real estate law

On a plain reading of the words of Sections 52 and 54 of the Transfer of Property Act, we have no doubt that a sale which takes place after the institution of the suit in pursuance of a prior agreement to sell, is hit by Section 52 of the Transfer of Property Act. It is not necessary that the person who is adversely affected by Section 52 should have been made a party to the suit or that he should have had notice of the suit, (see Lakshmanan v. Kamal, AIR 1959 Kerala 67 and Krishnabai v. Savlaram, AIR 1927 Bom.

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Madhya Pradesh High Court

Munnilal Shyamle And Anr. vs Bhaiyalal Hazari And Ors. on 29 August, 1960

Equivalent citations: AIR 1962 MP 34

Author: Shrivastava

Bench: T Shrivastava, S Bhargava

JUDGMENT Shrivastava J.

  1. This Letters Patent appeal has been filed against the judgment of a single Judge of this Court (Chaturvedi J.) in Second Appeal No. 278 of 1957.
  2. The suit out of which that second appeal arose was filed by respondents 1 and 2 (Bhaiyalal and Bhajni) against the appellants Munnilal and Ramdayal as defendants 1 and 2 and respondent No. 3 Bharosa as defendant No. 3. For convenience we shall refer to respondents 1 and 2 as the plaintiffs and the appellants Munnilal and Ramdayal as the defendants.
  3. The subject-matter of the suit was 29.29 acres of land, situated in Khiria Khawas, Tahdil Rebli District Sagar, as also a house in that village. These properties belonged to Bharosa (respondent No. 3). On 30-9-1953 he contracted to sell these properties to the defendants. On 3-10-1953 the defendants gave a notice to the plaintiffs and others that they were purchasing the suit properties from Bharosa. On 2-12-1953 they filed a suit for specific performance against Bharosa and that suit was decreed. In April 1955, the defendants, dispossessed the plaintiffs from the land in execution of the decree obtained in the suit for specific performance.
  4. The plaintiffs’ (respondents 1 and 2) case was that on 20-9-1953, i.e., 10 days prior to the contract in favour of the defendants, Bharosa had contracted to sell the suit properties to them and had taken Rs. 600/- as part payment towards the sale price. The agreement was to execute a sale-deed within two months from that date. Such a sale-deed was executed in their favour on 25-1-1954. They continued in possession of the suit properties thereafter till they were dispossessed in April 1955 by the defendants. The plaintiffs, therefore, prayed that the decree obtained by the defendants in the suit for specific performance of the contract was not binding on them and they were entitled to get back possession of the suit properties.
  5. The defendants resisted the suit on the ground that the contract, dated 20-9-1953, was really entered into to defeat their claim on the basis of the contract dated 30-9-1953. According to them, it was an ante-dated document without consideration. They further contended that the sale-deed, dated 25-1-1954, which was executed during the pendency of the suit for specific performance, was hit by Section 52 of the Transfer of Property Act and was not, therefore, binding on them.
  6. The trial Court dismissed the suit upholding the contentions of the defendants that the plaintiffs’ contract was ante-dated and was entered into on 2-10-1953 after the contract with the defendants and with full knowledge of that contract. The Court also held that as the transfer was pendente lite, the plaintiffs were bound by the result of the suit for specific performance. The lower appellate Court, however, reversed these findings of the trial Court and concluded that the agreement, dated 20-9-1953 was real, genuine and for consideration. It further held that the defendant’s took the subsequent agreement, dated 30-9-1953, with the knowledge of the agreement in favour of the plaintiffs. Accordingly, it held that the doctrine of lis pendens did not apply to case and under Section 40 of the Transfer of Property Act the defendants could not claim possession of the lands as against the plaintiffs. The suit was accordingly decreed.

In second appeal, though the appellants had raided several grounds, the appeal was decided only on the question whether the transaction in favour of the plaintiffs was hit by Section 52 of the Transfer of Property Act. The learned single Judge came to the conclusion that that section did not apply to the facts of the case. The appeal was accordingly dismissed and it is against that decision that the defendants 1 and 2 have filed this Letters Patent appeal.

  1. Section 52 of the Transfer of Property Act provides that the property in suit cannot be transferred or otherwise dealt with by any party to the suit, so as to affect the rights of any other party thereto under any decree or order which may be made therein. The requirements of Section 52 were stated to be: (i) the pendency of a suit (ii) non-collusive character of the suit, (iii) any right to immovable property being in question in that suit and (iv) the other party having some right under the decree in that suit. If these requirements are satisfied, the other party is not bound by the transfer made during the pendency of the suit. (See Hiranya Bhusan v. Gouri Dutt, AIR 1943 Cal 227). The doctrine with which Section 52 is concerned rests upon the foundation that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail.
  2. As provided in Section 54 of the Transfer of Property Act, a contract for the sale of immoveable property does not, of itself, create any interest in or charge on such property. On the basis of such a contract, it is not therefore possible to contend that an interest in the property has been created. If a sale takes place in enforcement of such, a contract during the pendency of a suit, the sale cannot affect the parties to the suit. Under the English Law, a contract of sale for real property makes the purchaser the owner in equity of the estate. Such a distinction is not recognised in India. (See Maung Shwe Goh v. Maung Inn, AIR 1916 PC 139 and also Mohammad Saddiq v. Ghasi Ram, AIR 1946 Lah 322 (FB)). Accordingly, by a mere agreement to sell no interest in the immoveable property is created. The observations from Blackwood v. London Chartered Bank of Australia, 1874 LR 5 PC 92 at p. 111, quoted by the learned single Judge have no application to India where the distinction between legal and equitable estate does not exist
  3. The first case referred to by the learned single Judge is Sheikh Bikala v. Sheik Ali, AIR 1950 Orissa 210. In that case, a mortgage was created by the defendant prior to the institution of the suit during the pendency of which sale in enforcement of the mortgage took place. It was held that that transfer was not affected by Section 52 of the Transfer of Property Act. The reason for this is that the transfer had already taken place prior to the institution of the suit and it was only that right which was later enforced. The only principle which was laid down in that case is that rights prior to the institution of the suit are not affected by Section 52. The same principle has been laid down in Renuka Bala v. Nagendra Nath, AIR 1939 Cal 055, which is the second case referred to.
  4. In the third case, Narayan Prasad v. Rajkishore, AIR 1951 Pat 613, A had agreed to grant a lease to B of a cinema theatre at a future date provided B made the necessary repairs to make it fit for purpose of cinema shows within a period of 9 months. B entered into possession under the agreement to make the repairs. C who had notice of this contract took a lease from A of the theatre within the period of 9 months. On A’s failure to give possession, C sued A for specific, performance and obtained a decree. During the pendency of the suit, A executed a registered lease in favour of B in pursuance of the prior agreement. B then brought a suit against C for injunction restraining him from executing the decree against him. It was held, under these circumstances, that B was not bound by the result of the suit filed by C as his rights were in enforcement of a prior agreement.

It appears from the discussion in paragraph 4 of that judgment that the agreement to lease was actually treated as a lease, as Section 2 of the Transfer of Property Act defines a lease to include “an agreement to lease”. According to that definition, an agreement to lease is not just an agreement but it “effects an actual demise and operates as a lease”. Under these circumstances, the agreement in that case operated as a transfer of property and the doctrine of lis pendens did not therefore apply, as the subsequent transfer was merely to enforce the earlier transfer. That case, therefore, fell within the principle laid down in the Orissa and the Calcutta cases, cited in the earlier paragraph.

  1. The fourth case which has been cited by the learned single Judge is Guru Basappa v. Santhappa, 48 Mad LJ 496 : AIR 1925 Mad 710. In that case, a sale-deed was executed prior to the suit for specific performance, but it was registered after the institution thereof. In such a case, the registration of a document under the Registration Act operates from the date of the document and therefore in that case the transfer really took place before the suit. Naturally, “therefore, the doctrine of lis pendens did not apply, as the case did not at all fall within Section 52 of the Transfer of Property Act. The observations of their Lordships that the mere filing of a Plaint by any person in respect of the property already conveyed would not prevent the vendee from enforcing his rights under the document, which had been executed, fully disposed of the case before them. And the further observations that the vendee in such a case could sue for specific performance of the contract of sale were unnecessary and are in the nature of obiter. The respondents 1 and 2, in the instant case, do not derive any help from that decision.
  2. In the cases relied upon by the learned single Judge we do not find anything directly laying down that a sale after the suit in pursuance of an agreement before the suit is protected against the operation of Section 52 of the Transfer of Property Act
  3. In Bishan Singh v. Khazan Singh, AIR1958 SC 838, their Lordships of the Supreme Court laid down the principle in the following words:

“The doctrine of lis pendens applies only to a transfer pendente lite, but it cannot affect a preexisting right. If the sale is a transfer in recognition of a pre-existing, and subsisting right, it would not be affected by the doctrine, as the said transfer did not create new right pendente lite; but if the pre-existing right became unenforceable by reason of the fact of limitation or otherwise, the transfer, though ostensibly made in recognition of such a right, in fact created only a new right pendente lite.”

In our opinion, the expression “pre-existing and subsisting” right was intended by their Lordships to refer to a transaction amounting to a transfer of interest in property and not to a mere agreement to sell.,

  1. In Dakshinamurthi v. Sitharamayya, 1958-1 Andh WR 85, the question arose in the context of a transfer of a specific item of joint Hindu family property by a co-sharer pending a partition action in pursuance of an agreement entered into prior to that suit. It was held that the sale was hit by Section 52 of the Transfer of Property Act, though the alienee was entitled to work out his equities in the partition suit. The conclusion was supported thus:

“The terms of Section 52 are quite clear that the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as So affect the rights of any other party thereto during the pendency of the suit Or proceeding. The transfer under Section 54 can be effected only by a registered instrument. The facts establish beyond doubt that the sale was effected only after the institution of the suit. So, on the date of the filing of the suit, defendants 2 and 3 had a right in the B schedule properties. The fact that they entered into an agreement prior to that date to sell the properties to the 5th defendant does not affect the application of Section 52 of the Transfer of Property Act.”

  1. On a plain reading of the words of Sections 52 and 54 of the Transfer of Property Act, we have no doubt that a sale which takes place after the institution of the suit in pursuance of a prior agreement to sell, is hit by Section 52 of the Transfer of Property Act. It is not necessary that the person who is adversely affected by Section 52 should have been made a party to the suit or that he should have had notice of the suit, (see Lakshmanan v. Kamal, AIR 1959 Kerala 67 and Krishnabai v. Savlaram, AIR 1927 Bom 93). The contention that respondents 1 and 2 did not have any notice of the suit, which was filed by the appellants for specific performance, has therefore no force.
  2. Shri R. K. Pandey for the respondents points out that the lower appellate Court had found that respondents 1 and 2 had been placed in possession of the property on 20-9-1953 and the appellants had notice of their contract on 30-9-1953. Shri Pandey further contends that as the sale in favour of respondents 1 and 2 was in writing and as they were placed in possession, they had a right to contest the appellants’ claim under Section 53A of the Transfer of Property Act. If the vendor himself could not claim possession from the respondents, the position of the appellants could be no better. Shri B. L. Seth, learned counsel for the appellants, on the other hand, contests the accuracy of these findings on the ground that they are contrary to the pleadings of the plaintiffs in the case and are not supported by any evidence.
  3. As we have said earlier, the learned single Judge decided the second appeal on the abstract proposition of law that a transfer in pursuance of a prior agreement to sell cannot be affected by Section 52, The other points, which were raised in the grounds of appeal, were not considered by him, as the decision on this point was considered sufficient to dispose of the appeal. The decision in the Letters Patent appeal should be confined to examining the correctness of the point actually decided by the learned single Judge. It will not be right for us to decide all the other grounds raised in support of the appeal. Accordingly, the only proper course which should, in our opinion, be adopted in this case is to send back the case for a decision on the other points.
  4. Accordingly, the decision of the learned single Judge dismissing the second appeal is set aside. The appeal shall now be heard as a second appeal on other grounds raised by the appellants. Costs of this Letters Patent appeal shall be borne in accordance with such orders as may be passed in second appeal in this respect.

 

 

Order 39 Rule 1 & 2 of C.P.C. Cases in which temporary injunction may be granted.- Where in any Suit it is proved by affidavit or otherwise

 

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,

(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,the court may by Order grant a temporary injunction to restrain such act, or make such other Order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the court thinks fit, until the disposal of the suit or until further orders.

 

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Grant of an interim relief in regard to the nature and extent thereof depends upon the facts and circumstances of each case as no strait-jacket formula can be laid down. There may be a situation wherein the defendant/respondent may use the suit property in such a manner that the situation becomes irretrievable. In such a fact situation, interim relief should be granted (vide M. Gurudas & Ors. Vs. Rasaranjan & Ors. AIR 2006 SC 3275; and Shridevi & Anr. vs. Muralidhar & Anr. (2007) 14 SCC 721

Grant of temporary injunction, is governed by three basic principles, i.e. prima facie case; balance of convenience; and irreparable injury, which are required to be considered in a proper perspective in the facts and circumstances of a particular case. But it may not be appropriate for any court to hold a mini trial at the stage of grant of temporary injunction (Vide S.M. Dyechem Ltd. Vs. M/s. Cadbury (India) Ltd., AIR 2000 SC 2114; and Anand Prasad Agarwalla (supra)

In Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., AIR 1999 SC 3105, this court observed that the other considerations which ought to weigh with the Court hearing the application or petition for the grant of injunctions are as below :

(i) Extent of damages being an adequate remedy;

(ii) Protect the plaintiff’s interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor ;

(iii) The court while dealing with the matter ought not to ignore the factum of strength of one party’s case being stronger than the others;

(iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case- the relief being kept flexible;

(v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties’ case;

(vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant;

(vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.”

In Dalpat Kumar & Anr. Vs. Prahlad Singh & Ors., AIR 1993 SC 276, the Supreme Court explained the scope of aforesaid material circumstances, but observed as under:-

“The phrases `prima facie case’, `balance of convenience’ and ` irreparable loss’ are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man’s ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts rest eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience.”

This Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hira Lal, AIR 1962 SC 527 held that the civil court has a power to grant interim injunction in exercise of its inherent jurisdiction even if the case does not fall within the ambit of provisions of Order 39 Code of Civil Procedure.

 

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THE SUPREME COURT OF INDIA

 

CIVIL APPELLATE JURISDICTION

 

CIVIL APPEAL NO.                OF 2009

(Arising out of SLP (Civil) No. 18934 of 2008)

 

 

Zenit Mataplast P. Ltd.                               ….Appellant

 

Versus

 

State of Maharashtra and Ors.                         ….Responde

 

JUDGMENT

Dr. B.S. Chauhan, J.

  1. Leave granted.
  2. This appeal has been filed against the order of the Bombay High Court dated 5.2.2008 rejecting the application for interim relief while admitting the Writ Petition No. 7245/2006 and expediting its hearing against the allotment of land by the respondent No.2 in favour of respondents nos.4 and 5.
  3. The facts and circumstances giving rise to this case are that appellant, a Private Ltd. Company, incorporated under the provisions of Companies’ Act 1956, is indulged in manufacturing of press components, moulded components, soft luggage, moulded luggage and other travel goods, tools, moulds jigs, dies fixtures and other engineering goods and carrying its business on a land measuring 4050 sq. meters on plot no.F-18 in the Satpur industrial Estate, Nasik. The appellant submitted an application dated 30.11.2005 (Annexure P-3) for allotment of 8000 sq. yards land from the adjacent vacant land on a prescribed form complying with other requirements. The said application was rejected by the respondent no.2, the Maharashtra Industrial Development Corporation (hereinafter referred to as `Corporation’), a Maharashtra Government Undertaking constituted under the provisions of Maharashtra Industrial Development Act, 1961 (for short 1961 Act). In fact, the Corporation has powers and duties to make allotment of land for industrial purposes. It appears that vide letter dated 14.3.2005 to the Hon’ble Chief Minister of Maharashtra, the respondent no.4, M/s. Mahendra & Mahendra Ltd., a leading industrial Company, asked for providing pending dues of incentives which were extended to it earlier. In the said letter it was also pointed out that the respondent no.4 has entered into a collaboration with automobile company Renault and intended to set up a joint venture for manufacturing of car, “The Logan” into India and the said respondent was locating the project at Nasik (Maharashtra) or Zahirabad (Andhra Pradesh) or at any other new place in Uttranchal. In the said letter, a demand for land measuring 5 to 8 acres for parking facilities at Satpur Industrial Estate, Nasik and 3 to 4 acres parking plot outside the existing factory gate at Nasik was also included. The Government of Maharashtra vide letter dated 10.6.2005 promised that the respondent no. 2 – Corporation would provide maximum possible vacant land in the existing area at the applicable rates and the Corporation would further facilitate acquisition of additional land identified by the Corporation for its project as well as for locating the cluster of industrial units (Annexure R.4/R.5). The Government of Maharashtra accorded the status of “Mega Project” to the forthcoming project of respondent no. 4 known as `Logan Car Project’ at Nasik vide letter dated 11.11.2005 (Annexure R.4/R.6). Respondent no. 4 submitted an informal application dated 23.11.2005 to the Respondent No. 2 to make the allotment of designated Open Space, Plot Nos. 8 and 9, in its favour. The user of land was changed from open space to Industrial Area vide resolution dated 10.2.2006 and plot was renumbered as 126, instead of Open Space No.9, by the respondent-corporation. The formal application was submitted for that purpose by the respondent no. 4 on 1.3.2006 to the respondent no. 2 (Annexure R.4/R.9). Respondent No. 2, vide letter dated 27.3.2006 (Annexure R.4/R.10), allotted the land measuring 17 acres in favour of the respondent no. 4 for a total premium of 7,51,14,600/- after changing the user of the land from vacant space to industrial. On the same date, namely, 27.3.2006, the respondent no. 4 was put in possession of the said land and an agreement for licence/lease was executed between respondent no. 2 and respondent no. 4 on 3.7.2006. A part of open space was also converted as a “parking space” and it was allotted in favour of respondent no.5 for parking of vehicles.
  4. The appellant made various representations to the Respondent No. 2, Corporation particularly, dated 15.3.2006, 3.4.2006, 25.8.2006, 3.10.2006 and 10.10.2006, pointing out that rejection of its application and allotment of huge area of land in favour of respondent Nos .4 and 5 was discriminatory and violative of laws and particularly the statutory requirement which provided for allotment of land to the neighbouring unit holders. The appellant asked that it may be allotted some part of the remaining land from the designated vacant land whose land user has been converted from open space to industrial Area. As no order was passed on its representations, the appellant filed the writ petition in October 2006 before the High Court. However, the Court admitted the writ petition, expedited the hearing of the writ petition but rejected the application for interim relief. Hence, this appeal.
  5. Shri Dushyant Dave, learned senior counsel appearing for the appellant has submitted that the application of the appellant has been rejected without assigning any reason whatsoever and probably the reason may be that on the date of passing the order the land was merely a designated vacant land and not meant for industrial purpose. However, in order to favour the respondent No.4, a big industrial house, the State authorities passed the directions to the respondent- Corporation to allot open space after change of user. Application of respondent no.4 was processed in haste and all consequential orders have been passed within a very short span of time. Land has been allotted to Respondent No.4 on the direction of the higher authorities, which is not permissible in law. Thus, such a course is violative of Article 14 of the Constitution of India. The writ petition filed by the appellant would become infructuous, if the respondent no.4 is permitted to develop the allotted land. The High Court ought to have granted the interim relief. Therefore, the appeal deserves to be allowed.
  6. On the contrary, Shri Bhaskar P. Gupta, learned senior counsel appearing for respondent No.4 has submitted that there had been large number of offers by various States to Respondent No.4 to set up the industry for the purpose of production of cars/jeeps and various incentives were offered, particularly, by the States of Madhya Pradesh and Andhra Pradesh. However, as it has several units in Maharashtra, the respondent No.4 made application to the Hon’ble the Chief Minister for allotment of land and after considering the facts, it was decided to make the allotment of land at Satpur Industrial Estate Nasik, as the appellant was having about four other units in close vicinity thereof. It is also submitted by Shri Gupta that no law has been violated and the authorities proceeded strictly in conformity with the statutory requirements. Respondent no.4 has already invested a huge amount in the project. Appellant did not approach the HighCourt promptly. Thus, the High Court has rightly refused to grant the interim relief. Impugned order does not require any interference.
  7. Shri Shyam Divan, learned senior counsel appearing for the respondent-Corporation has submitted that when the application of the appellant was rejected, the land in dispute was a designated vacant land and therefore, it could not be allotted for any industrial purpose. The land was allotted to the respondent no.4 after change of user, considering the requirement of respondent No.4 and taking into consideration various other factors, particularly, the development of the city keeping in mind that the industry of respondent No.4 would provide job to large number of persons and the people of the local area would be benefitted otherwise also. Appellant cannot be heard complaining against the allotment in dispute, as it is in consonance with all the statutory requirements. Interim relief could not be granted at a belated stage as the appellant had not filed the petition before the High Court immediately after allotment of the land. Thus, the interim application has rightly been rejected by the High Court.. The appeal has no merit, thus liable to be dismissed.
  8. We have considered the rival submissions made by the learned counsel for the parties and perused the record.
  9. It is evident from the site plan that a large number of plots had been carved out from the huge area of land and in between, an open vacant space being No.9 was left. It is also evident from the said site plan that after plot Nos. F-13, F-14 and F-15, there was a vacant space and then, plot Nos. F- 18, F-19 etc. Thus, there must have been plot Nos. F-16 and F-17 between plot nos.F-15 and F-18, at one stage. The land in dispute was adjacent to said two plots also. The appellant had demanded the land from Plot Nos. F- 16 and F-17. However, there is nothing on record to show as to how these two plots bearing Nos. F-16 and F-17 could disappear from the site plan and become part of Open Space No.9.
  10. Application of the appellant has been rejected vide order dated 19.12.2005 without assigning any reason and it cannot be said as to whether the application was rejected merely on the ground that the land in dispute, at that time was a designated vacant land and not meant for the industrial purpose, thus, its application could not be entertained. On the contrary, admittedly in the year 2004, a part Plot No. F-17 (vacant space) measuring about 500 Sq.Mtrs. had been allotted to BSNL without the change of the user. No explanation could be furnished by the respondents as to under what circumstances such an allotment was permissible.
  11. So far as the allotment to respondent No.4 is concerned, this had been under the directions of the State Government to the Corporation. The Corporation changed the land user and made the allotment of land to the extent of 17 acres and the possession had been handed over immediately. The license deed had been executed and all the proceedings had been taken in close proximity of time. Letter written by respondent No.4 dated 14th March, 2005 (Annexure R4/4) to the Hon’ble Chief Minister suggests that some other States had offered the respondent No.4 various incentives for establishing an industrial unit. It is evident from the letter dated 10th June, 2005 (Annexure R4/5) written by the Secretary to the Ministry of Industries, Energy and Labour Department, Maharashtra to the Respondent No.4 that the State Government was willing to make various concessions and provide incentives including the allotment of land at Nasik for establishment of LOGAN cars project.
  12. The allotment of land is governed by the provisions of 1961 Act, Section 14 of which specifies the functions and powers of the Corporation and the Corporation has, in general power to promote and assist in the rapid and orderly establishment growth and development of industries in the State of Maharashtra. Section 15 thereof provides for general power of the Corporation which includes the power to acquire and hold the land and to dispose of the same by executing the lease, sale deeds, exchange or otherwise transfer any property. Section 31 of the 1961 Act, provides for acquisition and disposal of the land.
  13. The Maharashtra Industrial Development Corporation (Disposal of Land) Regulations, 1975 have been framed to give effect to the provisions of 1961 Act. Regulation 4 provides for disposal of the land covered by the lay out prepared by the Corporation by public auction or by entertaining individual applications. Regulation 6 provides for a particular form to be filled up where the allotment is to be made by applications and deposit of process fee etc. Regulation 10 provides that the Land Committee shall consider the application and pass appropriate orders for allotment of land.
  14. Government of Maharashtra had issued a Circular dated 25th January, 1994 regarding fixation of rate of industrial area in which allotment of plot has to be made by inviting tenders. Clause 4 thereof provided for “preferential right” of the unit holder for having allotment of “neighbouring land” for the purpose of factory expansion. It also provides that where there are more than one application for allotment, the plot may be disposed of by adopting the tender process.
  15. There had been claims and counter claims by the parties. The appellant claimed that it had preferential right for allotment of the part of the vacant land for expansion of its factory. However, its application has been rejected without giving any reason whatsoever, though the law requires giving the reasons for passing any order and the allotment in favour of respondent No.4 was passed in undue haste showing favouritism being a big industrial unit. The right of equality guaranteed under Article 14 of the Constitution stood violated. The application of the appellant had been made prior to the application made by respondent No.4. The respondent No.4 instead of making application to the Corporation started negotiations with the Government directly for allotment of land merely by writing a letter in June, 2005 and on 10th June, 2005 an understanding was arrived in between the Government of Maharashtra and respondent No.4 of commissioning of the Project at Nasik. The informal application was filed by respondent No.4 on 23.11.2005 for making allotment of land from Open Space No.9. The application of respondent No.4 was processed by Land Allotment Committee on 22nd December, 2005, wherein the observation was made that it was an important industry for the city land and its expansion would greatly benefit the industrial growth in Nasik.
  16. The user of land in Open Space No.9 was converted from Open Space to Industrial Area vide order/resolution dated 10th February, 2006 and it was re-numbered as Plot No.126. The first formal application was submitted by the respondent no.4 to the respondent-corporation only on 1.3.2006 and the allotment was made in favour of the respondent No.4 on 27.3.2006. Respondent no.4 was put in possession on 27.3.2006 itself. The license agreement was executed by the respondent corporation in favour of respondent no.4 on July 3, 2006. The demand of respondent No.4 had not been to the extent the area had been allotted.

