a political one. There is no right or wrong answer, and the decision will likely vary from state to state. However, it is important to have a thoughtful and informed discussion about the issue before making a decision.

                                      It is important to remember that reservation is not a silver bullet. It can help to increase access to jobs and education, but it cannot solve all of the problems faced by transgender persons. It is also important to consider the long-term effects of reservation. Will it help to break down the barriers that prevent transgender persons from participating fully in society? Or will it create new barriers? The decision of whether or not to implement reservation for transgenders is a complex one, but it is one that deserves careful consideration.

Reference:

https://iasscore.in/current-affairs/prelims/reservation-for-transgender-in-india

https://indianexpress.com/article/explained/explained-law/transgender-demand-horizontal-reservation-explained-8694004/#:~:text=After%20Sangama%20v%20State%20of,OBC%20category%20in%20Madhya%20Pradesh.

https://www.iasparliament.com/current-affairs/daily-news/reservation-for-transgender-community

https://clpr.org.in/wp-content/uploads/2018/12/Reservations-for-Transgender-Persons-Draft-Policy-Brief.pdf

https://lifestyle.livemint.com/news/talking-point/the-long-fight-for-horizontal-reservation-for-transgender-people-111681814106470.html

https://www.drishtiias.com/state-pcs-current-affairs/reservation-for-transgender-in-government-jobs

https://www.thehindu.com/news/national/movement-to-secure-horizontal-reservation-for-trans-people-in-education-and-employment-gains-momentum/article66497445.ece

https://ohrh.law.ox.ac.uk/horizontal-reservation-for-indias-transgender-community-can-the-supreme-court-deliver/

https://www.thequint.com/explainers/trans-people-fight-for-horizontal-reservations-across-castes

https://www.hindustantimes.com/cities/mumbai-news/maharashtra-govt-bombay-high-court-transgenders-educational-and-job-reservations-101686660722866.html

(2014) SCC 438

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer”.

ARTICLE WRITTEN BY: JANGAM SHASHIDHAR.

 

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Madras High Court Directs Madras Bar Association To Give Membership Without Any Discrimination.

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Case Title:  Elephant G.Rajendran … Petitioner

                                              Versus
                   The Registrar-Genera and  Anrs … Respondents

Date of Decision:  Reserved On  16.06.2023
                              Pronounced On 22.06.2023

Coram: THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM 

Citation:  WP No.22460 of 2012
                             And
                MP No.2 of 2012 and WMP Nos.16543 and 16547 of 2023

Introduction:

The case of Elephant G Rajendran vs The Registrar General and others is a landmark judgment that has had a significant impact on the legal profession in India. The case concerned the Madras Bar Association’s (MBA) bye-laws, which made it difficult for ordinary lawyers to become members of the association. The bye-laws required lawyers to pay a high membership fee, and to have a minimum number of years of practice. Rajendran challenged the bye-laws, arguing that they were discriminatory and violated the right of lawyers to equality. The issues raised between the parties are directly relating to the Judicial Institution and the Justice Delivery System. Thus, this Court thought fit to consider the related issues carefully in the interest of the Judicial Institution, Justice Delivery System and in the interest of public. This Court thought fit that the relief sought for by the petitioner is to be considered in the perspective of the issues raised and if necessary by moulding the relief under Article 226 of the Constitution of India.

Facts:

The present case was filed by Senior Advocate Elephant Rajendran, who alleged that his son Neil Rashan was prevented from drinking water at the MBA hall by another Senior Advocate Mr. PH Pandian. Rajendran contended that since the Association was functioning upon public money, the facilities provided could not be denied to other practicing lawyers. He added that the actions of the Association were discriminatory and deprived lawyers from utilizing public facilities.

Among other things, Rajendran also contended that the association did not follow a transparent and democratic norm/guideline while admitting members. He also added that the action of the association-hosting meetings, parties, etc within the High Security Zone of the Madras High Court posed a threat to the High Court. He also brought to the attention of the court various instances of discrimination where the association had arbitrarily and in a discriminatory manner, not considered the membership application of different persons.

On the other hand, the association denied all such allegations and submitted that the incident of denying drinking water was incorrect. It was also submitted that the Association had, since then fitted two water cans for the usage of practicing lawyers. Citing all the contributions made by the Association, towards the High Court and in general, it was submitted that the matter may be closed since both the Senior Advocate and the netitioner’s son were no more.