In view of the above facts and circumstances, the sole question has arisen as to whether the High Court was justified in not granting the interim relief in favour of the appellant?

  1. Records reveal that the appellant had been bargaining with the respondent-Corporation making application after application for allotment of land from remaining vacant area and approached the Court at some belated stage. Even before the High Court the matter remained pending for long before it was admitted and the application for interim relief was rejected.
  2. The Regulation 1975 provides for allotment of land by public auction or by entertaining individual applications. Therefore, the question does arise as to whether without taking a decision that land is to be settled by negotiation, the process of auction or calling the tender can be dispensed with.
  3. In the instant case the appellant had been asking the respondent no.2 to grant the lease of plot nos.F-16 and F-17, which had earlier not been the part of the Open Space No.9, on the basis of being contiguous and adjacent to the appellant’s existing factory at plot no.F-18. It has been canvassed on behalf of the appellant that the action of the respondent no.2 is arbitrary and unreasonable and not in conformity with the statutory provisions.
  4. Every action of the State or its instrumentalities should not only be fair, legitimate and above-board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even apparently give an impression of bias, favouritism and nepotism. The decision should be made by the application of known principle and rules and in general such decision should be predictable and the citizen should know where he is, but if a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law (vide S.G.Jaisinghani Vs. Union of India & ors., AIR 1967 SC 1427; Haji T.M. Hassan Rawther Vs. Kerala Financial Corporation, AIR 1988 SC 157).
  5. In essence, the action/order of the State or State instrumentality would stand vitiated if it lacks bona fide as it would only be a case of colourable exercise of power. The Rule of Law is the foundation of a democratic society. In I.R. Coelho (dead) by LRs Vs. State of Tamil Nadu, AIR 2007 SC 861, the Apex Court held as under:-

“The State is to deny no one equality before the law……..Economic growth and social equity are the two pillars of our Constitution which are linked to the right of an individual (right to equal opportunity), rather than in the abstract…….Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review.”

  1. In a case like this, when the applicant approaches the Court complaining against the Statutory Authority alleging arbitrariness, bias or favouritism, the court, being custodian of law, must examine the averments made in the application to form a tentative opinion as to whether there is any substance in those allegations. Such a course is also required to be followed while deciding the application for interim relief.
  2. Interim order is passed on the basis of prima facie findings, which are tentative. Such order is passed as a temporary arrangement to preserve the status quo till the matter is decided finally, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. The object of the interlocutory injunction is, to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. (vide Anand Prasad Agarwalla v. State of Assam vs. Tarkeshwar Prasad & Ors. AIR 2001 SC 2367; and Barak Upatyaka D.U. Karmachari Sanstha (2009) 5 SCC 694)
  3. Grant of an interim relief in regard to the nature and extent thereof depends upon the facts and circumstances of each case as no strait-jacket formula can be laid down. There may be a situation wherein the defendant/respondent may use the suit property in such a manner that the situation becomes irretrievable. In such a fact situation, interim relief should be granted (vide M. Gurudas & Ors. Vs. Rasaranjan & Ors. AIR 2006 SC 3275; and Shridevi & Anr. vs. Muralidhar & Anr.(2007) 14 SCC 721.
  4. Grant of temporary injunction, is governed by three basic principles, i.e. prima facie case; balance of convenience; and irreparable injury, which are required to be considered in a proper perspective in the facts and circumstances of a particular case. But it may not be appropriate for any court to hold a mini trial at the stage of grant of temporary injunction (Vide S.M. Dyechem Ltd. Vs. M/s. Cadbury (India) Ltd., AIR 2000 SC 2114; and Anand Prasad Agarwalla (supra).
  5. In Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., AIR 1999 SC 3105, this court observed that the other considerations which ought to weigh with the Court hearing the application or petition for the grant of injunctions are as below :

(i) Extent of damages being an adequate remedy;

(ii) Protect the plaintiff’s interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor ;

(iii) The court while dealing with the matter ought not to ignore the factum of strength of one party’s case being stronger than the others;

(iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case- the relief being kept flexible;

(v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties’ case;

(vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant;

(vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.”

  1. In Dalpat Kumar & Anr. Vs. Prahlad Singh & Ors., AIR 1993 SC 276, the Supreme Court explained the scope of aforesaid material circumstances, but observed as under:-

“The phrases `prima facie case’, `balance of convenience’ and ` irreparable loss’ are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man’s ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts rest eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience.”

  1. This Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hira Lal, AIR 1962 SC 527 held that the civil court has a power to grant interim injunction in exercise of its inherent jurisdiction even if the case does not fall within the ambit of provisions of Order 39 Code of Civil Procedure.
  2. In Deoraj vs. State of Maharashtra & Ors. AIR2004 SC 1975, this Court considered a case where the courts below had refused the grant of interim relief. While dealing with the appeal, the Court observed that ordinarily in exercise of its jurisdiction under Art.136 of the Constitution, this Court does not interfere with the orders of interim nature passed by the High Court. However, this rule of discretion followed in practice is by way of just self-imposed restriction. An irreparable injury which forcibly tilts the balance in favour of the applicant, may persuade the Court even to grant an interim relief though it may amount to granting the final relief itself. The Court held as under:-

“The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice.”

  1. Such a course is permissible when the case of the applicant is based on his fundamental rights guaranteed by the Constitution of India. (vide All India Anna Dravida Munnetra Kazhagam vs. Chief Secretary, Govt. of Tamil Nadu & Ors. (2009) 5 SCC 452)
  2. In Bombay Dyeing & Manufacturing Co. Ltd. Vs. Bombay Environmental Action Group & Ors. (2005) 5 SCC 61, this Court observed as under:-

“The courts, however, have to strike a balance between two extreme positions viz. whether the writ petition would itself become infructuous if interim order is refused, on the one hand, and the enormity of losses and hardships which may be suffered by others if an interim order is granted, particularly having regard to the fact that in such an event, the losses sustained by the affected parties thereby may not be possible to be redeemed.”

  1. Thus, the law on the issue emerges to the effect that interim injunction should be granted by the Court after considering all the pros and cons of the case in a given set of facts involved therein on the risk and responsibility of the party or, in case he looses the case, he cannot take any advantage of the same. The order can be passed on settled principles taking into account the three basic grounds i.e. prima facie case, balance of convenience and irreparable loss. The delay in approaching the Court is of course a good ground for refusal of interim relief, but in exceptional circumstances, where the case of a party is based on fundamental rights guaranteed under the Constitution and there is an apprehension that suit property may be developed in a manner that it acquires irretrievable situation, the Court may grant relief even at a belated stage provided the court is satisfied that the applicant has not been negligent in pursuing the case.
  2. Anything done in undue haste can also be termed as arbitrary and cannot be condoned in law.(Vide Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd. V. Devendra Kumar Jain & Ors.(1995) 1 SCC 638; and Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia & Ors. AIR 2004 SC 1159).
  3. If the instant case is considered, in the light of the above settled legal propositions and admittedly the whole case of the appellant is based on violation of Article 14 of the Constitution as according to the appellant it has been a case of violation of equality clause enshrined in Article 14, the facts mentioned hereinabove clearly establish that the Corporation and the Government proceeded in haste while considering the application of respondent No.4 which tantamount to arbitrariness, thus violative of the mandate of Article 14 of the Constitution. Application of the appellant was required to be disposed of by a speaking and reasoned order. Admittedly, no reason was assigned for rejecting the same. There is nothing on record to show as on what date and under what circumstances, Plot nos.F-16 and F-17 stood decarved and became part of the Open Space No.9. The respondents could not furnish any explanation as in what manner and under what circumstances, the Bharat Sanchar Nigam Ltd. has been made allotment of land from plot no.F-16, (a part of Open Space No.9), without change of user of the land. The respondent no.4 had not initially asked for 17 acres of land which has been allotted to it. There is nothing on record to show as to why the land could not be disposed of by auction. All these circumstances provide for basis to form a tentative opinion that State and its instrumentalities have acted affectionately in the case of respondent no.4.
  4. Undoubtedly, there has been a delay on the part of the appellant in approaching the court but we cannot be oblivious of the fact that the appellant had been approaching the authorities time and again for allotment of the land. Admittedly, the entire land had not been developed by the respondent no.4 till this Court entertained the Special Leave Petition and directed the parties to maintain status quo with regard to the land measuring 2 acres adjacent to the appellant’s plot no.F-15 vide order dated 21.7.2008. Therefore, it is not only the appellant who is to be blamed for the delay. The land had been allotted to the respondent no.4 in undue haste and no development could take place therein for more than two years of taking the possession of the land. In such a fact-situation the submission made on behalf of the respondents that interim stay cannot be granted at a belated stage in preposterous.
  5. In view of above, we are of the considered opinion that the appeal deserves to be allowed and is hereby allowed. In the facts and circumstances of the case, the interim order passed by this Court on 21.7.2008 shall continue in operation till the writ petition is decided by the High Court. The Hon’ble High Court is requested to dispose of the writ petition expeditiously. Needless to say that any observation made herein either on facts or on law shall not adversely effect the case of either of the parties, for the reason that the only question before this Court has been as to whether the appellant deserves to be granted interim protection till his writ petition is decided by the High Court.

The appeal stands disposed of accordingly. No costs.

…………………………………..J.

(ALTAMAS KABIR) …………………………………J.

(Dr. B.S. CHAUHAN) New Delhi, September 11, 2009

 

The scope of Order 41 Rule 27 CPC is very clear to the effect that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, unless they have shown that in spite of due diligence, they could not produce such documents and such documents are required to enable the court to pronounce proper judgment.

——————————————————————————————————–

IN THE HIGH COURT OF JUDICATURE AT MADRAS 

DATED : 04.07.2011

CORAM

The Honourable Mr. Justice ELIPE DHARMA RAO
and
The Honourable Mr. Justice M. VENUGOPAL

C.M.A.No.764 of 2009


Nalini Muthu     ..  Appellant 

      vs.

Muthu       ..  Respondent 

      
PRAYER: Appeal filed under Section 19 of the Family Courts Act, 1984 praying for the relief stated therein.

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  For appellant : Mr.J.Bijai Sundar
  For respondent  : Mr.Sureshkumar for 
      M/s.Kanna Associates.
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J U D G M E N T
(Judgment of the Court was delivered by M. VENUGOPAL,J.) The Appellant/Respondent [Wife] has filed the present civil miscellaneous appeal as against the order dated 28.1.2009 in O.P.No.1601 of 2004 passed by the I Additional Principal Judge, Family Court, Chennai.
2.The Respondent/Petitioner [Husband] has filed O.P.No.1601 of 2004 before the trial Court under Section 13(1)(ia) and Section 25 of the Hindu Marriage Act, 1955 praying for the dissolution of marriage between him and the Appellant/Wife solemnized on 20.4.1989 at Tirupur. According to the Respondent/Husband, his marriage with the Appellant/Wife took place on 20.4.1989 at Tirupur, according to the Hindu Rites and Customs. Thereafter, they lived as Husband and Wife at New No.84, Old No.87, 5th Street, Padmanabha Nagar, Adyar, Chennai, till April 2003. As a result of the wedlock, two daughters, viz., Mookambika and Sridevi, were born on 25.1.1990 and 4.6.1993 respectively.
3.It is the case of the Respondent/Husband that the Appellant/Wife was behaving very indifferently right from the first day of their marriage and had refused even to attend the daily chores, viz., cooking and cleaning the house, etc.
4.It is the plea of the Respondent/Husband that even after the birth of two children, the Appellant/Wife behaved irresponsibly by leaving to her father’s house without any information to him and refused to return to the matrimonial home for many months. Also, the Appellant/Wife often demanded money and jewels from the Respondent/Husband and had also compelled him to give exorbitant amounts to her father, without any rhyme or reason. Furthermore, the Respondent/Husband, from the date of their marriage, on many occasions, was forced to take his food outside for months together, since the Appellant/Wife refused to cook for him, which had put the Respondent/Husband to ill-health.
5.The further stand of the Respondent/Husband is that he is the Managing Director of his Company, where both male and female staff are employed. As a Managing Director, he used to interact with his staff, including female staff and the Appellant/Wife started suspecting him imagining that he would have had illicit relationship with his female staff and this attitude of the Appellant/wife in suspecting him started from the first day of the marriage. The Appellant/Wife always called upon his office and enquired with his staff about him. That apart, the Appellant/Wife had gone to the extent of suspecting her own sister, whenever she talked to the Respondent/Husband, which showed the psychic attitude of her. She also engaged detective agents to spy and monitor his day-to-day activities, which caused mental agony and distress to him and his privacy was unnecessarily disturbed due to her cheap attitude which resulted in filing of the H.M.O.P.No.1601 of 2004.
6.Conversely, the Appellant/Wife had denied the allegations made against her by the Respondent/Husband, in her counter. She had specifically stated that soon after their marriage, they shifted to Chennai and their first matrimonial home was a rented premises at Nandanam. While so, she was called for an interview for the selection of posting in S.B.I. and she was very eager to seek some employment to share the burden in view of the the then prevailing family circumstances of the matrimonial home. But the Respondent/Husband thwarted the same by stating that he would not allow his wife to work anywhere. Later, the matrimonial home was shifted to another rented house at Seethammal Colony, Teynampet. During their matrimonial homes at Nandanam and Seethammal Colony, there was a gradual improvement in their economic status by the work of the Respondent/Husband, but coupled with the participation of the Appellant/Wife, by pledging her jewels, etc.
7. Furthermore, the case of the Appellant/Wife is that during 1997, the Respondent/Husband had an extra marital relationship with a girl, who was working in his workplace and he continued the said relationship even after that girl’s marriage. The Respondent/Husband showed his anger by giving all sorts of mental agony and assaulted the Appellant/Wife. At one point of time, the Respondent/Husband drove away his parents for questioning his attitude. When the same became unbearable, the Appellant/Wife filed a complaint with All Women Police Station, Adyar and the Respondent/Husband was called for an enquiry. Thereafter, the Respondent/Husband turned again a family person by showing all his love and affection, which resulted in withdrawal of the police complaint. Subsequently, the Respondent/Husband helped the Appellant/Wife in starting a Beauty Parlour in the name and style of ‘Rapid Beauty Parlour’ by investing few thousands of rupees in the first floor of their house. But, at the instance of the Respondent/Husband, the said Parlour was closed after a year.
8. As per version of the Appellant/Wife that except for few months, no Cook was employed since their marriage and it is only she, who was Cooking for all along. The Respondent/Husband was taking his food in the house even few months before filing the petition. But, there was a change in his attitude and he, on his own, was refraining from taking food in the house.
9. The Respondent/Husband was indulging in another extra marital affair since 2003, which fact was known to everybody in his office and same resulted in his change of behaviour and attitude. This was one of the prime reasons for him in refusing to take food in the house. The Respondent/Husband was interacting with his daughters every day without any hindrance from her and therefore, the allegation that she prevented him from meeting the daughters was a false one.
10. The Respondent/Husband was continuing his illicit intimacy with another office staff. As the other Directors of the Company objected strongly and informed the Respondent/Husband that his illicit intimacy would spoil the reputation of the Company, he just created uncongenial atmosphere in the Office during January 2004 and other Directors dismissed the said staff from the job. The Respondent/Husband’s father came to know about this affair and he advised his son to sever connection with that woman and he directly informed the girl’s parents that the girl should not indulge in such activities. But, the Appellant/Wife, with an intention not to further precipitate the matter, after receipt of her husband’s lawyer’s notice dated 12.5.2004, sent a letter dated 22.5.2004 to the Respondent/Husband praying to live together at least in the interest and welfare of their daughters. Since there was no reply for the same, she sent a reply dated 16.6.2004 rejecting the demand of mutual divorce.
11. During trial, the Respondent/Husband examined himself as P.W.1, and Ex.P.1 Marriage Invitation was marked on his behalf. On the other hand, the Appellant/Wife examined herself as R.W.1 and Ex.R.1 was marked on her side. In M.P.No.3 of 2009 filed in the above Civil Miscellaneous Appeal, this Court, by order dated 11.11.2010, permitted the Appellant/Wife to file additional documents, which are marked as Exs.R.2 and R.3.
12. The trial court, on appreciation of the oral and documentary evidence let in by the parties, and after scrutinising the entire oral and documentary evidence on record, had come to a resultant conclusion that the parties were living separately from the year 2003 and that the Respondent/Husband had stated that he was put to mental cruelty in the hands of the Appellant/Wife and therefore, it was not possible for them to live together and held that the Respondent/Husband had proved that the Appellant/Wife had caused him mental and physical cruelty by her arrogant attitude and also by suspecting him and refused to provide him even food in the house. Also, the trial Court had come to the conclusion that though the parties were living in the same house, the Appellant/Wife refused the Respondent/Husband his conjugal rights and also prevented him from seeing his own daughters and thereby caused him mental cruelty.
13. In short, the trial Court had opined that there was no substantial evidence on the side of the Appellant/Wife to prove the allegations made against the Respondent/Husband and accordingly granted the relief of Decree of Divorce as prayed for by the Respondent/Husband.
14. The learned counsel for the Appellant/Wife urges before this Court that the trial Court had committed an error in shifting the burden of proof on the Appellant/Wife to prove her case. However, it is the submission of the learned counsel for the Appellant/Wife that the person, who wants a relief from a Court of law, had to prove his case to the hilt, but, this was not taken into consideration by the trial Court.
15. According to the learned counsel for the Appellant/Wife, the trial Court relied upon the evidence of the Respondent/Husband as P.W.1 and except the ipsi dixit of evidence, there was no other evidence to corroborate his version of the case.
16. It is the case of the Appellant/Wife that there was no misunderstanding between them, but the learned Judge held that there was misunderstanding from the very date of marriage, which is not correct on the basis of available materials on record.
17. The Learned counsel for the Appellant/Wife by pointing out to the effect that the Respondent/Husband had sworn to the effect that his monthly income is only Rs.2,500/- and in evidence, he had admitted before the trial Court that even before his marriage, his income was Rs.2,500/- and later on also his income exceeded more than Rs.2,500/- per month and in view of the evidence tendered by the Respondent/Husband, he had committed perjury of Court, and therefore, his evidence could not be relied upon by this Court.
18. The Learned counsel for the Appellant/Wife brings to the notice of this Court that Ex.R.2 reply issued by her to the legal notice issued by the Respondent/Husband shows that the wife was interested only to live with her Husband and in the said reply, she had only prayed for the past acts to be condoned in the interest of the children’s welfare. The Learned counsel for the Appellant/Wife placed reliance on a decision of the Supreme Court in Dr.N.G.Dastane vs. Mrs.S.Dastane reported in AIR 1975 SC 1534 wherein it is held as follows:-
“Doubtless, the burden must lie on the petitioner to establish his or her case for, ordinarily, the burden lies on the party which affirms a fact, not on the party which denies it. This principle accords with commonsense as it is so much easier to prove a positive than a negative. The petitioner must therefore prove that the respondent has treated him with cruelty within the meaning of Section 10(1) (b) of the Act.”
19. The next decision relied upon by the learned Counsel is one in 95 CWN 806 [Annapurna Ganguly v. Dipak Kumar Ganguly], wherein in paragraph No.7, among other things, it is inter alia observed as under:-
“… It is her evidence that “I also saw that after coming from office petitioner would go to Mandira with packets of sweets and stay there up to 2 night.” Annapurna suspected that Mandira’s husband Hemanta would allow Dipak to stay in his room because they could avail the railway passes obtained by Dipak. This suspicion by the wife about the character of the husband would undoubtedly amount to cruelty provided it is shown that the said conduct is likely to harm or injure the health, reputation, working career or the like of the other spouse. The threat by the wife to her husband that she will put an end to her own life or that she will set the house on fire, the threat that she will make him lose his job and have the matter published in newspapers and the persistent abuses and insults hurled at the husband and his parents are all of so grave an order as to imperil the husband’s sense of personal safety, mental happiness, job satisfaction and reputation are important considerations in determining whether the conduct of the respondent amounts to cruelty {see Dastane v. Dastane (supra)] In Krishna Sarbadhikari’s case (supra) similar observations were made by Their Lordships. We have so far discussed the circumstances which amount to “cruelty’ and those which do not and now we proceed to scrutinise the evidence adduced by the parties at the trial and to see how far and to what extent the petitioner Dipak, on whom lies the burden of proof, has been successful in making out the case of cruelty as one of the grounds justifying the decree of divorce.”
Further, in paragraph 10 of the said judgment, it is held as under:-
“…In the present case taking an overall picture of the conduct of the appellant wife and in the absence of any evidence that the suspicious conduct of the wife was such as to cause extreme mental distress to the husband or it was so grave an order as to imperial the husband’s sense of personal safety, mental happiness, job satisfaction and reputation”, we hold that the said conduct of the respondent did not amount to legal cruelty so as to justify a decree of divorce.”
In paragraph 14 of the said judgment, it is laid down as follows:-
“14.Divorce is not accure for the matrimonial unhappiness and may result in loneliness, despair and hardship more to the child who is 14 years of age. Dipak’s parents are dead. His two other brothers have already been married. Mandira, who incurred the displeasure of the wife, has shifted to her newly-built house. The size of the joint family has thus been reduced considerably. Dipak is 54 and Annapurna 52. It is not possible for them to start a new life at this age. Is the reconciliation still an impossibility? The marriage does not deserve dissolution and the petition of divorce is liable to be dismissed.”
20. The Learned counsel for the Appellant/Wife seeks in aid of the decision of the Hon’ble Supreme Court in S.Hanumantha Rao v. S.Ramani reported in [1999] 3 SCC 620, wherein it is held that hypersensitivity and panic reaction of complainant-spouse cannot be used to cast blame and make out a case of mental cruelty and further that wife’s parents seeking help of Women’s Protection Cell in bringing about reconciliation between estranged spouses and when there is no evidence of harassment by the Cell, the representation made by the wife’s parents to Women’s Protection Cell did not amount to mental cruelty.
21. The Learned counsel for the Appellant/Wife invites the attention of this Court to the decision in Shyam Lata vs. Suresh Kumar reported in AIR 1986 Punjab and Haryana 383, wherein it is held that on wife’s complaint, proceedings under Sections 107 and 151 initiated against the husband and his relatives and the proceedings dropped subsequently for want of prosecution, the institution of the said proceedings does not amount to cruelty justifying grant of divorce.
22. The learned counsel for the Appellant/Wife relies on the decision in Smt.Archana Mahajan vs. Vinod Mahajan reported in AIR 1998 Madhya Pradesh 220, wherein in paragraph No.21, 31, 32, 34 and 35, it is observed as follows:-
“21.In his evidence, he stated that once on account of the complaint made by Archana, he was transferred thrice in a year. He also stated that Archana had made allegations against him in Exs.P.4 and P.5 that he had illicit relations with Kirti Saxena, and had alleged that he wanted to marry that Kirti Saxena.
31.”Jealousy thy name is woman”. It may be a normal phenomenon in the married life of any persons. Does it amount to making the allegations against the husband charging him of unchastity? Does it amount to making the allegation against him of unchastity? No, unless it is baseless, malignant and disgusting. While assessing the evidence in respect of such averments, the Court has to be cautions about it because by such allegations and loose statements, some other person is likely to be maligned so far as his or her character is concerned. In the present case much has been said about Kirti Saxena without giving her opportunity of putting her say. Such allegations would be damaging her in her character, reputation and mind also. It was totally improper for the learned Judge to grant divorce in favour of respondent Vinod Mahajan and against the appellant on such documents Ex.P.4 and P.5 without making Kirti Saxena a party to proceedings. That may amount to a stigma to said Kirti Saxena who had no opportunity of defending herself from such allegations. When such allegations are made in the matrimonial petition such person must be impleaded as party and has to be awarded opportunity of putting his or her case. Reckless statements made against such person without impleading him or her in the matrimonial petition cannot be said to be proper and legal.
32. “Cruelty” is a relative tem. It varies from person to person, and case to case. The allegations and conduct does not amount to cruelty in every case. It depends on the status of spouses, atmosphere in which they live. That has to be understood by seeing neatly the back ground behind it and effect which is likely to be caused by such allegations and conduct.
34.The appellant and respondent are having two children a daughter and a son. Learned trial Judge should have also considered that. On such flimsy ground a decree of divorce cannot be granted putting future of such children to jeopardy. By such decree of divorce their future would be maligned and that would also be a stigma in their entire future life. That would shatter their minds also.
35.Thus, I have no hesitation in coming to the conclusion that decree of divorce dissolving marriage between the appellant and respondent is not correct, proper and legal; that has to be set aside.”
23. Yet another decision relied on by the learned counsel for the Appellant/Wife is in Devram Bilve vs. Indumati reported in [2000] 10 SCC 540, wherein the Hon’ble Supreme Court has held as follows:-
“The letters on the basis of which cruelty was sought to be established have not even been referred to by the Division Bench nor do they seem to have been analysed by the Single Judge. Both the courts did not appear to have gone into this aspect in great detail because they decided the appeal in favour of the respondent on the ground that the parties had lived together at Sagar Hotel at Indore and that amounted to an act of condonation. We have some doubt, on the basis of the evidence on record or the lack of it, whether this conclusion is correct and, therefore, it was important for the Single Judge as well as the Division Bench to have examined the evidence on record in order to determine whether the appellant herein had been able to prove that the respondent had committed such acts of cruelty which would entitle the appellant to get a decree of divorce.
24. The other decision relied on the by the learned Counsel is Premendra Gupta vs. Sunita Gupta reported in {2001} 2 MLJ 397, wherein it is observed as follows:-
A perusal of the evidence establishing that the conduct of the respondent never inflicted upon the appellant any such mental pain and suffering as would make it not possible for the appellant to live with the respondent. The respondent appears to have never uttered any such words so as to injure the feelings of the appellant and the activities of the respondent were also not of such nature that the appellant cannot reasonably be expected to live with the respondent.”
25. Apart from the above, it is the contention of the learned counsel for the Appellant/Wife that the Respondent/Husband even after getting the Decree of Divorce from the trial Court, had shown the name of his wife in the Medical Claim Policy taken by him and this shows that the Respondent/Husband is only interested in her and not seeking the relief of divorce.
26. Repelling the submission of the learned counsel for the Appellant/Wife, the learned counsel for the Respondent/Husband submits that from the year 1999, the Appellant/Wife and the Respondent/Husband were separated and they are living apart and the policy taken in the name of the Appellant/Wife is renewed periodically and it is only a continuing policy and therefore, the mere mention of the name of the Appellant/wife in the Medical Claim Policy taken by the Respondent/Husband will not in any way improve the case of the Appellant/Wife, when he had levelled the allegation of cruelty by the Appellant/Wife that he was having extra marital affair with a lady in his office, etc.
27. The Learned counsel for the Respondent/Husband contends that the Respondent/Husband is the Managing Director of a Company wherein 300 persons are employed and even when the Respondent/Husband had interacted with his staff muchless female staff, the Appellant/Wife used to suspect the Respondent/Husband and also enquired about him by giving phone call to the Office and also keeping him under surveillance. These acts unerringly point out that they come within the ambit and purview of the term ‘cruelty’ and because of the false allegations made against the Respondent/Husband by the Appellant/Wife, the Respondent/Husband was perforced to spend many sleepless nights and days.
28. It is to be noted that the concept of cruelty has been described in Halsbury’s Laws of England {Vol. 13, 4th Edition, para 1269} as under:-
The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant’s capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exists.
29. We deem it appropriate to recall the term “mental cruelty” from 24 American Jurisprudence 2d, wherein it is mentioned as below:-
Mental cruelty as a course of unprovoked conduct toward one’s spouse which causes embarrassment, humiliation, and anguish so as to render the spouse’s life miserable and unendurable. The plaintiff must show a course of conduct on the part of the defendant which so endangers the physical or mental health of the plaintiff as to render continued cohabitation unsafe or improper, although the plaintiff need not establish actual instances of physical abuse.
30. We aptly point out the Supreme Court decision in Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan reported in {1981} 4 SCC 250 wherein it is held as under:-
“… The concept of legal cruelty changes according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions, this feature has obtained legislative recognition, that a second marriage is a sufficient ground for separate residence and maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which lead to mental or legal cruelty.”
31. To constitute cruelty, the conduct of complaint must be a “grave and weighty one” so as to come to the conclusion that once spouse cannot reasonably be expected to live with the other spouse. The term ‘cruelty’ to be something more than serious than an ordinary wear and tear of marital life. The mental cruelty may consider all verbal abuses and insults by using filthy and abusive language in leading to persistent disturbance of mental peace of the other individual. Admittedly, “mental cruelty” is a problem of human behaviour.
32. In Simpson v. Simpson reported in 1951 P 320, the Court has opined as follows:-
When the legal conception of cruelty is described as being conduct of such a character as to cause danger to life, limb or health, bodily or mental, or to give rise to a reasonable apprehension of such danger, it is vital to bear in mind that it comprises two distinct elements: first, the ill-treatment complained of, and, secondly, the resultant danger or the apprehension thereof. Thus, it is inaccurate, and liable to lead to confusion, if the word cruelty is used as descriptive only of the conduct complained of, apart from its effect on the victim.”
33. In cases of cruelty or mental cruelty, it is not necessary that there should be any physical violence or physical injury being caused to a person by another person. Even a mental or moral cruelty is recognized by the courts of law. Numerous acts of purported cruelty, physical or mental cruelty must not be taken separately. Several acts considered separately in isolation may be small and not hurtful, but when considered in a cumulative fashion, they might come well within the purview of cruelty. Interestingly, in an American case in Jem v. Jem 33 reported in [1937] 34 Haw 312, the Honourable Supreme Court of Hawii aptly mentioned that cruel treatment not amounting to physical cruelty is mental cruelty.
34. In Rosenbaum v. Rosenbaum reported in [1976] 38 111 App 3d 1, the Appellate Court of Illinois held as under:-
To prove a case entitling a spouse to divorce on the ground of mental cruelty, the evidence must show that the conduct of the offending spouse is unprovoked and constitutes a course of abusive and humiliating treatment that actually affects the physical or mental health of the other spouse, making the life of the complaining spouse miserable, or endangering his or her life, person or health.
35. The concept of mental cruelty cannot remain static. There can never be any fixed parameter for mental cruelty in matrimonial cases. However, the Honb’ble Supreme Court in the decision inSamar Ghosh v. Jaya Ghosh reported in [2007] 4 SCC 511, at paragraph No.101, has enumerated certain instances of human behaviour, which may be relevant in dealing with the case of mental cruelty. The relevant paragraph is extracted as under:-
“101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of mental cruelty . The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”
36. In Manisha Tyagi v. Deepak Kumar reported in I [2010] DMC 451 (SC), the Honourable Supreme Court, in paragraph Nos.24 and 25, has held as under:-
“24. This is no longer the required standard. Now it would be sufficient to show that the conduct of one of the spouses is so abnormal and below the accepted norm that the other spouse could not reasonably be expected to put up with it. The conduct is no longer required to be so atrociously abominable which would cause a reasonable apprehension that it would be harmful or injurious to continue the cohabitation with the other spouse. Therefore to establish cruelty it is not necessary that physical violence should be used. However, continued ill-treatment, cessation of marital intercourse, studied neglect, indifference of one spouse to the other may lead to an inference of cruelty. However, in this case even with aforesaid standard both the trial court and the appellate court had accepted that the conduct of the wife did not amount to cruelty of such a nature to enable the husband to obtain a decree of divorce.”
“25. We may notice here the observations made by this Court in Shobha Rani v. Madhukar Reddi, I (1988) DMC 12 (SC) = (1988) 1 SCC 105 wherein the concept of cruelty has been stated as under:
The word cruelty has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i-a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment.
37.The mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. While ariving at a conclusion as regards ‘cruelty’ the social status, educational level of the parties, society thy move in, the possibility or otherwise of parties ever living together in case they are living separately are to be taken into account by the Court concerned.
38.The burden of proving adultery under the Hindu Marriage Act is of a civil nature by means of preponderance of probabilities and not by way of proving it beyond reasonable doubt as per decision of the Honourable Supreme Court Dastane v. Dastane, AIR 1975 SC 1534.
39.The general evidence of ill repute of the husband or of the lewd company that he keeps or even that he knows the addresses of prostitutes and was seen with doubtful women would neither prove nor probabilise adultery as per decision Dan Henderson v. D. Henderson, AIR 1970 Madras 104 (Division Bench).
40. As far as the present case is concerned, the Respondent/Husband is admittedly the Managing Director of his Company where 300 persons are employed in different age groups, including males and females. The Respondent/Husband had stated that the Appellant/Wife whenever he talked with his staff, especially with the female staff, then the Appellant/Wife suspected that he is having extra marital affair with his staff. The Appellant/Wife had specifically stated that the Respondent/Husband had an extra marital relationship during the year 1997 with another girl who was working in his work place and even after that girl’s marriage, he continued the same and therefore, the Respondent/Husband assaulted her. Also, the Appellant/Wife had stated that the Respondent/Husband was indulging in another extra marital affair since September, 2003.
41. In the instant case, the Appellant/Wife had made allegations against the Respondent/Husband that he was having an extra marital relationship with a girl in his office during 1997 and again had another extra marital affair since September, 2003. It is the well accepted principle of law that when a person makes an allegation in respect of a particular averment, then the burden of proving the said allegation lies on him or her. In the case on hand, the Appellant/Wife even though had levelled serious allegations against the Respondent/Husband, that he was having an affair with a girl in his work place during 1997 and later indulged in another extra marital affair since September, 2003 were not proved to the subjective satisfaction of the Court. These allegations when not proved by the person who made the same, naturally, it constitutes cruelty resulting in mental agony and loss of peace of mind to the other spouse. By making these kind of allegations mentioned supra and later not proving the same against the Respondent/Husband by the Appellant/Wife, in our considered view, had caused mental hardship and cruelty to the Respondent/Husband.
42. It cannot be gainsaid that in the cross-examination of P.W.1 {Respondent/Husband}, the Appellant/Wife had suggested that her husband had illicit relationship with a lady by name Misha. Also, the Appellant/Wife though had come out with a stand that her father-in-law and mother-in-law had advised the Respondent/Husband to change his attitude in regard to his extra marital affair, surprisingly, except herself being examined as R.W.1, none had appeared as a witness on her behalf and in short, we are of the considered view that because of the allegations made by the Appellant/Wife against the Respondent/Husband that he was having extra marital affair with his staff, etc., the relationship between them had strained considerably and it has reached the stage of point of no return. In short, the marriage between the Appellant/Wife and the Respondent/Husband had irretrievably broken down and it is beyond repair. A marriage being dead practically and emotionally, the continuance of the same will procastinate the mental agony and affliction and it is cruelty. Therefore, on the basis of available materials on record, and on perusal of the entire oral and documentary evidence, we come to an inevitable conclusion that the Respondent/Husband had established before the trial Court that the Appellant/wife had caused mental cruelty to him and accordingly, he had established the same before the trial Court, which rightly granted the decree of Dissolution of Marriage that took place between the parties on 20.4.1989 at Tiruppur. Suffice it to point out that the said order of the trial court in allowing O.P.No.1602 of 2004 filed by the Respondent/Husband against the Appellant/Wife by means of an order dated 28.1.2009 does not suffer from any serious material irregularity or patent illegality. Consequently, the Civil Miscellaneous Appeal is devoid of merits.
43. In the result, the Civil Miscellaneous Appeal is dismissed leaving the parties to bear their own costs. The order dated 28.1.2009 in O.P.No.1601 of 2004 passed by the I Additional Principal Judge, Family Court, Chennai, is confirmed, for the reasons assigned in the Civil Miscellaneous Appeal. Consequently, M.P.Nos.1 and 2 of 2009 are closed.
44. So far as M.P.No.1 of 2011 seeking to file additional documents, under Order XLI, Rule 27 CPC, which are the LIC, Medical Claim Policies and Hospitalisation of Benefit Policy (9 in numbers) dated 14.10.200, 12,12.2000, 08.01.2001, 28.03.2005, 28.03.2005, 03.04.2009, 03.04.2009, and 30.03.2009respectively and M.P.No.1 of 2011 seeking to permit the Appellant/Wife to examine one T.C.Paramasivam, her father-in-law as R.W.2 as additional witness, under Order XLI, Rule 27(1)(b) CPC, we are of the considered opinion that the Petitioner/Appellant {wife} had not made out a sufficient or good cause enabling this Court to allow these petitions and there are no tangible explanations put forward on the side of the petitioner/Appellant to show as to why these documents were not filed by her earlier during trial in the Original Petition before the trial Court. Only for securing the ends of justice, the petition to receive the additional documents are to be accepted by this Court. The Appellant/Wife cannot claim as a matter of right to produce any document or examine any witness before the Appellate Authority. The discretion to receive any evidence documentary or oral rests with the Appellate Authority as per decision of the Honourable Supreme Court Basayya I. Mathad v. Rudrayya S. Mathad and Others, 2008 (3) SCC 120. However, it is to be borne in mind that the petition to receive additional documents cannot be projected either to fill up the gap in evidence tendered before the trial court by the respective parties or to fill up the weakness of one’s case. It is held in N.Kamalam (Dead) and another v. Ayyasamy and another, (2001) 7 Supreme Court Cases 503 that oral evidence after a long time gap, the High Court must be cautious about allowing applications seeking to adduce of additional evidence particularly in the form of oral evidence after along interval between the decree and the application As a matter of fact, the ingredients of Order 41 Rule 27 of CPC have not been enumerated in Civil Procedure Code so as to patch up the weak points in the case and to fill up the omission in the Court of Appeal. Indeed, the power under Order 41 Rule 27 of CPC are to be exercised sparingly and with care circumspection. Even in regard to the permission being sought for on the side of he Appellant/Wife to examine her father-in-law as R.W.2 in M.P.No.1 of 2011, we are of the considered view that though the Appellant/Wife before the trial Court had stated that her father-in-law had known about the Respondent/Husband’s conduct pertaining to his extra marital affair with ladies, etc. when ample opportunities were available to her in the trial Court why that was not utilised or availed of by her in examining her father-in-law was not satisfactorily explained before this Court.
45. At this stage, we deem it appropriate to recall the decision M.Harinarayana @ Haribabu V. Smt.P.Swaroopa Rani 2008 (6) ALT 378 (D.B.) at page 380 wherein it is held as follows:
Under Order 41, Rule 27 CPC a party is permitted to adduce additional evidence only if he establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against him was passed.
27. In the instant case, as rightly pointed out by the learned counsel appearing for the appellant that the certificate was said to be issued by the District Treasury Office on 16.12.2005, whereas it was well within the knowledge of respondent that the date of execution mentioned in Ex.A-15 was not correct. Such being the situation, the respondent could have adduced the proposed additional evidence in the trial Court itself but failed to do so. There is no proper explanation from the respondent by which cause he was prevented from adducing the said evidence before the trial Court. As such, the respondent failed to establish that notwithstanding the exercise of due diligence, he could not be able to adduce the proposed additional evidence before the trial Court. Under these circumstances, the proposed additional evidence cannot be admitted in this appeal and the A.S.M.P.No.1142 of 2006 filed by the respondent to receive the certificates issued by the District Treasury Office as additional evidence is hereby dismissed.
46. We also aptly point out the decision of the Hon’ble Supreme Court in Hindustan Brown Boverl, Ltd., V. Their Workmen and another 1968 (1) L.L.J. 571 at page 575 & 576 whereby and whereunder, it is, among other things, observed as follows:
Now, the principles on which the appellate Court permits additional evidence are well known. It is quite clear that this is not a case where the company can avail itself of any of these principles. There is no manner of doubt that the company was negligent in not producing the document. This is therefore, not a case where the company could not produce this additional evidence or was prevented from doing so, or that it has now discovered a fresh piece of evidence. In these circumstances, we would not be justified in granting at this late stage leave to produce additional evidence. In the absence of such evidence the company obviously must be held to have failed to establish delegation of power of dismissal to the works manager.
47. Further, in T.Paramasivam V. N.Babu and another (2008) 5 MLJ 68 at page 78 in paragraph 36, this Court has held as follows:
36. It is also clear that, even though the appellant had knowledge of the existence of the said documents, he has chosen not to mark them as documentary evidence before the trial Court as well as the first Appellate Court. Even though this Court has the power, under Order XLI Rule 27 of the Civil Procedure Code, 1908, to permit marking of documents at this stage in the interest of justice, this Court is of the considered view that such a necessity does not arise in the present case. The appellant has not been in a position to give a sufficient reason or an acceptable explanation as to why he could not mark the documents said to be in his favour at an earlier stage. When both the courts below, after carefully analysing the evidence on record, had found that the first defendant had sold the suit property to the plaintiff in the suit for a valid consideration, by executing a sale deed, dated 02.01.1993, marked as Ex.A-4, this Court does not find sufficient grounds to interfere with the said findings of the Courts below. The petition filed by the appellant in C.M.P.No.2225 of 2007 is belated and if the prayer therein is granted it would cause grave prejudice to the respondents. Therefore, the CMP stands dismissed.
48. In the decision of the Hon’ble Supreme Court Karnataka Board of Wakf V. Government of India and others (2004) 10 Supreme Court Cases 779 at page 781, the Hon’ble Supreme Court has laid down as follows:
The scope of Order 41 Rule 27 CPC is very clear to the effect that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, unless they have shown that in spite of due diligence, they could not produce such documents and such documents are required to enable the court to pronounce proper judgment.
49. In A.Ravishankar Shetty and Another V. Suresh Chadaga P.S. & Another AIR 2009 (NOC) 2374 (Kar.) it is, inter alia, observed that ‘… However, it is clear from the evidence of tenant that they had submitted the said document for securing loan from Bank to show that they are tenants of suit premises and for declaration of their hotel for business purpose’ and held that ‘it is clear that original lease deed which is now sought to be produced was very much with tenants and for reasons best known to them said document was not produced in the Court below and as such, the tenant cannot be allowed to produce additional documents.’
50. In RM. AR. AR. RM. AR. Ramanathan Chettiar V. VT. RM. K.Ramasami Chettiar (1980) 1 M.L.J. 178, this Court has held hereunder:
The provisions of Order 41, rule 27 Civil Procedure Code are not meant to enable either party to the suit to fill up the gaps in the evidence or to better their case, in the appellate Court when once they find that the evidence which they had chosen to let in the trial Court is found by the Appellate Court to be insufficient to justify their case.
51. In the decision of Hon’ble Supreme Court State of Gujarat and another V. Mahendrakumar Parshottambhai Desai (Dead) by Lrs. (2006) 9 Supreme Court Cases 772 at page 775 wherein at paragraph 10 and 11, it is laid down as follows:
10.We shall first deal with the appeals preferred against the judgment and order of the High Court rejecting Civil Application Nos. 964 and 1150 of 2002 filed by the appellants herein for adducing additional evidence under Order XLI Rule 27 of the Code of Civil Procedure. The documents sought to be produced were contained in Annexure I to the applications. The applications were opposed by the respondents. It was submitted on behalf of the appellants that the applications may be treated as one under Order XLI Rule 27(1)(b) of the Code of Civil Procedure, apparently because the other provisions or the rule did not apply to the facts and circumstances of the case. The High Court noticed that a similar Civil Application being No. 4849 of 2000 had been filed earlier when this appeal had been placed for hearing before another Division Bench of the High Court, but the said application was rejected by order dated June 22, 2000. The High Court further found that Rule 27(1)(b) of Order XLI can be invoked only if the Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. In the instant case it was not as if the additional evidence was required by the Court to enable it to pronounce judgment and, therefore, additional evidence was sought to be adduced for “substantial cause” since serious prejudice would be caused to the appellants if the additional evidence was not permitted to be adduced. Reliance was placed on the judgment of this Court in Municipal Corporation of Greater Bombay vs. Lala Pancham and others : AIR 1965 SC 1008 wherein this Court held that though the appellate Court has the power to allow a document to be produced and a witness to be examined under Order XLI Rule 27 CPC, the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision did not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in the case. It does not entitle the appellate court to let in fresh evidence only for purposes of pronouncement of judgment in a particular way. The High Court referred to the earlier proceedings before various authorities and came to the conclusion that though the appellants had sufficient opportunity to bring the evidence on record,, for reasons best known to it, the State did not produce the entire evidence before the trial court and it was only 8 years after the dismissal of the suit that the applications were filed for adducing additional evidence in the appeal. The High Court, therefore, dismissed the applications for adducing additional evidence.
11.We find no error in the approach of the High Court. We have earlier noticed the long history of litigation which preceded the filing of the suit. The documents sought to be brought on record are not documents which were discovered later or came into existence after the filing of the suit. The documents are part of the Government records and they could have been produced in the suit.
52. It is to be pointed out that as per Order XLI Rule 27 of the Code of Civil Procedure, it is the duty of the Petitioner/Appellant/ Wife to establish to the satisfaction of this Court as to why she had not projected the documents mentioned in M.P.No.1 of 2011 before the trial Court during the time of trial. It is the duty of the Appellant/Petitioner to set out a good case/sufficient cause for not filing the said documents and also to explain the circumstances which prevented her from not filing the aforesaid documents in a diligent fashion before the trial Court. But, in the present case, the Petitioner/Appellant has not made out a case in M.P.No.1 of 2011 to receive additional documents and also in M.P.No.1 of 2011 has not satisfactorily explained as to why she had not made use of the opportunity in examining her father in law as RW2 before the trial Court.
53. In that view of the matter, the Miscellaneous Petitions are dismissed to prevent an aberration of justice.
       (E.D.R.,J.)     (M.V.,J.)