Issues:

  • Whether the MBA’s bye-laws were discriminatory?
  • Whether the public facilities at the MBA were for public use?
  • Whether the MBA could deny access to its public facilities to lawyers who were not members of the association?

Legal Analysis:

The Court observed that ‘untouchability’ was not just caste-based discrimination but also all forms of social ostracism and exclusion which have their basis in ritual ideas of purity/pollution and hierarchy/subordination.

“A broad reading of Article 17 means that not only the caste-based practice of untouchability falls within the ambit of the constitutional prohibition, but practices that bear a family resemblance to “untouchability” are captured as well. This requires the Court to ask whether a particular practice, like untouchability, is a practice of social subordination, exclusion, and segregation, based upon an idea that certain personal characteristics (whether caste, or gender, or menstruation) can justify relegating individuals to an inferior position in society”, the Court observed.

Elite society of lawyers Should not  be created with Public cost.

“When such Associations are formulated inside the Court premises/public buildings and enjoying the public facilities at the cost of the pubic, then they are bound to admit the Lawyers, who all are willing to become the members of Bar Association”.

Referring to the provisions of the Advocates Act and the BCI Rules, the Court said that the choice of membership of an Association is not of the Association, but of the individual Advocate.

The Court said that creating class within the class of lawyers cannot be construed as intelligible differentia. It is an improper discrimination by conferring privileges upon a class of Lawyers, which is arbitrary and not falling within the classification of reasonable distinction.

 After perusing the Byelaws of the Madras Bar Association, the Court opined that that it is very difficult for a lawyer to become a member of the Madras Bar Association. Qualified members alone can propose the name of the Lawyer to become member. Therefore, choice is provided to the existing members. The existing members will have their own choice in selecting the members. Such allocation would undoubtedly cause not only discrimination but lead to the constitution of an elite community of lawyers within the lawyers community. Such a constitution of elite community of lawyers must not be allowed at the cost of the public, more-so in the public premises.

The Court also stated that when the High Court Administration granted space for Bar Associations by providing free electricity and other facilities at the cost of public, such Associations cannot be allowed to restrain the practicing lawyers from utilising such public facilities and in the event of allowing such Bar Associations to have Monopoly, the same is to be construed as unfair practice, unconstitutional and denial of basic rights to the other practicing lawyers.

Judgement:

Justice SM Subramaniam, presiding over the case, declared the incident as “despicable” and recognized the act of discrimination as a breach of constitutional guarantees, stating that it could be construed as ‘untouchability.

S.M. Subramaniam, J. gave the following directions:

 Madras Bar Association was directed to pay a some of Rs.5,00,000/- to the Senior Advocate towards compensation for the untoward incident happened in the Madras Bar Association premises on 06-01-2012, since it is vicariously liable for the conduct of its own members.

 It also has been directed to admit respondents no.3 and no.4 as members of the Madras Bar Association within a period of one week from the date of receipt of a copy of this order.

 Madras Bar Association was directed to distribute applications for membership to all the interested practising lawyers in the High Court of Madras and admit them as members without discriminating any lawyer on the basis of caste, gender, religion, economic status, personal affiliations with Senior Advocates or dignitaries and political affiliations; without reference to the draconian Bye-Laws regarding eligibility criteria to become the member of the Association; or by amending the Bye-Laws suitably.

 In the event of failure on the part of the Association, the Madras High Court Administration and the Bar Council of Tamil Nadu are bound to initiate all appropriate actions in the manner known to law.

 The Bar Associations functioning in the High Court premises are directed to obtain prior permission from the Registrar General, Madras High Court for conducting / holding celebrations, functions, birthday parties, lunch parties etc., in the interest of safety and security in the High Court Premises.

Shifting of Madras Bar Association from “High Security Zone” to any other place in the High Court premises is within the exclusive domain of the High Court administration. It is for the Registrar General, Madras High Court to initiate appropriate actions by placing all the facts before the Chief Justice of Madras High Court.

Conclusion:

The court’s decision was a victory for the right of all lawyers to equality and access to public facilities. The decision has helped to ensure that the legal profession is more inclusive and accessible to all lawyers, regardless of their financial means or social status.The case is also significant because it sent a strong message to bar associations that they cannot function as “elite societies” at public cost. The court’s decision made it clear that bar associations have a responsibility to serve the public interest, and that they cannot discriminate against lawyers who are not members of the association.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

 JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

Click here to view Judgement