 

the view that the impugned judgment of the High Court does not decide the issue in correct
prospective. The impugned order dated 11.9.2013 passed by the respondents
blacklisting the appellant without giving the appellant notice thereto, is
contrary to the principles of natural justice as it was not specifically
proposed and, therefore, there was no show cause notice given to this
effect before taking action of blacklisting against the appellant.

———————————————————————————————————————————————————————————————–

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLANT JURISDICTION
CIVIL APPEAL NOS. 7167-7168 OF 2014
[Arising out of Special Leave Petition (Civil) No. 38898-38899 of 2013)

GORKHA SECURITY SERVICES …..APPELLANT(S)
VERSUS

GOVT. OF NCT OF DELHI & ORS. …..RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.
Leave granted.
2) Present appeals raise an interesting question of law pertaining to
the form and content of show cause notice, that is required to be served,
before deciding as to whether the noticee is to be blacklisted or not. We
may point out at the outset that there is no quarrel between the parties on
the proposition that it is a mandatory requirement to give such a show
cause notice before black listing. It is also undisputed that in the
present case the show cause notice which was given for alleged failure on
the part of the appellant herein to commence/ execute the work that was
awarded to the appellant, did not specifically propose the action of
blacklisting the appellant firm. The question is as to whether it is a
mandatory requirement that there has to be a stipulation contained in the
show cause notice that action of blacklisting is proposed? If yes, is it
permissible to discern it from the reading of impugned show cause notice,
even when not specifically mentioned, that the appellant understood that it
was about the proposed action of blacklisting that could be taken against
him?
3) The factual narration, leading to the impugned action viz. of
blacklisting the appellant firm does not require much elaboration. Stating
the following events would serve the purpose of addressing the issue at
hand.
4) The appellant, which is a partnership firm, was awarded the contract
vide letter of award dated 1.9.2011 for providing security services in Shri
Dada Dev Matri Avum Shishu Chiktsalaya, Dabri, New Delhi (hereinafter
referred to as the ‘hospital). This hospital is under the administration of
Respondent No. 1 viz. Government of NCT of Delhi. The contract was for a
period of 1 year i.e. from 2.9.2011 to 1.9.2012. The payment was required
to be made contractually to the appellant on monthly basis. Though the
contract was upto 1.9.2012, the appellant continued to provide services
even thereafter. The case of the appellant is that it has not been given
any payment after the expiry of the contract period though it worked till
31.7.2013.
5) It appears that the respondents had issued a communication dated
4.8.2012, in continuation of their earlier letter dated 17.10.2011,
requiring the appellant to submit the valid EPF/ ESIC certificate, list of
persons deployed along with copies of their educational certificates,
police verification report, medical examination report etc. and to make the
payment of prescribed minimum wages to the workers through ECS or by cheque
and deposit the EPF/ESIC and service tax etc. This communication further
mentioned that inspite of the lapse of a long period the appellant had
failed to submit the requisite documents/ information and was not making
full payment of minimum prescribed wages to its workmen/ security guards
nor was providing the statutory benefits like EPF/ ESIC. Certain other
deficiencies in the performance of the contract were also alleged therein.
The appellant, in the first instance, sent the letter dated 7.8.2012 in
response to the aforesaid notice, stating that it had obtained the EPF and
ESIC numbers in respect of deployed security personnel and deposited their
contributions towards EPF & ESIC with the concerned authorities. Proof in
support of this was also furnished in the form of photocopies of
consolidated challans with the bills. The appellant specifically maintained
that it had made payment to the workers as per Minimum Wages Act.
6) Detailed reply to the notice dated 4.8.2012 was given by the
appellant on 17.8.2012 wherein photocopies of bio-data in respect of
deployed 32 security personnel alongwith police verification report as well
as list of security personnel along with their date of birth, educational
qualifications, addresses and EPF & ESIC numbers were given. Other issues
mentioned in notice dated 4.8.2012 were also addressed.
7) The respondent authorities, however, were not satisfied with the
reply which resulted in serving of the show cause notice dated 6.2.2013
upon the appellant detailing various lapses, which the appellant had
allegedly committed. Since the entire dispute revolves around the nature
of action that was stipulated therein and was proposed to be taken, we
would like to reproduce that part of the show cause notice in verbatim:
“And whereas, by the above act and omissions, the firm has not only failed
to provide minimum wages and extend the statutory benefits and abide by the
labour laws, but also failed to provide satisfactory services and failed to
submit the required information/ document, as and when called for and also
being pre-requisite under the tender terms and conditions, and have
rendered this hospital at the risk by deputing the less security personnels
that too without prior intimation of the credentials of the deployed staff
and police verification, as such liable to be levied the cost accordingly.
Therefore, you are directed to show case within 7 days of the
receipt of this notice, as to why the action as mentioned above may not be
taken against the firm, beside other actions as deemed fit by the competent
authority.
(emphasis supplied)”.

8) The appellant furnished detailed reply dated 25.4.2013 to the
aforesaid show cause notice taking the position that the appellant firm had
adhered to and complied with all the obligations contained in the contract
signed between the parties and it was the respondent who had defaulted in
making the payment to the appellant inspite of various reminders issued. It
was thus maintained that there was no violation of the terms and conditions
of the agreement on the part of the appellant and the respondents were
requested to withdraw the show cause notice and make the payment due to the
appellant within 15 days with interest at the rate of 18% from the date it
became payable.
9) On receipt of the aforesaid reply, respondents sent another
communication dated 30.5.2013 calling upon the appellant to submit certain
documents. This was adverted to by the appellant in the form of reply dated
8.6.2013 reiterating the position taken earlier viz. the appellants were
adhering to all the statutory obligations and submitting documents with the
department. The appellant again insisted that respondents who were not
releasing the payment and instead threatening the appellant to terminate
the contract.
10) First communication which was received, thereafter, by the appellant
was letter dated 30.7.2013 informing the appellant that the contract of the
appellant would stand terminated from 31.8.2013 (A.N.) and the appellant
was directed to wind up its work and hand over the charge to the in-charge
outsourcing for further arrangements. The appellant took exception to this
move on the part of the respondent vide its letter dated 31.7.2013 alleging
that the contract was sought to be terminated without assigning any valid
reasons which was unjustified, that too when no payment was made for the
services rendered by the appellant. By another letter dated 14.8.2013, the
appellant repeated its request for release of payment.
11) At this juncture impugned order dated 11.9.2013 was passed by the
respondents wherein the respondents maintained that the appellant had
violated the terms and conditions of the Contract Labour Laws and had also
not complied with certain other requirements stipulated in the agreement
between the parties. In view thereof, vide this order, various penalties
were imposed upon the appellant in the following form:-
(i) A penalty of Rs. 3000/- (Rupees Three Thousand only) under clause 27
(c) of the T&C, on account of public complaints.
(ii) A penalty of Rs. 41,826/- (Rupees Forty One Thousand Eight Hundred
Twenty Six only) under Clause 27 (c) (a) (i) on account of unsatisfactory
performance and not abiding by the statutory requirements.
(iii) A penalty of forfeiture of performance guarantees amounting to Rs.
3,70,000/- (Rupees Three Lac Seventy Thousand only) submitted at the
commencement of contract.
(iv) A penalty of blacklisting the firm M/s Gorkha Security for a period
of 4 years from the date of this order, from participating the tenders in
any of the department of Delhi Government/ Central Government/ Autonomous
Body under the Government.
(v) Since, the firm has made the payment of wages @ Rs. 4,000/- per month
per person which is less than the prescribed rates of minimum wages, and
submitted no proof of payment of wages, EPF and ESI etc. in spite of
opportunities given over the years, hence, it is ordered to release the
payment only @ Rs. 4,000/- per month per person plus applicable taxes after
deducting the penalty imposed at 1 & 2 above and withhold rest of the
payment of bills to the extent of amount over and above Rs. 4,000/- per
month per person, till the payment of full wages to the employees and
submissions of the proof of disbursing minimum prescribed wages and
depositing the EPF and ESI contributions in respect of each deployed
employees who have actually deployed and worked in this hospital duly
verified by the authorities concerned.

12) The appellant preferred an appeal dated 23.9.2013, against the
aforesaid order, to the Principal Secretary (H&FW). However, it did not
evoke any response from the Secretary and in these circumstances the
appellant approached the High Court of Delhi by filing the Writ Petition
under Article 226 of the Constitution of India, seeking quashing of the
orders dated 11.9.2013. The said order was assailed by the appellant
primarily on the following grounds:-
(i) The show-cause notice dated 6.2.2013 made no reference to the
proposed blacklisting of the appellant and, therefore, the appellant had no
opportunity to make a representation in this regard;
(ii) No opportunity of personal hearing was given to the appellant before
passing the impugned order; and
(iii) There was no ground for blacklisting the appellant since no term of
the agreement was breached by it.

13) The learned Single Judge of the High Court did not find any merit in
any of the aforesaid grounds and dismissed the writ petition by reason of
the judgment dated 25.10.2013. It was held that the State had the power to
blacklist a person, which was a necessary concomitant to the executive
power of the State to carry on the trade or the business and making of
contracts for any purpose, etc., as held in Patel Engineering Ltd. v. Union
of India; (2012) 11 SCC 257. In this judgment, the Supreme Court had also
taken the view that there is no inviolable rule that a personal hearing has
to be given to the affected party before taking a decision. Referring to
the terms and conditions of the contract, as contained in the NIT, which
form part of the agreement, and particularly Clause 27 (a) (ii), the Court
noticed that there was specific power reserved by the respondent to black
list the defaulting contractor for a period of 4 years. In view of that
power it held that the appellant was rightly blacklisted. In so far as
argument of the appellant that show cause notice did not specifically refer
to the proposed action of black listing, that plea was rejected in the
following terms:

“It would thus be seen that the contract between the parties specifically
empowered the respondents to blacklist the appellant firm. Therefore, when
the show cause notice received by the appellant expressly mentioned of such
action as may be deemed appropriate by the Competent Authority, the
appellant could easily visualize that the action proposed by the Competent
Authority could include blacklisting of the appellant-firm. Considering the
express terms of the contract between the parties, it was not necessary for
the respondent to specifically refer to the proposed blacklisting in the
show cause notice issued to the appellant. The purpose of show cause notice
is primarily to enable the noticee to meet the grounds on which an action
is proposed against it and such grounds were fully detailed in the show
cause notice issued to the appellant. In fact, even prior to issue of the
show cause notice, the appellant was aware of the issues between the
parties through the notice dated 4.8.2012. It would, therefore, be
difficult to say that the appellant did not know what case it had to meet
while responding to the show-cause notice. In any case, the appellant did
respond to the show cause notice without claiming the ambiguity in the said
notice and, therefore, it is not open to it to assail the impugned order on
the ground that there was no specific reference to the proposed
blacklisting of in the said notice”.

14) Not satisfied with the aforesaid outcome, the appellant preferred
Letters Patent Appeal before the Division Bench of the High Court. However,
it has met the same fate in as much as the High Court has dismissed the
appeal vide impugned judgment dated 29.11.2013 affirming the view taken by
the learned Single Judge.
15) It is in this backdrop, question which has arisen for our
consideration in the present case is as to whether action of blacklisting
could be taken without specifically proposing/ contemplating such an action
in the show cause notice? To put it otherwise, whether the power of
blacklisting contained in Clause 27 of the NIT, was sufficient for the
appellant to be on his guards, and to presume that such an action could be
taken even though not specifically spelled out in the show cause notice?
16) We have heard the learned Counsel for the parties appearing on the
either side on the aforesaid aspects, in detail. Before we proceed to
answer the question we may restate and highlight the legal position about
which there is neither any dispute, nor can there be as there is no escape
from the below stated legal principle:
Necessity of serving show cause notice as a requisite of the Principles of
Natural Justice:
17) It is a common case of the parties that the blacklisting has to be
preceded by a show cause notice. Law in this regard is firmly grounded and
does not even demand much amplification. The necessity of compliance with
the principles of natural justice by giving the opportunity to the person
against whom action of blacklisting is sought to be taken has a valid and
solid rationale behind it. With blacklisting many civil and/ or evil
consequences follow. It is described as “civil death” of a person who is
foisted with the order of blacklisting. Such an order is stigmatic in
nature and debars such a person from participating in Government Tenders
which means precluding him from the award of Government contracts. Way back
in the year 1975, this court in the case of M/s. Erusian Equipment &
Chemicals Ltd. v. State of West Bengal & Anr.; (1975) 1 SCC 70, highlighted
the necessity of giving an opportunity to such a person by serving a show
cause notice thereby giving him opportunity to meet the allegations which
were in the mind of the authority contemplating blacklisting of such a
person. This is clear from the reading of Para Nos. 12 and 20 of the said
judgment. Necessitating this requirement, the court observed thus:
“12. Under Article 298 of the Constitution the executive power of the Union
and the State shall extend to the carrying on of any trade and to the
acquisition, holding and disposal of property and the making of contracts
for any purpose. The State can carry on executive function by making a law
or without making a law. The exercise of such powers and functions in trade
by the State is subject to Part III of the Constitution. Article 14 speaks
of equality before the law and equal protection of the laws. Equality of
opportunity should apply to matters of public contracts. The State has the
right to trade. The State has there the duty to observe equality. An
ordinary individual can choose not to deal with any person. The Government
cannot choose to exclude persons by discrimination. The order of
blacklisting has the effect of depriving a person of equality of
opportunity in the matter of public contract. A person who is on the
approved list is unable to enter into advantageous relations with the
Government because of the order of blacklisting. A person who has been
dealing with the Government in the matter of sale and purchase of materials
has a legitimate interest or expectation. When the State acts to the
prejudice of a person it has to be supported by legality.

20. Blacklisting has the effect of preventing a person from the privilege
and advantage of entering into lawful relationship with the Government for
purposes of gains. The fact that a disability is created by the order of
blacklisting indicates that the relevant authority is to have an objective
satisfaction. Fundamentals of fair play require that the person concerned
should be given an opportunity to represent his case before he is put on
the blacklist”.

Again, in Raghunath Thakur v. State of Bihar and Ors.;(1989) 1 SCC 229 the
aforesaid principle was reiterated in the following manner:-
“4. Indisputably, no notice had been given to the appellant of the proposal
of blacklisting the appellant. It was contended on behalf of the State
Government that there was no requirement in the rule of giving any prior
notice before blacklisting any person. Insofar as the contention that there
is no requirement specifically of giving any notice is concerned, the
respondent is right. But it is an implied principle of the rule of law that
any order having civil consequence should be passed only after following
the principles of natural justice. It has to be realised that blacklisting
any person in respect of business ventures has civil consequence for the
future business of the person concerned in any event. Even if the rules do
not express so, it is an elementary principle of natural justice that
parties affected by any order should have right of being heard and making
representations against the order. In that view of the matter, the last
portion of the order insofar as it directs blacklisting of the appellant in
respect of future contracts, cannot be sustained in law. In the premises,
that portion of the order directing that the appellant be placed in the
blacklist in respect of future contracts under the Collector is set aside.
So far as the cancellation of the bid of the appellant is concerned, that
is not affected. This order will, however, not prevent the State Government
or the appropriate authorities from taking any future steps for
blacklisting the appellant if the Government is so entitled to do in
accordance with law i.e. after giving the appellant due notice and an
opportunity of making representation. After hearing the appellant, the
State Government will be at liberty to pass any order in accordance with
law indicating the reasons therefor. We, however, make it quite clear that
we are not expressing any opinion on the correctness of otherwise of the
allegations made against the appellant. The appeal is thus disposed of.”

Recently, in the case of Patel Engineering Ltd. v. Union of India and Anr.;
(2012) 11 SCC 257 speaking through one of us (Jasti Chelameswar, J.) this
Court emphatically reiterated the principle by explaining the same in the
following manner:
“13. The concept of “blacklisting” is explained by this Court in Erusian
Equipment & Chemicals Ltd. v. State of W.B. as under:

“20. Blacklisting has the effect of preventing a person from the privilege
and advantage of entering into lawful relationship with the Government for
purposes of gains.”

14. The nature of the authority of the State to blacklist the persons was
considered by this Court in the abovementioned case and took note of the
constitutional provision (Article 298), which authorises both the Union of
India and the States to make contracts for any purpose and to carry on any
[pic]trade or business. It also authorises the acquisition, holding and
disposal of property. This Court also took note of the fact that the right
to make a contract includes the right not to make a contract. By
definition, the said right is inherent in every person capable of entering
into a contract. However, such a right either to enter or not to enter into
a contract with any person is subject to a constitutional obligation to
obey the command of Article 14. Though nobody has any right to compel the
State to enter into a contract, everybody has a right to be treated equally
when the State seeks to establish contractual relationships. The effect of
excluding a person from entering into a contractual relationship with the
State would be to deprive such person to be treated equally with those, who
are also engaged in similar activity.

15. It follows from the above judgment in Erusian Equipment case that the
decision of the State or its instrumentalities not to deal with certain
persons or class of persons on account of the undesirability of entering
into the contractual relationship with such persons is called blacklisting.
The State can decline to enter into a contractual relationship with a
person or a class of persons for a legitimate purpose. The authority of the
State to blacklist a person is a necessary concomitant to the executive
power of the State to carry on the trade or the business and making of
contracts for any purpose, etc. There need not be any statutory grant of
such power. The only legal limitation upon the exercise of such an
authority is that the State is to act fairly and rationally without in any
way being arbitrary—thereby such a decision can be taken for some
legitimate purpose. What is the legitimate purpose that is sought to be
achieved by the State in a given case can vary depending upon various
factors.”

18) Thus, there is no dispute about the requirement of serving show cause
notice. We may also hasten to add that once the show cause notice is given
and opportunity to reply to the show cause notice is afforded, it is not
even necessary to give an oral hearing. The High Court has rightly
repudiated the appellant’s attempt in finding foul with the impugned order
on this ground. Such a contention was specifically repelled in Patel
Engineering (supra).
Contents of Show Cause Notice
19) The Central issue, however, pertains to the requirement of stating
the action which is proposed to be taken. The fundamental purpose behind
the serving of Show Cause Notice is to make the noticee understand the
precise case set up against him which he has to meet. This would require
the statement of imputations detailing out the alleged breaches and
defaults he has committed, so that he gets an opportunity to rebut the
same. Another requirement, according to us, is the nature of action which
is proposed to be taken for such a breach. That should also be stated so
that the noticee is able to point out that proposed action is not warranted
in the given case, even if the defaults/ breaches complained of are not
satisfactorily explained. When it comes to black listing, this requirement
becomes all the more imperative, having regard to the fact that it is
harshest possible action.
20) The High Court has simply stated that the purpose of show cause
notice is primarily to enable the noticee to meet the grounds on which the
action is proposed against him. No doubt, the High Court is justified to
this extent. However, it is equally important to mention as to what would
be the consequence if the noticee does not satisfactorily meet the grounds
on which an action is proposed. To put it otherwise, we are of the opinion
that in order to fulfil the requirements of principles of natural justice,
a show cause notice should meet the following two requirements viz:
i) The material/ grounds to be stated on which according to the
Department necessitates an action;

ii) Particular penalty/action which is proposed to be taken. It is this
second requirement which the High Court has failed to omit.

we may hasten to add that even if it is not specifically mentioned in the
show cause notice but it can be clearly and safely be discerned from the
reading thereof, that would be sufficient to meet this requirement.
Discussion with reference to the instant case:
21) With the aforesaid statement of law, now let us proceed with the
present case scenario.
22) It would be necessary to take note of the relevant portion of clause
27 of the NIT under which umbrage is taken by the respondents to justify
their action, and even appealed to the High Court. Clause 27 (a) (c) (a)
reads as under:
“a…. (sic) In case the contractor fails to commence/ execute the work as
stipulated in the agreement or unsatisfactory performance or does not meet
the statutory requirements of the contract, Department reserves the right
to impose the penalty as detailed below:-

(i) 20% of cost of order/ agreement per week, upto two weeks’ delays.

(ii) After two weeks delay Principal Employer reserves the right to cancel
the contract and withhold the agreement and get this job carried out
preferably from other contractor(s) registered with DGR and then from open
market or with other agencies if DGR registered agencies are not in a
position to provide such Contractor(s). The difference if any will be
recovered from the defaulter contractor and also shall be blacklisted for a
period of 4 years from participating in such type of tender and his earnest
money/ security deposit may also be forfeited, if so warranted.”

23) It is clear from the reading of the aforesaid clause that when there
is a failure on the part of the contractor to comply with the express terms
of the contract and/ or to commit breach of the said terms resulting into
failure to commence/ execute the work as stipulated in the agreement or
giving the performance that does not meet the statutory requirements of the
contract, the Department has a right to impose various kinds of penalties
as provided in the aforesaid clause. These penalties are of the following
nature:-

(i) Penalty in the form of 20% of cost of orders/ agreement per week,
upto delay of 2 weeks.

(ii) If the delay is beyond 2 weeks then:
a) To cancel the contract and withhold the agreement. In that event,
Department has right to get the job carried out from other
contractor at the cost of the defaulter contractor;

b) To black list the defaulter contractor for a period of 4 years;

c) To forfeit his earnest money/ deposits, if so warranted.

24) In the present case, it is obvious that action is taken as provided
in sub clause 2(ii). Under this clause, as is clear from the reading
thereof, the Department had a right to cancel the contract and withhold the
agreement. That has been done. The Department has also a right to get the
job which was to be carried out by the defaulting contractor, to be carried
out from other contractor(s). In such an event, the Department also has a
right to recover the difference from the defaulting contractor. This
clause, no doubt, gives further right to the Department to blacklist the
contractor for a period of 4 years and also forfeit his earnest money/
security deposit, if so required.
25) It is thus apparent that this sub-clause provides for various actions
which can be taken and penalties which can be imposed by the Department. In
such a situation which action the Department proposes to take, need to be
specifically stated in the show cause notice. It becomes all the more
important when the action of black listing and/ or forfeiture of earnest
money/ security deposit is to be taken, as the clause stipulates that such
an action can be taken, if so warranted. The words “if so warranted”,
thus, assume great significance. It would show that it is not necessary for
the Department to resort to penalty of black listing or forfeiture of
earnest money/ security deposit in all cases, even if there is such a
power. It is left to the Department to inflict any such penalty or not
depending upon as to whether circumstances in a particular case warrant
such a penalty. There has to be due application of mind by the authority
competent to impose the penalty, on these aspects. Therefore, merely
because of the reason that clause 27 empowers the Department to impose such
a penalty, would not mean that this specific penalty can be imposed,
without putting the defaulting contractor to notice to this effect.
26) We are, therefore, of the opinion that it was incumbent on the part
of the Department to state in the show cause notice that the competent
authority intended to impose such a penalty of blacklisting, so as to
provide adequate and meaningful opportunity to the appellant to show cause
against the same. However, we may also add that even if it is not
mentioned specifically but from the reading of the show cause notice, it
can be clearly inferred that such an action was proposed, that would
fulfill this requirement. In the present case, however, reading of the
show cause notice does not suggest that noticee could find out that such an
action could also be taken. We say so for the reasons that are recorded
hereinafter.
27) In the instant case, no doubt show cause notice dated 6.2.2013 was
served upon the appellant. Relevant portion thereof has already been
extracted above. This show cause notice is conspicuously silent about the
blacklisting action. On the contrary, after stating in detail the nature of
alleged defaults and breaches of the agreement committed by the appellant
the notice specifically mentions that because of the said defaults the
appellant was “as such liable to be levied the cost accordingly”. It
further says “why the action as mentioned above may not be taken against
the firm, besides other action as deemed fit by the competent authority”.
It follows from the above that main action which the respondents wanted to
take was to levy the cost. No doubt, notice further mentions that competent
authority could take other actions as deemed fit. However, that may not
fulfil the requirement of putting the defaulter to the notice that action
of blacklisting was also in the mind of the competent authority. Mere
existence of Clause 27 in the agreement entered into between the parties,
would not suffice the aforesaid mandatory requirement by vaguely mentioning
other “actions as deemed fit”.
28) As already pointed out above in so far as penalty of black listing
and forfeiture of earnest money/ security deposit is concerned it can be
imposed only, “if so warranted”. Therefore, without any specific
stipulation in this behalf, respondent could not have imposed the penalty
of black listing.

29) No doubt, rules of natural justice are not embodied rules nor can
they be lifted to the position of fundamental rights. However, their aim is
to secure justice and to prevent miscarriage of justice. It is now well
established proposition of law that unless a statutory provision either
specifically or by necessary implication excludes the application of any
rules of natural justice, in exercise of power pre-judicially affecting
another must be in conformity with the rules of natural justice.
30) We are conscious of the following words of wisdom expressed by this
Court through the pen of Justice Krishna Iyer in the case of Chairman,
Board of Mining Examination and Anr. v. Ramjee; 1977 (2) SCC 256:
“If the jurisprudence of remedies were understood and applied from the
perspective of social efficaciousness, the problem raised in this appeal
would not have ended the erroneous way it did in the High Court. Judges
must never forget that every law has a social purpose and engineering
process without appreciating which justice to the law cannot be done. Here,
the socio-legal situation we are faced with is a colliery, an explosive, an
accident, luckily not lethal, caused by violation of a regulation and
consequential cancellation of the certificate of the delinquent shot-firer,
eventually quashed by the High Court, for processual solecisms, by a writ
of certiorari.
Natural justice is no unruly horse, no lurking land mine, nor a judicial
cure all. If fairness is shown by the decision maker to the man proceeded
against, the form, features and the fundamentals of such essential
processual propriety being conditioned by the facts and circumstances of
each situation, no breach of natural justice can be complained of.
Unnatural expansion of natural justice, without reference to the
administrative realities and other factors of a given case, can be
exasperating. We can neither be finical nor fanatical but should be
flexible yet firm in this jurisdiction. No man shall be hit below the belt
– that is the conscience of the matter…. We cannot look at law in the
abstract or natural justice as a mere artefact. Nor can we fit into a rigid
mould the concept of reasonable opportunity.”

31) When it comes to the action of blacklisting which is termed as ‘Civil
Death’ it would be difficult to accept the proposition that without even
putting the noticee to such a contemplated action and giving him a chance
to show cause as to why such an action be not taken, final order can be
passed blacklisting such a person only on the premise that this is one of
the actions so stated in the provisions of NIT.
The “Prejudice” Argument
32) It was sought to be argued by Mr. Maninder Singh, learned ASG
appearing for the respondent, that even if it is accepted that show cause
notice should have contained the proposed action of blacklisting, no
prejudice was caused to the appellant in as much as all necessary details
mentioning defaults/ prejudices committed by the appellant were given in
the show cause notice and the appellant had even given its reply thereto.
According to him, even if the action of blacklisting was not proposed in
the show cause notice, reply of the appellant would have remained the same.
On this premise, the learned ASG has argued that there is no prejudice
caused to the appellant by non mentioning of the proposed action of
blacklisting. He argued that unless the appellant was able to show that non
mentioning of blacklisting as the proposed penalty has caused prejudice and
has resulted in miscarriage of justice, the impugned action cannot be
nullified. For this proposition he referred to the judgment of this Court
in Haryana Financial Corporation and Anr. v. Kailash Chandra Ahuja; (2008)
9 SCC 31.
“21. From the ratio laid down in B. Karunakar1 it is explicitly clear that
the doctrine of natural justice requires supply of a copy of the inquiry
officer’s report to the delinquent if such inquiry officer is other than
the disciplinary authority. It is also clear that non-supply of report of
the inquiry officer is in the breach of natural justice. But it is equally
clear that failure to supply a report of the inquiry officer to the
delinquent employee would not [pic]ipso facto result in the proceedings
being declared null and void and the order of punishment non est and
ineffective. It is for the delinquent employee to plead and prove that non-
supply of such report had caused prejudice and resulted in miscarriage of
justice. If he is unable to satisfy the court on that point, the order of
punishment cannot automatically be set aside.

31. At the same time, however, effect of violation of the rule of audi
alteram partem has to be considered. Even if hearing is not afforded to the
person who is sought to be affected or penalised, can it not be argued that
“notice would have served no purpose” or “hearing could not have made
difference” or “the person could not have offered any defence whatsoever”.
In this connection, it is interesting to note that under the English law,
it was [pic]held few years before that non-compliance with principles of
natural justice would make the order null and void and no further inquiry
was necessary.

36. The recent trend, however, is of “prejudice”. Even in those cases where
procedural requirements have not been complied with, the action has not
been held ipso facto illegal, unlawful or void unless it is shown that non-
observance had prejudicially affected the applicant.

44. From the aforesaid decisions, it is clear that though supply of report
of the inquiry officer is part and parcel of natural justice and must be
furnished to the delinquent employee, failure to do so would not
automatically result in quashing or setting aside of the order or the order
being declared null and void. For that, the delinquent employee has to show
“prejudice”. Unless he is able to show that non-supply of report of the
inquiry officer has resulted in prejudice or miscarriage of justice, an
order of punishment cannot be held to be vitiated. And whether prejudice
had been caused to the delinquent employee depends upon the facts and
circumstances of each case and no rule of universal application can be laid
down.”

33) When we apply the ratio of the aforesaid judgment to the facts of the
present case, it becomes difficult to accept the argument of the learned
ASG. In the first instance, we may point out that no such case was set up
by the respondents that by omitting to state the proposed action of
blacklisting, the appellant in the show cause notice has not caused any
prejudice to the appellant. Moreover, had the action of black listing
being specifically proposed in the show cause notice, the appellant could
have mentioned as to why such extreme penalty is not justified. It could
have come out with extenuating circumstances defending such an action even
if the defaults were there and the Department was not satisfied with the
explanation qua the defaults. It could have even pleaded with the
Department not to blacklist the appellant or do it for a lesser period in
case the Department still wanted to black list the appellant. Therefore, it
is not at all acceptable that non mentioning of proposed blacklisting in
the show cause notice has not caused any prejudice to the appellant. This
apart, the extreme nature of such a harsh penalty like blacklisting with
severe consequences, would itself amount to causing prejudice to the
appellant.
34) For the aforesaid reasons, we are of the view that the impugned
judgment of the High Court does not decide the issue in correct
prospective. The impugned order dated 11.9.2013 passed by the respondents
blacklisting the appellant without giving the appellant notice thereto, is
contrary to the principles of natural justice as it was not specifically
proposed and, therefore, there was no show cause notice given to this
effect before taking action of blacklisting against the appellant. We,
therefore, set aside and quash the impugned action of blacklisting the
appellant. The appeals are allowed to this extent. However, we make it
clear that it would be open to the respondents to take any action in this
behalf after complying with the necessary procedural formalities delineated
above.
35) No costs.
…………………………….J.
[J.CHELAMESWAR]

…………………………….J.
[A.K. SIKRI]
New Delhi.
August 4, 2014.

 

NEW DELHI: The Supreme Court on Wednesday allowed resumption of nursery admissions in Delhi which were stalled over scrapping of inter-state transfer quota seats.

images nursery

The apex court quashed the February 27 notification issued by the Delhi lieutenant governor to scrap the inter-state transfer quota and granted admission to successful transfer quota candidates whose parents had approached court.

The apex court said wards of those who had approached the court challenging scrapping of the inter-state transfer quota would be given a seat even if a particular school had filled all seats and asked the Delhi government to raise number of seats, if required, to accommodate 24 students whose parents had approached the court.

With the Supreme Court’s ruling, the five-monthlong impasse on nursery admissions in Delhi finally came to an end.

The SC had on April 11 put nursery admissions on hold again in Delhi schools after it put a stay on Delhi HC’s April 3 interim order directing that those children who were selected in draw of lot for neighbourhood and other categories, be admitted.

It had on April 28 asked Delhi government to consider increasing seats in schools to accommodate inter-state transfer cases.o

Sources: http://timesofindia.indiatimes.com/home/education/news/SC-allows-resumption-of-nursery-admissions-in-Delhi/articleshow/34770861.cms

 

Click to read whole judgement below the link.

supreme court nursery order

 

 

REPORTABLE

 

IN THE SUPREME COURT OF INDIA

CIVIL/CRIMINAL ORIGINAL JURISDICTION

 

WRIT PETITION (C) NO. 10 OF 2013

 

 

SALIL BALI                                              … PETITIONER

 

VS.

 

UNION OF INDIA & ANR.                           … RESPONDENTS

 

WITH

W.P.(C)NOS.14, 42, 85, 90 and 182 OF 2013

WITH

W.P.(CRL)NO.6 OF 2013

AND

T.C.(C)No. 82 OF 2013

 

 

J U D G M E N T

 

 

ALTAMAS KABIR, CJI.

 

 

  1. Seven Writ Petitions and one Transferred Case  have  been  taken  up

together for consideration in view of the commonality  of  the  grounds  and

reliefs prayed for therein.  While in Writ Petition  (C)  No.  14  of  2013,

Saurabh Prakash Vs. Union of India, and Writ Petition (C) No.  90  of  2013,

Vinay K. Sharma Vs. Union of India,  a  common  prayer  has  been  made  for

declaration of the Juvenile Justice (Care and Protection of  Children)  Act,

2000, as ultra vires the Constitution, in Writ Petition (C) No. 10 of  2013,

Salil Bali Vs. Union of India, Writ Petition (C) No.  85  of  2013,  Krishna

Deo Prasad Vs. Union of India, Writ Petition  (C)  No.  42  of  2013,  Kamal

Kumar Pandey & Sukumar Vs. Union of India and Writ Petition (C) No.  182  of

2013, Hema Sahu Vs. Union of India, a common  prayer  has  inter  alia  been

made to strike down the provisions of Section 2(k)  and  (l)  of  the  above

Act, along with a prayer to bring  the  said  Act  in  conformity  with  the

provisions of the Constitution and to direct the Respondent No.  1  to  take

steps to make changes in  the  Juvenile  Justice  (Care  and  Protection  of

Children) Act, 2000, to bring it in line with the  United  Nations  Standard

Minimum Rules for administration of juvenile justice.  In  addition  to  the

above, in Writ Petition (Crl.) No. 6 of 2013, Shilpa Arora Sharma Vs.  Union

of India, a prayer has inter alia been made to appoint a panel  of  criminal

psychologists to determine through clinical methods whether the juvenile  is

involved in the Delhi gang rape on 16.12.2012.  Yet,  another  relief  which

has been prayed for in common during the oral submissions made on behalf  of

the Petitioners was that in offences like rape and murder, juveniles  should

be tried  under  the  normal  law  and  not  under  the  aforesaid  Act  and

protection granted to persons up to the age of 18 years under the  aforesaid

Act may be removed and that the investigating agency should be permitted  to

keep the record of the juvenile offenders to  take  preventive  measures  to

enable them to detect  repeat  offenders  and  to  bring  them  to  justice.

Furthermore, prayers have also been made in Writ Petition (Crl.)  No.  6  of

2013 and Writ Petition (C) No.  85  of  2013,  which  are  personal  to  the

juvenile accused in the Delhi gang rape case of 16.12.2012, not  to  release

him and to keep him in custody or any place of strict  detention,  after  he

was found to be a mentally abnormal  psychic  person  and  that  proper  and

detailed investigation be conducted by the CBI to ascertain his correct  age

by examining his school documents and other records and to  further  declare

that prohibition in Section 21 of the Juvenile Justice (Care and  Protection

of Children) Act, 2000, be declared unconstitutional.

 

  1. In most of the matters, the Writ Petitioners appeared in-person,  in

support of their individual cases.

 

  1. Writ Petition (C) No.10 of 2013,  filed  by  Shri  Salil  Bali,  was

taken up as the first matter in the bunch.   The  Petitioner  appearing  in-

person urged that it was necessary for the provisions of Section 2(k),  2(l)

and 15 of the Juvenile Justice (Care and Protection of Children) Act,  2000,

to be reconsidered in the light of the  spurt  in  criminal  offences  being

committed by persons within the range of 16 to 18 years, such  as  the  gang

rape of a young woman inside  a  moving  vehicle  on  16th  December,  2012,

wherein along with others, a juvenile, who  had  attained  the  age  of  17=

years, was being tried separately  under  the  provisions  of  the  Juvenile

Justice (Care and Protection of Children) Act, 2000.

 

  1. Mr. Bali submitted that the age of responsibility,  as  accepted  in

India, is different from what has been accepted by other  countries  of  the

  1. But,  Mr.  Bali  also  pointed  out  that  even  in  the   criminal

jurisprudence  prevalent  in   India,   the   age   of   responsibility   of

understanding the consequences of one’s actions had been  recognized  as  12

years in the Indian Penal Code.  Referring to Section 82 of  the  Code,  Mr.

Bali pointed out that the same provides that nothing is an offence which  is

done by a child under seven  years  of  age.   Mr.  Bali  also  referred  to

Section 83 of the Code, which provides that nothing is an offence  which  is

done by a child above seven years of age  and  under  twelve,  who  has  not

attained sufficient maturity  of  understanding  to  judge  the  nature  and

consequences of his conduct on a particular occasion.  Mr. Bali,  therefore,

urged  that  even  under  the  Indian  Criminal  Jurisprudence  the  age  of

understanding has been fixed at twelve years, which according  to  him,  was

commensurate with the thinking  of  other  countries,  such  as  the  United

States of America, Great Britain and Canada.

 

  1. In regard to  Canada,  Mr.  Bali  referred  to  the  Youth  Criminal

Justice Act, 2003, as amended from time to time, where the age  of  criminal

responsibility has been fixed at twelve years.  Referring to Section  13  of

the Criminal Code of Canada, Mr. Bali submitted that the  same  is  in  pari

materia with the provisions of Section 83 of  the  Indian  Penal  Code.   In

fact, according to the Criminal Justice Delivery System in Canada,  a  youth

between the age of 14 to 17 years may be tried and sentenced as an adult  in

certain situations.  Mr. Bali also pointed  out  that  even  in  Canada  the

Youth  Criminal  Justice  Act  governs  the  application  of  criminal   and

correctional law to those who are twelve years old  or  older,  but  younger

than 18 at the time of committing the offence, and  that,  although,  trials

were to take place in a Youth Court, for certain  offences  and  in  certain

circumstances, a youth may be awarded an adult sentence.

  1. Comparing  the  position  in  USA  and  the  Juvenile  Justice  and

Delinquency Prevention Act, 1974, he urged that while in several States,  no

set standards have been provided, reliance is placed on the common  law  age

of seven in fixing the age of criminal responsibility, the lowest being  six

years in North Carolina.  The general  practice  in  the  United  States  of

America, however, is that even for such children, the  courts  are  entitled

to impose life sentences in respect of certain types of offences,  but  such

life sentences without parole were not permitted for those under the age  of

eighteen years convicted of murder or offences involving violent crimes  and

weapons violations.

 

  1.     In England and Wales,  children  accused  of  crimes  are  generally

tried under the Children and Young Persons Act, 1933, as amended by  Section

16(1) of the Children and Young Persons Act, 1963.   Under  the  said  laws,

the minimum age of criminal responsibility  in  England  and  Wales  is  ten

years and those below the said age are considered to be  doli  incapax  and,

thus, incapable of having any mens rea, which is similar to  the  provisions

of Sections 82 and 83 of Indian Penal Code.

 

  1. Mr. Bali has also referred to the legal circumstances prevailing  in

other parts of the world wherein the  age  of  criminal  responsibility  has

been fixed between ten to sixteen years.  Mr. Bali contended that there  was

a general worldwide concern over the rising graph of  criminal  activity  of

juveniles  below  the  age  of  eighteen  years,  which  has  been  accepted

worldwide to be the age limit under which all persons were to be treated  as

  1. Mr.  Bali  sought  to  make  a  distinction  in  regard  to  the

definition of children as such in Sections 2(k) and  2(l)  of  the  Juvenile

Justice (Care and Protection of  Children)  Act,  2000,  and  the  level  of

maturity of the child who is capable of understanding  the  consequences  of

his actions.  He, accordingly, urged that the provisions of Sections 15  and

16 of the  Act  needed  to  be  reconsidered  and  appropriate  orders  were

required to be passed in regard to the level of  punishment  in  respect  of

heinous offences committed by children below  the  age  of  eighteen  years,

such as murder, rape,  dacoity,  etc.   Mr.  Bali  submitted  that  allowing

perpetrators of such crimes to get off with a sentence  of  three  years  at

the maximum, was not justified and a correctional course was required to  be

undertaken in that regard.

 

  1. Mr. Saurabh Prakash, Petitioner in  Writ  Petition  (C)  No.  14  of

2013, also appeared in-person and, while endorsing the submissions  made  by

Mr. Bali, went a step further in suggesting that in view of  the  provisions

of Sections 15 and 16 of  the  Juvenile  Justice  (Care  and  Protection  of

Children) Act, 2000, children, as defined in the above Act,  were  not  only

taking advantage of the same, but were also  being  used  by  criminals  for

their own ends.  The Petitioner reiterated Mr. Bali’s submission that  after

being awarded a maximum sentence of three years,  a  juvenile  convicted  of

heinous offences, was almost likely to become a monster in society and  pose

a great danger to others, in view of his criminal  propensities.   Although,

in the prayers to the Writ Petition, one of the reliefs prayed for  was  for

quashing the provisions of the entire Act, Mr.  Saurabh  Prakash  ultimately

urged that some of the provisions thereof were such as could  be  segregated

and struck down so as to preserve the Act as a whole.  The Petitioner  urged

that, under Article 21 of the Constitution, every citizen has a  fundamental

right to live in dignity and peace, without being subjected to  violence  by

other members of society and that by shielding  juveniles,  who  were  fully

capable of  understanding  the  consequences  of  their  actions,  from  the

sentences, as could be awarded under  the  Indian  Penal  Code,  as  far  as

adults are concerned, the State was creating a class of  citizens  who  were

not only prone to criminal activity,  but  in  whose  cases  restoration  or

rehabilitation was not possible.  Mr. Saurabh  Prakash  submitted  that  the

provisions of  Sections  15  and  16  of  the  Juvenile  Justice  (Care  and

Protection of Children) Act, 2000,  violated  the  rights  guaranteed  to  a

citizen under Article 21 of the Constitution  and  were,  therefore,  liable

to be struck down.

 

  1. Mr. Saurabh Prakash also submitted that the  provisions  of  Section

19 of the Act, which provided for removal of disqualification  attaching  to

conviction, were also illogical and were liable to be struck down.   It  was

submitted that in order to prevent repeated offences by  an  individual,  it

was necessary to maintain the  records  of  the  inquiry  conducted  by  the

Juvenile Justice Board, in relation to juveniles so that such records  would

enable the authorities concerned to assess the  criminal  propensity  of  an

individual, which would call for a different approach to  be  taken  at  the

time of inquiry.  Mr. Saurabh Prakash urged this Court to give  a  direction

to the effect that the Juvenile  Justice  Board  or  courts  or  other  high

public authorities would have the discretion to direct that in a  particular

case, the provisions of the general law would apply to a  juvenile  and  not

those of the Act.

 

  1. Mr.  Vivek  Narayan  Sharma,  learned  Advocate,  appeared  for  the

petitioner in Writ Petition (Crl.) No. 6 of 2013, filed by one Shilpa  Arora

Sharma, and submitted that the Juvenile Justice Board should be vested  with

the discretion to impose  punishment  beyond  three  years,  as  limited  by

Section 15 of the Juvenile Justice (Care and Protection  of  Children)  Act,

2000, in cases where a child, having full knowledge of the  consequences  of

his/her actions, commits a  heinous  offence  punishable  either  with  life

imprisonment or death.  Mr. Sharma submitted  that  such  a  child  did  not

deserve to be treated as a child and be allowed  to  re-mingle  in  society,

particularly when the identity of the child is to be  kept  a  secret  under

Sections 19  and  21  of  the  Juvenile  Justice  (Care  and  Protection  of

Children) Act, 2000.  Mr. Sharma  submitted  that  in  many  cases  children

between the  ages  of  sixteen  to  eighteen  years  were,  in  fact,  being

exploited by adults to commit heinous offences who knew full well  that  the

punishment therefor would not exceed three years.

 

  1. Mr. Sharma urged  that  without  disturbing  the  other  beneficient

provisions of the Juvenile Justice (Care and Protection  of  Children)  Act,

2000, some of the gray areas pointed  out  could  be  addressed  in  such  a

manner as would make the Juvenile Justice (Care and Protection of  Children)

Act, 2000, more effective and prevent the misuse thereof.

 

  1. In Writ Petition (C) No. 85 of 2013, filed by  Krishna  Deo  Prasad,

Dr. R.R. Kishor appeared for the Petitioner and gave a detailed  account  of

the manner in which  the  Juvenile  Justice  Delivery  System  had  evolved.

Referring to the doctrine of doli incapax, rebuttable presumption and  adult

responsibility,  Dr.  Kishor  contended  that  even  Article  1  of  the  UN

Convention on the Rights of the Child  defines  a  child  in  the  following

terms:

“Article 1

 

 

For the purposes of the present Convention, a child means  every

human being below the age of eighteen years unless under the law

applicable to the child, majority is attained earlier.”

 

  1. Dr. Kishor contended that, as pointed out by  Mr.  Salil  Bali,  the

expression “child” has been defined in various ways in  different  countries

all over the world.  Accordingly, the definition of a child in Section  2(k)

of the Juvenile Justice (Care and Protection of Children) Act,  2000,  would

depend on the existing laws in India defining a child.  Dr. Kishor  referred

to the provisions of the Child  Labour  (Prohibition  and  Regulation)  Act,

1986, as an example, to indicate that children up to  the  age  of  fourteen

years were treated differently from children between the  ages  of  fourteen

to eighteen, for the purposes of employment in  hazardous  industries.   Dr.

Kishor re-asserted  the  submissions  made  by  Mr.  Bali  and  Mr.  Saurabh

Prakash, in regard to heinous crimes committed by children below the age  of

eighteen years, who were capable of understanding the consequences of  their

 

  1. Dr. Kishor also referred to the provisions of Sections 82 and 83  of

the Indian Penal Code, where the age  of  responsibility  and  comprehension

has been fixed at twelve years and below.  Learned  counsel  submitted  that

having regard to  the  above-mentioned  provisions,  it  would  have  to  be

seriously considered as  to  whether  the  definition  of  a  child  in  the

Juvenile Justice (Care and  Protection  of  Children)  Act,  2000,  required

  1. He urged that because a person under the age of  18  years

was considered to be a child,  despite  his  or  her  propensity  to  commit

criminal offences, which are of a heinous and even gruesome nature, such  as

offences punishable under Sections 376, 307, 302,  392,  396,  397  and  398

IPC, the said provisions have been misused and exploited  by  criminals  and

people having their own  scores  to  settle.   Dr.  Kishor  urged  that  the

definition of a “juvenile” or a “child” or  a  “juvenile  in  conflict  with

law”,  in  Sections  2(k)  and  2(l)  of  the  Juvenile  Justice  (Care  and

Protection of Children)  Act,  2000,  was  liable  to  be  struck  down  and

replaced with  a  more  meaningful  definition,  which  would  exclude  such

 

  1. Mr. Vikram  Mahajan,  learned  Senior  Advocate  appearing  for  the

Petitioner, Vinay K. Sharma, in Writ Petition (C)  No.  90  of  2013,  urged

that the right given  to  a  citizen  of  India  under  Article  21  of  the

Constitution is impinged upon by the Juvenile Justice (Care  and  Protection

of Children) Act, 2000.  Mr. Mahajan urged that the Juvenile  Justice  (Care

and Protection of Children) Act, 2000, operates in violation of Articles  14

and 21 of the Constitution and that Article 13(2),  which  relates  to  post

Constitution laws, prohibits the State from making a law which either  takes

away totally or abrogates in part a fundamental  right.   Referring  to  the

United Nations Declaration on the Elimination  of  Violence  against  Women,

adopted by the General Assembly on 20th December, 1993, Mr. Mahajan  pointed

out that Article 1 of the Convention describes “violence against  women”  to

mean any act of gender-based violence that  results  in,  or  is  likely  to

result in, physical, sexual or psychological harm  or  suffering  to  women.

Referring to the alleged gang rape of a 23 year  old  para-medical  student,

in a moving bus, in Delhi, on 16th December,  2012,  Mr.  Mahajan  tried  to

indicate that crimes committed by juveniles had reached  large  and  serious

proportions and that there was a need to amend the law to ensure  that  such

persons were not given the benefit of lenient  punishment,  as  contemplated

under Section 15 of the Juvenile Justice (Care and Protection  of  Children)

Act, 2000.  From the figures cited by him,  he  urged  that  even  going  by

statistics, 1% of the total number of crimes committed in the country  would

amount to a large number and the remedy to such a problem would lie  in  the

Probation of Offenders Act, 1958, which made the provisions of the  Juvenile

Justice (Care and Protection of Children) Act,  2000,  redundant  and  ultra

vires Article 21 of the Constitution.

 

  1. Ms. Shweta Kapoor appeared in Transferred Case No. 82  of  2013  in-

person and  questioned  the  vires  of  Sections  16(1),  19(1),  49(2)  and

52(2)(a) of the Juvenile Justice (Care  and  Protection  of  Children)  Act,

2000, and submitted that they were liable to be declared as ultra vires  the

  1. Referring to Section 16 of  the  aforesaid  Act,  Ms.  Kapoor

submitted that even in  the  proviso  to  Sub-section  (1)  of  Section  16,

Parliament had recognized  the  distinction  between  a  juvenile,  who  had

attained the age of sixteen years, but had committed an  offence  which  was

so serious in nature that it  would  not  be  in  his  interest  or  in  the

interest of other juveniles in a special home, to send him to  such  special

  1. Considering that none of the other measures provided under  the  Act

was suitable or sufficient,  the Government had empowered the Board to  pass

an order for the juvenile to be kept in such place of  safety  and  in  such

manner as it thought fit.  Ms. Kapoor submitted that no objection  could  be

taken to the said provision except for the  fact  that  in  the  proviso  to

Section 16(2), it has been added that the period of  detention  order  would

not exceed, in any case, the maximum limit of punishment, as provided  under

Section 15, which is three years.

 

  1. Ms. Kapoor contended that  while  the  provisions  of  the  Juvenile

Justice (Care and Protection of Children) Act,  2000,  are  generally  meant

for the benefit of the juvenile offenders, a serious attempt would  have  to

be  made  to  grade  the  nature  of  offences  to  suit   the   reformation

contemplated by the Act.

 

  1. As part of her submissions, Ms. Kapoor referred to the  decision  of

this Court in Avishek Goenka Vs. Union of India [(2012) 5 SCC 321],  wherein

the pasting of black films on glass panes  were  banned  by  this  Court  on

account of the fact that partially opaque glass panes on vehicles  acted  as

facilitators of crime.  Ms. Kapoor urged that in the  opening  paragraph  of

the judgment, it has been observed that “Alarming  rise  in  heinous  crimes

like kidnapping, sexual assault on women and dacoity have impinged upon  the

right to life and the right to live in a safe environment which  are  within

the contours of Article 21 of the Constitution of India”.  Ms.  Kapoor  also

referred to another decision of this Court in Abuzar Hossain  Vs.  State  of

West Bengal [(2012) 10 SCC 489],  which  dealt  with  a  different  question

regarding the provisions of Section 7A of the  Juvenile  Justice  (Care  and

Protection of Children) Act, 2000, and the right of an accused to raise  the

claim of juvenility at any stage of  the  proceedings  and  even  after  the

final disposal of the case.

 

  1. In conclusion, Ms. Kapoor  reiterated  her  stand  that  in  certain

cases the definition of  a  juvenile  in  Sections  2(k)  and  2(l)  of  the

Juvenile Justice (Care and Protection of Children) Act, 2000, would have  to

be considered differently.

 

  1. The next  matter  which  engaged  our  attention  is  Writ  Petition

(Civil) No.90 of 2013 filed  by  one  Vinay  Kumar  Sharma,  praying  for  a

declaration that the Juvenile Justice  (Care  and  Protection  of  Children)

Act, 2000, be declared  ultra  vires  the  Constitution  and  that  children

should also be tried along with adults under the penal  laws  applicable  to

 

  1. Writ Petition (Civil) No.42 of 2013 has been filed  by  Kamal  Kumar

Pandey and Sukumar, Advocates,  inter  alia,  for  an  appropriate  writ  or

direction declaring the provisions of  Sections  2(1),  10  and  17  of  the

Juvenile Justice  (Care  and  Protection  of  Children)  Act,  2000,  to  be

irrational, arbitrary, without reasonable nexus and thereby ultra vires  and

unconstitutional, and for a Writ of  Mandamus  commanding  the  Ministry  of

Home Affairs and the Ministry of Law and Justice, Government  of  India,  to

take  steps  that  the  aforesaid  Act  operates  in  conformity  with   the

  1. In addition, a prayer was made to declare the  provisions  of

Sections 15 and 19 of the above Act ultra vires the Constitution.

 

  1. The main  thrust  of  the  argument  advanced  by  Mr.  Pandey,  who

appeared in person, was the  inter-play  between  International  Conventions

and Rules, such as the Beijing Rules,  1985,  the  U.N.  Convention  on  the

Rights of the Child, 1989, and the Juvenile Justice (Care and Protection  of

Children) Act, 2000.  While admitting  the  salubirous  and  benevolent  and

progressive character of the legislation in dealing with  children  in  need

of care and protection and with children in conflict with  law,  Mr.  Pandey

contended that a distinction was required to be made in respect of  children

with a propensity to  commit  heinous  crimes  which  were  a  threat  to  a

peaceful social order.  Mr. Pandey reiterated the submissions  made  earlier

that it was unconstitutional to place all  juveniles,  irrespective  of  the

gravity of the offences,  in one bracket.  Urging that Section 2(l)  of  the

Juvenile Justice (Care and Protection of Children) Act, 2000, ought  not  to

have placed all children in conflict with law within the same  bracket,  Mr.

Pandey  submitted  that  the  same  is  ultra  vires  Article  21   of   the

  1. Referring to the report of the National Crime Records  Bureau

(NCRB) for the years 2001 to 2011, Mr. Pandey submitted  that  between  2001

and 2011, the involvement of juveniles  in  cognizable  crimes  was  on  the

  1. Mr.  Pandey  urged  that  it   was   a   well-established   medical-

psychological fact that the level of understanding of a 16 year-old  was  at

par with that of adults.

 

  1. Mr. Pandey’s next volley was directed  towards  Section  19  of  the

Juvenile  Justice  (Care  and  Protection  of  Children)  Act,  2000,  which

provides for the removal of any disqualification attached to an  offence  of

any nature.  Mr. Pandey submitted that the said provisions do not take  into

account the fact relating  to  repeated  offences  being  perpetrated  by  a

juvenile whose  records  of  previous  offences  are  removed.   Mr.  Pandey

contended that Section 19 of the Act was required to be  amended  to  enable

the concerned authorities to retain records of previous  offences  committed

by a juvenile for the purposes  of  identification  of  a  juvenile  with  a

propensity to repeatedly commit offences of a grievous or heinous nature.

 

  1. Mr. Pandey submitted that Parliament had  exceeded  its  mandate  by

blindly adopting eighteen as the upper limit in categorising a  juvenile  or

a  child,  in  accordance  with  the  Beijing  Rules,  1985,  and  the  U.N.

Convention, 1989, without taking into account  the  socio-cultural  economic

conditions and the legal system for administration of  criminal  justice  in

  1. Mr. Pandey urged that the Juvenile Justice (Care and  Protection  of

Children) Act,  2000,  was  required  to  operate  in  conformity  with  the

provisions of the Constitution of India.

 

  1. Ms. Hema Sahu, the petitioner in Writ Petition (Civil)  No.  182  of

2013, also appeared in person and restated the views expressed by the  other

petitioners  that  the  United  Nations  Standard  Minimum  Rules  for   the

Administration of Juvenile Justice, commonly known as the  “Beijing  Rules”,

recognized and noted the difference in the nature of offences  committed  by

juveniles in conflict with law.  Referring to the decision of this Court  in

the case commonly known as the “Bombay  Blasts  Case”,  Ms.  Sahu  submitted

that a juvenile who was tried and convicted  along  with  adults  under  the

Terrorist and Disruptive Activities Act (TADA), was  denied  the  protection

of the Juvenile Justice (Care and Protection  of  Children)  Act,  2000,  on

account of the serious nature of the offence.  Ms. Sahu ended  on  the  note

that paragraph 4 of the 1989 Convention did not make any reference to age.

 

  1. Appearing for the Union of India, the Additional Solicitor  General,

Mr. Siddharth Luthra, strongly opposed the submissions  made  on  behalf  of

the Petitioners to either declare the  entire  Juvenile  Justice  (Care  and

Protection of Children) Act, 2000, as ultra vires the Constitution or  parts

thereof,  such as Sections 2(k),  2(l),  15,  16,  17,  19  and  21.   After

referring to the aforesaid provisions of  the  Juvenile  Justice  (Care  and

Protection  of  Children)  Act,  2000,  the  learned  ASG   submitted   that

Parliament consciously fixed eighteen years  as  the  upper  age  limit  for

treating persons as juveniles and children, taking  into  consideration  the

general trend of legislation,  not  only  internationally,  but  within  the

country as well.

 

  1. The learned ASG  submitted  that  the  Juvenile  Justice  (Care  and

Protection of Children) Act, 2000, was enacted after years  of  deliberation

and in conformity with international standards as  laid  down  in  the  U.N.

Convention on the Rights of the Child, 1989, the Beijing  Rules,  1985,  the

Havana Rules and other  international  instruments  for  securing  the  best

interests of the child with the primary object of  social  reintegration  of

child victims and children  in  conflict  with  law,  without  resorting  to

conventional judicial proceedings which existed  for  adult  criminals.   In

the course of his submissions, the learned ASG  submitted  a  chart  of  the

various Indian statutes and the manner in which children have been  excluded

from liability under the said Acts upto the age of 18 years. In most of  the

said enactments, a juvenile/child has been  referred  to  a  person  who  is

below 18 years of age.  The learned  ASG  submitted  that  in  pursuance  of

international obligations, the Union of India  after  due  deliberation  had

taken a conscious policy decision to fix the age of a child/juvenile at  the

upper limit of 18 years.  The learned ASG urged that the fixing of  the  age

when a child ceases to be a child at 18 years is a matter  of  policy  which

could not be questioned in a court of law, unless the same  could  be  shown

to have violated any of the fundamental rights, and in  particular  Articles

14 and 21 of the Constitution.  Referring to the decision of this  Court  in

BALCO Employees Union Vs. Union of India [(2002) 2  SCC  333],  the  learned

ASG submitted that at  paragraph  46  of  the  said  judgment  it  had  been

observed that it is neither within the domain of the Courts  nor  the  scope

of judicial review to embark upon an enquiry  as  to  whether  a  particular

public policy was wise or whether something better could be evolved. It  was

further observed that the Courts were reluctant to strike down a  policy  at

the behest of  a  Petitioner  merely  because  it  has  been  urged  that  a

different policy would have been fairer or wiser or more scientific or  more

  1. The  learned  ASG  further  urged  that  Article  15(3)  of   the

Constitution empowers the State to enact special provisions  for  women  and

children, which reveals that the Juvenile Justice (Care  and  Protection  of

Children)  Act,  2000,  was  in  conformity  with  the  provisions  of   the

  1. The learned ASG submitted that in various judgments, this Court  and

the High Courts had recognised the fact that juveniles were required  to  be

treated differently from adults so as to give such children,  who  for  some

reason had gone astray, an opportunity to  realize  their  mistakes  and  to

rehabilitate themselves and rebuild their lives.  Special mention  was  made

with regard to the decision of this Court in Abuzar Hossain (supra) in  this

  1. The learned ASG also referred to the decision  of  this  Court  in

State of Tamil Nadu Vs. K. Shyam Sunder [(2011) 8 SCC 737], wherein  it  had

been observed that merely because the  law  causes  hardships  or  sometimes

results in adverse consequences, it cannot be held to  be  ultra  vires  the

Constitution, nor can it be struck down.  The  learned  ASG  also  submitted

that it was now well-settled that reasonable classification  is  permissible

so long as such classification has a rational nexus with the  object  sought

to be achieved.  This Court has always held that the presumption  is  always

in favour of the constitutionality of an  enactment,  since  it  has  to  be

assumed that the  legislature  understands  and  correctly  appreciates  the

needs of its own people  and  its  discriminations  are  based  on  adequate

 

  1. Referring to the Reports  of  the  National  Crime  Reports  Bureau,

learned ASG pointed out that the percentage of increase  in  the  number  of

offences committed by  juveniles  was  almost  negligible  and  the  general

public perception in such matters was  entirely  erroneous.   In  fact,  the

learned ASG pointed out that even the  Committee  appointed  to  review  the

amendments to the criminal law, headed by former CJI,  J.S.  Verma,  in  its

report submitted on 23rd January, 2013, did not recommend the  reduction  in

the age of juveniles in conflict with  law  and  has  maintained  it  at  18

  1. The learned ASG pointed out that the issue of reduction in  the  age

of juveniles from 18 to 16 years, as it was in the Juveniles Justice Act  of

1986, was also raised in the Lok Sabha  on  19th  March,  2013,  during  the

discussion on the Criminal Law (Amendment) Bill, 2013, but was  rejected  by

the House.

 

  1. The learned ASG submitted that the occurrence of 16th  December,  2012,

involving the alleged gang rape of  a  23  year  old  girl,  should  not  be

allowed to colour the decision taken to treat all persons below the  age  of

18 years, as children.

 

  1. Mr. Anant Asthana, learned Advocate appearing  for HAQ  :  Centre  for

Child Rights, submitted that the Juvenile Justice (Care  and  Protection  of

Children) Act, 2000, as amended in 2006 and 2011, is  a  fairly  progressive

legislation, largely compliant  with  the  Constitution  of  India  and  the

minimum standards contained in the Beijing  Rules.   Mr.  Asthana  contended

that the reason for incidents such as the  16th  December,  2012,  incident,

was not on account of the provisions of the aforesaid Act,  but  on  account

of failure of the administration in implementing  its  provisions.   Learned

counsel submitted that all the Writ Petitions appeared to be  based  on  two

assumptions, namely, (i) that the age of  18  years  for  juveniles  is  set

arbitrarily; and (ii) that by reducing the age for the purpose  of  defining

a child in the aforesaid Act, criminality  amongst  children  would  reduce.

Mr. Asthana submitted that such an  approach  was  flawed  as  it  had  been

incorrectly submitted that the age of 18 years to treat persons as  children

was set arbitrarily and that it is so difficult  to  comprehend  the  causes

and the environment which brings  children  into  delinquency.  Mr.  Asthana

submitted that the answer lies in effective and  sincere  implementation  of

the different laws aimed at improving the conditions of children in need  of

care and protection and providing such protection to children at  risk.  Mr.

Asthana urged that the objective with which the Juvenile Justice  (Care  and

Protection of Children) Act, 2000, was enacted was not aimed  at  delivering

retributive justice, but to  allow  a  rehabilitative,  reformation-oriented

approach in addressing juvenile crimes. Learned counsel submitted  that  the

apathy of the administration towards juveniles and the manner in which  they

are treated would be evident from the fact that by  falsifying  the  age  of

juveniles, they were treated as adults and sent to jails, instead  of  being

produced before the  Juvenile  Justice  Board  or   even  before  the  Child

Welfare Committees to be dealt with in a manner  provided  by  the  Juvenile

Justice (Care and Protection of Children) Act, 2000, for  the  treatment  of

 

  1. Mr. Asthana submitted that even as recently  as  26th  April,  2013,

the Government of India has adopted a  new  National  Policy  for  Children,

which not only recognises that a child  is  any  person  below  the  age  of

eighteen years, but also states that the policy  was  to  guide  and  inform

people of laws, policies, plans  and  programmes  affecting  children.   Mr.

Asthana urged that all actions and initiatives of the  national,  State  and

local Governments in all sectors must respect and uphold the principles  and

provisions of this policy and it would neither be appropriate  nor  possible

for the Union of India to adopt a different  approach  in  the  matter.  Mr.

Asthana, who  appears  to  have  made  an  in-depth  study  of  the  matter,

submitted that on the question of making  the  provisions  in  the  Juvenile

Justice (Care  and  Protection  of  Children)  Act,  2000,  conform  to  the

provisions of the Constitution and to allow the children of a  specific  age

group to be treated as adults, it would  be  appropriate  to  take  note  of

General Comment No.10 made by the U.N. Committee on the rights of the  child

on 25th April, 2007, which specifically dealt with the upper age  limit  for

juveniles and it was reiterated that where it was a case of  a  child  being

in need of care and protection or in conflict with law, every  person  under

the age of 18 years at the time of commission of the  alleged  offence  must

be treated in accordance with  the  Juvenile  Justice  Rules.   Mr.  Asthana

submitted that any attempt to alter the upper limit of the age  of  a  child

from 18 to 16 years would have disastrous consequences and  would  set  back

the  attempts  made  over  the  years  to  formulate   a   restorative   and

rehabilitative approach  mainly for juveniles in conflict with law.

 

  1. In Writ Petition (Civil) No.85 of  2013,  a  counter  affidavit  has

been filed on behalf  of  the  Ministry  of  Women  and  Child  Development,

Government of  India,  in  which  the  submissions  made  by  the  ASG,  Mr.

Siddharth  Luthra,  were  duly  reflected.   In  paragraph  I  of  the  said

affidavit, it has been pointed out  that  the  Juvenile  Justice  (Care  and

Protection of Children) Act, 2000, provides for a wide range of  reformative

measures under Sections 15 and 16 for children in conflict with law  –  from

simple warning to 3 years of institutionalisation in  a  Special  Home.   In

exceptional cases, provision has also been made for the juvenile to be  sent

to a place of  safety  where  intensive  rehabilitation  measures,  such  as

counselling, psychiatric evaluation and treatment would be undertaken.

 

  1. In Writ Petition (C) No.10 of 2013 filed  by  Shri  Salil  Bali,  an

application had been made  by  the  Prayas  Juvenile  Aid  Centre  (JAC),  a

Society whose Founder and General Secretary, Shri Amod  Kanth,  was  allowed

to appear and address the Court in person.  Mr. Amod Kanth claimed  that  he

was a former member of the Indian Police  Service  and  Chairperson  of  the

Delhi Commission for the  Protection  of  Child  Rights  and  was  also  the

founder General Secretary of the aforesaid  organisation,  which  came  into

existence in 1998 as a special unit  associated  with  the  Missing  Persons

Squad of the Crime and Railway Branch of the  Delhi  Police  of  which  Shri

Amod Kanth was the in-charge Deputy Commissioner of Police.  Mr. Amod  Kanth

submitted that Prayas was created in  order  to  identify  and  support  the

missing and found  persons,  including  girls,  street  migrants,  homeless,

working and delinquent children who  did  not  have  any  support  from  any

organisation in the  Government  or  in  the  non-governmental  organisation

 

  1. Mr. Kanth repeated  and  reiterated  the  submissions  made  by  the

learned ASG and Mr. Asthana and  also  highlighted  the  problems  faced  by

children both in conflict with law and in need of care and protection.   Mr.

Kanth  submitted  that  whatever  was  required   to   be   done   for   the

rehabilitation and restoration of juveniles to a normal existence has, to  a

large extent, been defeated since the various  provisions  of  the  Juvenile

Justice (Care and Protection of Children) Act, 2000 and the Rules  of  2007,

were not being seriously  implemented.   Mr.  Kanth  urged  that  after  the

ratification by India of the United Nations Convention on the Rights of  the

Child on 11th December, 1992, serious thought was given to the enactment  of

the Juvenile Justice (Care and Protection  of  Children  Act),  2000,  which

came to replace the Juvenile Justice Act, 1986.  Taking a leaf  out  of  Mr.

Asthana’s book, Mr. Kanth submitted that even after thirteen  years  of  its

existence, the provisions of the Juvenile Justice (Care  and  Protection  of

Children) Act, 2000, still remained  unimplemented  in  major  areas,  which

made  it  impossible  for  the  provisions  of  the  Act  to   be   properly

  1. Mr. Kanth submitted that one of the  more  important  features

of  juvenile  law  was  to  provide  a  child-friendly   approach   in   the

adjudication and disposition of matters in the  best  interest  of  children

and  for  their  ultimate  rehabilitation   through   various   institutions

established under the Act.  Submitting that the Juvenile Justice  (Care  and

Protection of Children) Act, 2000,  was  based  on  the  provisions  of  the

Indian Constitution, the United Nations Convention  on  the  Rights  of  the

Child, 1989, the  Beijing  Rules  and  the  United  Nations  Rules  for  the

Protection of the Juveniles Deprived  of  their  Liberty,  1990,  Mr.  Kanth

urged that the same was in  perfect  harmony  with  the  provisions  of  the

Constitution, but did not receive the attention it ought  to  have  received

while dealing with a section of the citizens of India comprising 42% of  the

country’s population.

 

  1. Various measures to deal with juveniles in conflict  with  law  have

been suggested by Mr. Kanth, which requires serious  thought  and  avoidance

of knee-jerk reactions to situations which could set a dangerous  trend  and

affect millions of children in need  of  care  and  protection.   Mr.  Kanth

submitted that any change in the law, as it now  stands,  resulting  in  the

reduction  of  age  to  define  a  juvenile,  will  not  only  prove  to  be

regressive, but would also adversely affect India’s image as a  champion  of

human rights.

 

  1. Having regard to the serious nature of the issues raised before  us,

we have given serious thought to the submissions advanced on behalf  of  the

respective parties and  also  those  advanced  on  behalf  of  certain  Non-

Government Organizations and have  also  considered  the  relevant  extracts

from the Report of Justice  J.S.  Verma  Committee  on  “Amendments  to  the

Criminal Law”  and  are  convinced  that  the  Juvenile  Justice  (Care  and

Protection of Children) Act, 2000, as amended  in  2006,  and  the  Juvenile

Justice (Care and Protection of Children) Rules, 2007, are  based  on  sound

principles recognized internationally and contained  in  the  provisions  of

the Indian Constitution.

 

  1. There is little doubt that  the  incident,  which  occurred  on  the

night of 16th December, 2012, was not only gruesome, but almost maniacal  in

its content, wherein one juvenile, whose role is yet to be established,  was

involved, but such an incident, in comparison to the vast number  of  crimes

occurring in India, makes it an aberration rather than the  Rule.   If  what

has come out from the reports of the Crimes Record  Bureau,  is  true,  then

the number of crimes committed  by  juveniles  comes  to  about  2%  of  the

country’s crime rate.

 

  1. The learned ASG along with  Mr.  Asthana  and  Mr.  Kanth,  took  us

through the history of the enactment  of  the  Juvenile  Justice  (Care  and

Protection of  Children)  Act,  2000,  and  the  Rules  subsequently  framed

thereunder in 2007.  There is a definite thought process,  which  went  into

the enactment of the aforesaid Act.  In order to appreciate the  submissions

made on behalf of the respective parties in regard to the enactment  of  the

aforesaid  Act  and  the  Rules,  it  may  be  appropriate  to  explore  the

background of the laws relating to child protection  in  India  and  in  the

rest of the world.

 

  1. It  cannot  be  questioned  that  children  are  amongst  the  most

vulnerable sections in any society.  They represent almost one-third of  the

world’s population, and unless they are provided with proper  opportunities,

the opportunity of making them grow into responsible  citizens  of  tomorrow

will slip out  of  the  hands  of  the  present  generation.   International

community has been alive  to  the  problem  for  a  long  time.   After  the

aftermath of the First World War, the League of Nations  issued  the  Geneva

Declaration of the Rights of the Child in 1924.  Following the  gross  abuse

and violence of human rights during the Second World War, which  caused  the

death of millions of people, including  children,  the  United  Nations  had

been formed in 1945 and on 10th December, 1948 adopted  and  proclaimed  the

Universal Declaration of Human Rights.   While  Articles  1  and  7  of  the

Declaration proclaimed that all human beings are  born  free  and  equal  in

dignity and rights  and  are  equal  before  the  law,  Article  25  of  the

Declaration specifically provides that motherhood  and  childhood  would  be

entitled to special care and assistance.  The growing consciousness  of  the

world community was further evidenced by the Declaration of  the  Rights  of

the Child, which came to  be  proclaimed  by  the  United  Nations  on  20th

November, 1959, in the best interests of the child.  This  was  followed  by

the Beijing Rules of 1985, the Riyadh Guidelines of  1990,  which  specially

provided guidelines for the prevention  of  juvenile  delinquency,  and  the

Havana Rules of 14th December, 1990.  The said three sets of Rules  intended

that social policies should be  evolved  and  applied  to  prevent  juvenile

delinquency, to  establish  a  Juvenile  Justice  System  for  juveniles  in

conflict with law, to safeguard fundamental rights and to establish  methods

for social re-integration of young people who had suffered incarceration  in

prison or other corrective institutions.  One of the other principles  which

was sought to be reiterated and adopted was that a juvenile should be  dealt

with for an offence in a manner which  is  different  from  an  adult.   The

Beijing Rules indicated that efforts should be made by member  countries  to

establish within their own national jurisdiction, a set of  laws  and  rules

specially applicable to juvenile offenders.  It was stated that the  age  of

criminal responsibility in legal systems that recognize the concept  of  the

age of criminal responsibility for juveniles should not be fixed at too  low

an age-level,  keeping  in  mind  the  emotional,  mental  and  intellectual

maturity of children.

 

  1. Four years after the adoption  of  the  Beijing  Rules,  the  United

Nations adopted  the  Convention  on  the  Rights  of  the  Child  vide  the

Resolution of the General Assembly No.  44/25  dated  20th  November,  1989,

which came into  force  on  2nd  September,  1990.   India  is  not  only  a

signatory to the said Convention, but has also ratified  the  same  on  11th

December, 1992.  The said Convention sowed the seeds  of  the  enactment  of

the Juvenile Justice (Care and Protection of Children)  Act,  2000,  by  the

Indian Parliament.

 

  1. India developed its own jurisprudence relating to children  and  the

recognition of their rights.  With the adoption of the Constitution on  26th

November 1949, constitutional safeguards, as far as weaker sections  of  the

society, including  children,  were  provided  for.   The  Constitution  has

guaranteed several rights to children, such  as  equality  before  the  law,

free and compulsory primary education to children between the age  group  of

six to fourteen years, prohibition  of  trafficking  and  forced  labour  of

children and  prohibition  of  employment  of  children  below  the  age  of

fourteen  years  in  factories,  mines  or   hazardous   occupations.    The

Constitution enables the State Governments to make  special  provisions  for

  1. To prevent female foeticide,  the  Pre-conception  and  Pre-natal

Diagnostic Techniques (Prohibition of Sex  Selection)  Act  was  enacted  in

  1. One of the latest enactments  by  Parliament  is  the  Protection  of

Children from Sexual Offences Act, 2012.

 

  1. The Juvenile Justice (Care and Protection of  Children)  Act,  2000,

is in  tune  with  the  provisions  of  the  Constitution  and  the  various

Declarations and Conventions adopted by the world community  represented  by

the United Nations.  The basis of fixing of  the  age  till  when  a  person

could be treated as a child at eighteen years in the Juvenile Justice  (Care

and Protection of Children) Act, 2000, was Article 1 of  the  Convention  of

the Rights of the Child, as was brought to our notice  during  the  hearing.

Of course, it has been submitted by  Dr.  Kishor  that  the  description  in

Article 1 of the Convention was a contradiction in terms.   While  generally

treating eighteen to be the age till which a person could be treated  to  be

a child, it also indicates that the same was variable  where  national  laws

recognize the age of majority earlier.  In this regard,  one  of  the  other

considerations which weighed with the  legislation  in  fixing  the  age  of

understanding at eighteen years is on account of the  scientific  data  that

indicates that the brain continues to develop and  the  growth  of  a  child

continues till he reaches at least the age of eighteen years and that it  is

at that point of time  that  he  can  be  held  fully  responsible  for  his

  1. Along with physical growth, mental growth  is  equally  important,

in assessing the maturity of a person below the age of eighteen  years.   In

this connection, reference may be made to the chart provided by  Mr.  Kanth,

wherein the various laws relating to children generally  recognize  eighteen

years to be the age for reckoning a person as a  juvenile/  child  including

criminal offences.

 

  1. In any event, in the absence of any proper data,  it  would  not  be

wise on our part to deviate from the  provisions  of  the  Juvenile  Justice

(Care and Protection of Children) Act, 2000, which represent the  collective

wisdom of Parliament.  It may not be out of place to  mention  that  in  the

Juvenile Justice Act, 1986, male children above the  age  of  sixteen  years

were considered to be adults, whereas girl children were treated  as  adults

on attaining the age of eighteen years.  In the Juvenile Justice  (Care  and

Protection of Children)  Act,  2000,  a  conscious  decision  was  taken  by

Parliament to raise the age of male juveniles/children to eighteen years.

 

  1. In recent years, there has been a spurt in  criminal  activities  by

adults, but not so by juveniles, as the materials produced before  us  show.

The age limit which was  raised  from  sixteen  to  eighteen  years  in  the

Juvenile Justice (Care and Protection of Children) Act, 2000, is a  decision

which was taken by the Government, which is strongly in favour of  retaining

Sections 2(k) and 2(l) in the manner in  which  it  exists  in  the  Statute

 

  1. One misunderstanding of  the  law  relating  to  the  sentencing  of

juveniles, needs to be corrected.  The general understanding of  a  sentence

that can be awarded to a juvenile under Section 15(1)(g)  of  the   Juvenile

Justice (Care and Protection of Children) Act, 2000, prior to its  amendment

in 2006, is that after attaining the age of eighteen years, a  juvenile  who

is found guilty of a  heinous  offence  is  allowed  to  go  free.   Section

15(1)(g), as it stood before  the  amendment  came  into  effect  from  22nd

August, 2006, reads as follows:

 

“15(1)(g)    make an order directing the juvenile to be sent  to

a special home for a period of three years:

 

 

(i) in case of juvenile, over  seventeen  years  but  less  than

eighteen years of age, for a period of not less than two years;

 

 

(ii) in case of any other  juvenile  for  the  period  until  he

ceases to be a juvenile:

 

 

Provided that the Board may, if it is satisfied that having

regard to the nature of the offence and the circumstances of the

case, it is expedient so to do,  for  reasons  to  be  recorded,

reduce the period of stay to such period as it thinks fit.”

 

 

 

 

It was generally perceived that a juvenile was free to go,  even  if

he had committed a heinous crime, when he ceased to be a juvenile.

 

The said understanding needs to  be  clarified  on  account  of  the

amendment which came into force with effect  from  22.8.2006,  as  a  result

whereof Section 15(1)(g) now reads as follows:

 

“Make an order directing the juvenile to be sent  to  a  special

home for a period of three years:

 

 

Provided that the Board may if it is satisfied that  having

regard to the nature of the offence and the circumstances of the

case, it is expedient so to  do,  for  reasons  to  be  recorded

reduce the period of stay to such period as it thinks fit.”

 

 

 

The aforesaid amendment now makes it clear that even if  a  juvenile

attains the age of eighteen years within a  period  of  one  year  he  would

still have to undergo a sentence of three years, which  could  spill  beyond

the period of one year when he attained majority.

 

  1. There is yet another consideration which  appears  to  have  weighed

with the worldwide community, including India, to  retain  eighteen  as  the

upper limit to which persons could be treated  as  children.   In  the  Bill

brought in Parliament for  enactment  of  the  Juvenile  Justice  (Care  and

Protection of Children) Act of 2000, it has been  indicated  that  the  same

was being  introduced  to  provide  for  the  care,  protection,  treatment,

development and rehabilitation of neglected or delinquent juveniles and  for

the  adjudication  of  certain  matters  relating  to  and  disposition   of

delinquent juveniles.   The  essence  of  the  Juvenile  Justice  (Care  and

Protection of Children) Act, 2000, and the Rules framed thereunder in  2007,

is restorative and not retributive, providing  for  rehabilitation  and  re-

integration of children in conflict with law into mainstream  society.   The

age of eighteen has been fixed on account of the  understanding  of  experts

in child psychology and behavioural patterns  that  till  such  an  age  the

children in conflict with law  could  still  be  redeemed  and  restored  to

mainstream society,  instead  of  becoming  hardened  criminals  in  future.

There are, of course, exceptions where a child in the age group  of  sixteen

to eighteen may have developed criminal propensities, which  would  make  it

virtually  impossible  for  him/her  to  be  re-integrated  into  mainstream

society, but such examples are not of such proportions  as  to  warrant  any

change in thinking, since it is probably  better  to  try  and  re-integrate

children with criminal propensities into mainstream society, rather than  to

allow them to develop into hardened criminals, which  does  not  augur  well

for the future.

 

  1. This being the understanding of the Government behind the  enactment

of the Juvenile Justice (Care and Protection of  Children)  Act,  2000,  and

the amendments effected thereto in 2006,  together  with  the  Rules  framed

thereunder in 2007, and the data available with regard to the commission  of

heinous offences by children, within the meaning of Sections 2(k)  and  2(l)

of the Juvenile Justice (Care and Protection of Children) Act, 2000,  we  do

not think that any interference is necessary  with  the  provisions  of  the

Statute till such time as  sufficient  data  is  available  to  warrant  any

change in the provisions of the aforesaid Act and the Rules.  On  the  other

hand, the implementation of the various  enactments  relating  to  children,

would possibly yield better results.

 

  1. The  Writ  Petitions  and  the  Transferred  Case  are,  therefore,

dismissed, with the aforesaid observations.  There  shall,  however,  be  no

order as to costs.

 

 

 

…………………………………………………CJI.

(ALTAMAS KABIR)

 

 

 

 

………………………………………………………J.

(SURINDER SINGH NIJJAR)

 

 

 

 

………………………………………………………J.

(J. CHELAMESWAR)

 

 

 

Third Gender in India land mark judgement by Supreme Court of India.

 

HISTORICAL BACKGROUND OF TRANSGENDERS IN INDIA:

 TG Community comprises of Hijras, eunuchs, Kothis, Aravanis,
Jogappas, Shiv-Shakthis etc. and they, as a group, have got a strong
historical presence in our country in the Hindu mythology and other
religious texts. The Concept of tritiya prakrti or napunsaka has also
been an integral part of vedic and puranic literatures. The word
‘napunsaka’ has been used to denote absence of procreative capability.
13. Lord Rama, in the epic Ramayana, was leaving for the forest upon
being banished from the kingdom for 14 years, turns around to his followers
and asks all the ‘men and women’ to return to the city. Among his
followers, the hijras alone do not feel bound by this direction and decide
to stay with him. Impressed with their devotion, Rama sanctions them the
power to confer blessings on people on auspicious occasions like childbirth
and marriage, and also at inaugural functions which, it is believed set the
stage for the custom of badhai in which hijras sing, dance and confer
blessings.

 

 THE RIGHT TO RECOGNITION BEFORE THE LAW
Everyone has the right to recognition everywhere as a person before
the law. Persons of diverse sexual orientations and gender identities
shall enjoy legal capacity in all aspects of life. Each person’s self-
defined sexual orientation and gender identity is integral to their
personality and is one of the most basic aspects of self-
determination, dignity and freedom. No one shall be forced to undergo
medical procedures, including sex reassignment surgery, sterilisation
or hormonal therapy, as a requirement for legal recognition of their
gender identity. No status, such as marriage or parenthood, may be
invoked as such to prevent the legal recognition of a person’s gender
identity. No one shall be subjected to pressure to conceal, suppress
or deny their sexual orientation or gender identity.
States shall:
A. Ensure that all persons are accorded legal capacity in civil
matters, without discrimination on the basis of sexual orientation
or gender identity, and the opportunity to exercise that capacity,
including equal rights to conclude contracts, and to administer,
own, acquire (including through inheritance), manage, enjoy and
dispose of property;
B. Take all necessary legislative, administrative and other measures
to fully respect and legally recognise each person’s self-defined
gender identity;
C. Take all necessary legislative, administrative and other measures
to ensure that procedures exist whereby all State-issued identity
papers which indicate a person’s gender/sex — including birth
certificates, passports, electoral records and other documents —
reflect the person’s profound self-defined gender identity;
D. Ensure that such procedures are efficient, fair and non-
discriminatory, and respect the dignity and privacy of the person
concerned;
E. Ensure that changes to identity documents will be recognised in all
contexts where the identification or disaggregation of persons by
gender is required by law or policy;
F. Undertake targeted programmes to provide social support for all
persons experiencing gender transitioning or reassignment.

 

ARTICLE 14 AND TRANSGENDERS

Article 14 of the Constitution of India states that the State shall
not deny to “any person” equality before the law or the equal protection of
the laws within the territory of India. Equality includes the full and
equal enjoyment of all rights and freedom. Right to equality has been
declared as the basic feature of the Constitution and treatment of equals
as unequals or unequals as equals will be violative of the basic structure
of the Constitution. Article 14 of the Constitution also ensures equal
protection and hence a positive obligation on the State to ensure equal
protection of laws by bringing in necessary social and economic changes, so
that everyone including TGs may enjoy equal protection of laws and nobody
is denied such protection. Article 14 does not restrict the word ‘person’
and its application only to male or female. Hijras/transgender persons who
are neither male/female fall within the expression ‘person’ and, hence,
entitled to legal protection of laws in all spheres of State activity,
including employment, healthcare, education as well as equal civil and
citizenship rights, as enjoyed by any other citizen of this country.

ARTICLES 15 & 16 AND TRANSGENDERS

Articles 15 and 16 prohibit discrimination against any citizen on
certain enumerated grounds, including the ground of ‘sex’. In fact, both
the Articles prohibit all forms of gender bias and gender based
discrimination.

Article 15 states that the State shall not discriminate against any
citizen, inter alia, on the ground of sex, with regard to
(a) access to shops, public restaurants, hotels and places of public
entertainment; or
(b) use of wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated to the use
of the general public.
The requirement of taking affirmative action for the advancement of
any socially and educationally backward classes of citizens is also
provided in this Article.

ARTICLE 19(1)(a) AND TRANSGENDERS

Article 19(1) of the Constitution guarantees certain fundamental
rights, subject to the power of the State to impose restrictions from
exercise of those rights. The rights conferred by Article 19 are not
available to any person who is not a citizen of India. Article 19(1)
guarantees those great basic rights which are recognized and guaranteed as
the natural rights inherent in the status of the citizen of a free country.
Article 19(1) (a) of the Constitution states that all citizens shall have
the right to freedom of speech and expression, which includes one’s right
to expression of his self-identified gender. Self-identified gender can be
expressed through dress, words, action or behavior or any other form. No
restriction can be placed on one’s personal appearance or choice of
dressing, subject to the restrictions contained in Article 19(2) of the
Constitution.

ARTICLE 21 AND THE TRANSGENDERS

67. Article 21 of the Constitution of India reads as follows:
“21. Protection of life and personal liberty – No person shall be
deprived of his life or personal liberty except according to procedure
established by law.”

Article 21 is the heart and soul of the Indian Constitution, which
speaks of the rights to life and personal liberty. Right to life is one
of the basic fundamental rights and not even the State has the authority to
violate or take away that right. Article 21 takes all those aspects of
life which go to make a person’s life meaningful. Article 21 protects the
dignity of human life, one’s personal autonomy, one’s right to privacy,
etc. Right to dignity has been recognized to be an essential part of the
right to life and accrues to all persons on account of being humans.

 

 

 

——————————————————————————————————————————————————————————————————

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.400 OF 2012
National Legal Services Authority … Petitioner
Versus
Union of India and others … Respondents
WITH
WRIT PETITION (CIVIL) NO.604 OF 2013
J U D G M E N T
K.S. Radhakrishnan, J.
1. Seldom, our society realizes or cares to realize the trauma, agony
and pain which the members of Transgender community undergo, nor
appreciates the innate feelings of the members of the Transgender
community, especially of those whose mind and body disown their biological
sex. Our society often ridicules and abuses the Transgender community and
in public places like railway stations, bus stands, schools, workplaces,
malls, theatres, hospitals, they are sidelined and treated as untouchables,
forgetting the fact that the moral failure lies in the society’s
unwillingness to contain or embrace different gender identities and
expressions, a mindset which we have to change.

2. We are, in this case, concerned with the grievances of the members of
Transgender Community (for short ‘TG community’) who seek a legal
declaration of their gender identity than the one assigned to them, male or
female, at the time of birth and their prayer is that non-recognition of
their gender identity violates Articles 14 and 21 of the Constitution of
India. Hijras/Eunuchs, who also fall in that group, claim legal status as
a third gender with all legal and constitutional protection.

3. The National Legal Services Authority, constituted under the Legal
Services Authority Act, 1997, to provide free legal services to the weaker
and other marginalized sections of the society, has come forward to
advocate their cause, by filing Writ Petition No. 400 of 2012. Poojaya
Mata Nasib Kaur Ji Women Welfare Society, a registered association, has
also preferred Writ Petition No. 604 of 2013, seeking similar reliefs in
respect of Kinnar community, a TG community.

4. Laxmi Narayan Tripathy, claimed to be a Hijra, has also got impleaded
so as to effectively put across the cause of the members of the transgender
community and Tripathy’s life experiences also for recognition of their
identity as a third gender, over and above male and female. Tripathy says
that non-recognition of the identity of Hijras, a TG community, as a third
gender, denies them the right of equality before the law and equal
protection of law guaranteed under Article 14 of the Constitution and
violates the rights guaranteed to them under Article 21 of the Constitution
of India.

5. Shri Raju Ramachandran, learned senior counsel appearing for the
petitioner – the National Legal Services Authority, highlighted the
traumatic experiences faced by the members of the TG community and
submitted that every person of that community has a legal right to decide
their sex orientation and to espouse and determine their identity. Learned
senior counsel has submitted that since the TGs are neither treated as male
or female, nor given the status of a third gender, they are being deprived
of many of the rights and privileges which other persons enjoy as citizens
of this country. TGs are deprived of social and cultural participation and
hence restricted access to education, health care and public places which
deprives them of the Constitutional guarantee of equality before law and
equal protection of laws. Further, it was also pointed out that the
community also faces discrimination to contest election, right to vote,
employment, to get licences etc. and, in effect, treated as an outcast and
untouchable. Learned senior counsel also submitted that the State cannot
discriminate them on the ground of gender, violating Articles 14 to 16 and
21 of the Constitution of India.

6. Shri Anand Grover, learned senior counsel appearing for the
Intervener, traced the historical background of the third gender identity
in India and the position accorded to them in the Hindu Mythology, Vedic
and Puranic literatures, and the prominent role played by them in the royal
courts of the Islamic world etc. Reference was also made to the repealed
Criminal Tribes Act, 1871 and explained the inhuman manner by which they
were treated at the time of the British Colonial rule. Learned senior
counsel also submitted that various International Forums and U.N. Bodies
have recognized their gender identity and referred to the Yogyakarta
Principles and pointed out that those principles have been recognized by
various countries around the world. Reference was also made to few
legislations giving recognition to the trans-sexual persons in other
countries. Learned senior counsel also submitted that non-recognition of
gender identity of the transgender community violates the fundamental
rights guaranteed to them, who are citizens of this country.

7. Shri T. Srinivasa Murthy, learned counsel appearing in I.A. No. 2 of
2013, submitted that transgender persons have to be declared as a socially
and educationally backward classes of citizens and must be accorded all
benefits available to that class of persons, which are being extended to
male and female genders. Learned counsel also submitted that the right to
choose one’s gender identity is integral to the right to lead a life with
dignity, which is undoubtedly guaranteed by Article 21 of the Constitution
of India. Learned counsel, therefore, submitted that, subject to such
rules/regulations/protocols, transgender persons may be afforded the right
of choice to determine whether to opt for male, female or transgender
classification.

8. Shri Sanjeev Bhatnagar, learned counsel appearing for the petitioner
in Writ Petition No.604 of 2013, highlighted the cause of the Kinnar
community and submitted that they are the most deprived group of
transgenders and calls for constitutional as well as legal protection for
their identity and for other socio-economic benefits, which are otherwise
extended to the members of the male and female genders in the community.

9. Shri Rakesh K. Khanna, learned Additional Solicitor General,
appearing for the Union of India, submitted that the problems highlighted
by the transgender community is a sensitive human issue, which calls for
serious attention. Learned ASG pointed out that, under the aegis of the
Ministry of Social Justice and Empowerment (for short “MOSJE”), a
Committee, called “Expert Committee on Issues relating to Transgender”,
has been constituted to conduct an in-depth study of the problems relating
to transgender persons to make appropriate recommendations to MOSJE. Shri
Khanna also submitted that due representation would also be given to the
applicants, appeared before this Court in the Committee, so that their
views also could be heard.

10. We also heard learned counsel appearing for various States and Union
Territories who have explained the steps they have taken to improve the
conditions and status of the members of TG community in their respective
States and Union Territories. Laxmi Narayan Tripathy, a Hijra, through a
petition supported by an affidavit, highlighted the trauma undergone by
Tripathy from Tripathy’s birth. Rather than explaining the same by us, it
would be appropriate to quote in Tripathy’s own words:
“That the Applicant has born as a male. Growing up as a child, she
felt different from the boys of her age and was feminine in her ways.
On account of her femininity, from an early age, she faced repeated
sexual harassment, molestation and sexual abuse, both within and
outside the family. Due to her being different, she was isolated and
had no one to talk to or express her feelings while she was coming to
terms with her identity. She was constantly abused by everyone as a
‘chakka’ and ‘hijra’. Though she felt that there was no place for
her in society, she did not succumb to the prejudice. She started to
dress and appear in public in women’s clothing in her late teens but
she did not identify as a woman. Later, she joined the Hijra
community in Mumbai as she identified with the other hijras and for
the first time in her life, she felt at home.
That being a hijra, the Applicant has faced serious discrimination
throughout her life because of her gender identity. It has been clear
to the Applicant that the complete non-recognition of the identity of
hijras/transgender persons by the State has resulted in the violation
of most of the fundamental rights guaranteed to them under the
Constitution of India….”

Siddarth Narrain, eunuch, highlights Narrain’s feeling, as follows:
”Ever since I can remember, I have always identified myself as a
woman. I lived in Namakkal, a small town in Tamil Nadu. When I was
in the 10th standard I realized that the only way for me to be
comfortable was to join the hijra community. It was then that my
family found out that I frequently met hijras who lived in the city.
One day, when my father was away, my brother, encouraged by my mother,
started beating me with a cricket bat. I locked myself in a room to
escape from the beatings. My mother and brother then tried to break
into the room to beat me up further. Some of my relatives intervened
and brought me out of the room. I related my ordeal to an uncle of
mine who gave me Rs.50 and asked me to go home. Instead, I took the
money and went to live with a group of hijras in Erode.”

Sachin, a TG, expressed his experiences as follows:
“My name is Sachin and I am 23 years old. As a child I always
enjoyed putting make-up like ‘vibhuti’ or ‘kum kum’ and my parents
always saw me as a girl. I am male but I only have female feelings.
I used to help my mother in all the housework like cooking, washing
and cleaning. Over the years, I started assuming more of the domestic
responsibilities at home. The neighbours starting teasing me. They
would call out to me and ask: ‘Why don’t you go out and work like a
man?’ or ‘Why are you staying at home like a girl?’ But I liked
being a girl. I felt shy about going out and working. Relatives
would also mock and scold me on this score. Every day I would go out
of the house to bring water. And as I walked back with the water I
would always be teased. I felt very ashamed. I even felt suicidal.
How could I live like that? But my parents never protested. They
were helpless.”
We have been told and informed of similar life experiences faced by
various others who belong to the TG community.

11. Transgender is generally described as an umbrella term for
persons whose gender identity, gender expression or behavior does not
conform to their biological sex. TG may also takes in persons who do not
identify with their sex assigned at birth, which include Hijras/Eunuchs
who, in this writ petition, describe themselves as “third gender” and they
do not identify as either male or female. Hijras are not men by virtue of
anatomy appearance and psychologically, they are also not women, though
they are like women with no female reproduction organ and no menstruation.
Since Hijras do not have reproduction capacities as either men or women,
they are neither men nor women and claim to be an institutional “third
gender”. Among Hijras, there are emasculated (castrated, nirvana) men, non-
emasculated men (not castrated/akva/akka) and inter-sexed persons
(hermaphrodites). TG also includes persons who intend to undergo Sex Re-
Assignment Surgery (SRS) or have undergone SRS to align their biological
sex with their gender identity in order to become male or female. They are
generally called transsexual persons. Further, there are persons who like
to cross-dress in clothing of opposite gender, i.e transvestites.
Resultantly, the term “transgender”, in contemporary usage, has become an
umbrella term that is used to describe a wide range of identities and
experiences, including but not limited to pre-operative, post-operative and
non-operative transsexual people, who strongly identify with the gender
opposite to their biological sex; male and female.

HISTORICAL BACKGROUND OF TRANSGENDERS IN INDIA:
12. TG Community comprises of Hijras, eunuchs, Kothis, Aravanis,
Jogappas, Shiv-Shakthis etc. and they, as a group, have got a strong
historical presence in our country in the Hindu mythology and other
religious texts. The Concept of tritiya prakrti or napunsaka has also
been an integral part of vedic and puranic literatures. The word
‘napunsaka’ has been used to denote absence of procreative capability.
13. Lord Rama, in the epic Ramayana, was leaving for the forest upon
being banished from the kingdom for 14 years, turns around to his followers
and asks all the ‘men and women’ to return to the city. Among his
followers, the hijras alone do not feel bound by this direction and decide
to stay with him. Impressed with their devotion, Rama sanctions them the
power to confer blessings on people on auspicious occasions like childbirth
and marriage, and also at inaugural functions which, it is believed set the
stage for the custom of badhai in which hijras sing, dance and confer
blessings.

14. Aravan, the son of Arjuna and Nagakanya in Mahabharata, offers to be
sacrificed to Goddess Kali to ensure the victory of the Pandavas in the
Kurukshetra war, the only condition that he made was to spend the last
night of his life in matrimony. Since no woman was willing to marry one
who was doomed to be killed, Krishna assumes the form of a beautiful woman
called Mohini and marries him. The Hijras of Tamil Nadu consider Aravan
their progenitor and call themselves Aravanis.
15. Jain Texts also make a detailed reference to TG which mentions the
concept of ‘psychological sex’. Hijras also played a prominent role in the
royal courts of the Islamic world, especially in the Ottaman empires and
the Mughal rule in the Medieval India. A detailed analysis of the
historical background of the same finds a place in the book of Gayatri
Reddy, “With Respect to Sex: Negotiating Hijra Identity in South India” –
Yoda Press (2006).
16. We notice that even though historically, Hijras/transgender persons
had played a prominent role, with the onset of colonial rule from the 18th
century onwards, the situation had changed drastically. During the
British rule, a legislation was enacted to supervise the deeds of Hijras/TG
community, called the Criminal Tribes Act, 1871, which deemed the entire
community of Hijras persons as innately ‘criminal’ and ‘addicted to the
systematic commission of non-bailable offences’. The Act provided for
the registration, surveillance and control of certain criminal tribes and
eunuchs and had penalized eunuchs, who were registered, and appeared to be
dressed or ornamented like a woman, in a public street or place, as well as
those who danced or played music in a public place. Such persons also
could be arrested without warrant and sentenced to imprisonment up to two
years or fine or both. Under the Act, the local government had to
register the names and residence of all eunuchs residing in that area as
well as of their properties, who were reasonably suspected of kidnapping or
castrating children, or of committing offences under Section 377 of the
IPC, or of abetting the commission of any of the said offences. Under the
Act, the act of keeping a boy under 16 years in the charge of a registered
eunuch was made an offence punishable with imprisonment up to two years or
fine and the Act also denuded the registered eunuchs of their civil rights
by prohibiting them from acting as guardians to minors, from making a gift
deed or a will, or from adopting a son. Act has, however, been repealed in
August 1949.

17. Section 377 of the IPC found a place in the Indian Penal Code, 1860,
prior to the enactment of Criminal Tribles Act that criminalized all penile-
non-vaginal sexual acts between persons, including anal sex and oral sex,
at a time when transgender persons were also typically associated with the
prescribed sexual practices. Reference may be made to the judgment of the
Allahabad High Court in Queen Empress v. Khairati (1884) ILR 6 All 204,
wherein a transgender person was arrested and prosecuted under Section 377
on the suspicion that he was a ‘habitual sodomite’ and was later acquitted
on appeal. In that case, while acquitting him, the Sessions Judge stated
as follows:
“This case relates to a person named Khairati, over whom the police
seem to have exercised some sort of supervision, whether strictly
regular or not, as a eunuch. The man is not a eunuch in the literal
sense, but he was called for by the police when on a visit to his
village, and was found singing dressed as a woman among the women of a
certain family. Having been subjected to examination by the Civil
Surgeon (and a subordinate medical man), he is shown to have the
characteristic mark of a habitual catamite – the distortion of the
orifice of the anus into the shape of a trumpet and also to be
affected with syphilis in the same region in a manner which distinctly
points to unnatural intercourse within the last few months.”
18. Even though, he was acquitted on appeal, this case would demonstrate
that Section 377, though associated with specific sexual acts, highlighted
certain identities, including Hijras and was used as an instrument of
harassment and physical abuse against Hijras and transgender persons. A
Division Bench of this Court in Suresh Kumar Koushal and another v. Naz
Foundation and others [(2014) 1 SCC 1] has already spoken on the
constitutionality of Section 377 IPC and, hence, we express no opinion on
it since we are in these cases concerned with an altogether different issue
pertaining to the constitutional and other legal rights of the transgender
community and their gender identity and sexual orientation.

GENDER IDENTITY AND SEXUAL ORIENTATION

19. Gender identity is one of the most-fundamental aspects of life which
refers to a person’s intrinsic sense of being male, female or transgender
or transsexual person. A person’s sex is usually assigned at birth, but a
relatively small group of persons may born with bodies which incorporate
both or certain aspects of both male and female physiology. At times,
genital anatomy problems may arise in certain persons, their innate
perception of themselves, is not in conformity with the sex assigned to
them at birth and may include pre and post-operative transsexual persons
and also persons who do not choose to undergo or do not have access to
operation and also include persons who cannot undergo successful operation.
Countries, all over the world, including India, are grappled with the
question of attribution of gender to persons who believe that they belong
to the opposite sex. Few persons undertake surgical and other procedures
to alter their bodies and physical appearance to acquire gender
characteristics of the sex which conform to their perception of gender,
leading to legal and social complications since official record of their
gender at birth is found to be at variance with the assumed gender
identity. Gender identity refers to each person’s deeply felt internal and
individual experience of gender, which may or may not correspond with the
sex assigned at birth, including the personal sense of the body which may
involve a freely chosen, modification of bodily appearance or functions by
medical, surgical or other means and other expressions of gender, including
dress, speech and mannerisms. Gender identity, therefore, refers to an
individual’s self-identification as a man, woman, transgender or other
identified category.

20. Sexual orientation refers to an individual’s enduring physical,
romantic and/or emotional attraction to another person. Sexual orientation
includes transgender and gender-variant people with heavy sexual
orientation and their sexual orientation may or may not change during or
after gender transmission, which also includes homo-sexuals, bysexuals,
heterosexuals, asexual etc. Gender identity and sexual orientation, as
already indicated, are different concepts. Each person’s self-defined
sexual orientation and gender identity is integral to their personality and
is one of the most basic aspects of self-determination, dignity and freedom
and no one shall be forced to undergo medical procedures, including SRS,
sterilization or hormonal therapy, as a requirement for legal recognition
of their gender identity.

UNITED NATIONS AND OTHER HUMAN RIGHTS BODIES – ON GENDER IDENTITY AND
SEXUAL ORIENTATION
21. United Nations has been instrumental in advocating the protection and
promotion of rights of sexual minorities, including transgender persons.
Article 6 of the Universal Declaration of Human Rights, 1948 and Article 16
of the International Covenant on Civil and Political Rights, 1966 (ICCPR)
recognize that every human being has the inherent right to live and this
right shall be protected by law and that no one shall be arbitrarily denied
of that right. Everyone shall have a right to recognition, everywhere as a
person before the law. Article 17 of the ICCPR states that no one shall
be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and
reputation and that everyone has the right to protection of law against
such interference or attacks. International Commission of Jurists and the
International Service for Human Rights on behalf of a coalition of human
rights organizations, took a project to develop a set of international
legal principles on the application of international law to human rights
violations based on sexual orientation and sexual identity to bring greater
clarity and coherence to State’s human rights obligations. A
distinguished group of human rights experts has drafted, developed,
discussed and reformed the principles in a meeting held at Gadjah Mada
University in Yogyakarta, Indonesia from 6 to 9 November, 2006, which is
unanimously adopted the Yogyakarta Principles on the application of
International Human Rights Law in relation to Sexual Orientation and Gender
Identity. Yogyakarta Principles address a broad range of human rights
standards and their application to issues of sexual orientation gender
identity. Reference to few Yogyakarta Principles would be useful.

YOGYAKARTA PRINCIPLES:
22. Principle 1 which deals with the right to the universal enjoyment of
human rights, reads as follows :-
“1. THE RIGHT TO THE UNIVERSAL ENJOYMENT OF HUMAN RIGHTS
All human beings are born free and equal in dignity and rights. Human
beings of all sexual orientations and gender identities are entitled
to the full enjoyment of all human rights.
States shall:
A. Embody the principles of the universality, interrelatedness,
interdependence and indivisibility of all human rights in their
national constitutions or other appropriate legislation and
ensure the practical realisation of the universal enjoyment of
all human rights;
B. Amend any legislation, including criminal law, to ensure its
consistency with the universal enjoyment of all human rights;
C. Undertake programmes of education and awareness to promote and
enhance the full enjoyment of all human rights by all persons,
irrespective of sexual orientation or gender identity;
D. Integrate within State policy and decision-making a pluralistic
approach that recognises and affirms the interrelatedness and
indivisibility of all aspects of human identity including sexual
orientation and gender identity.
2. THE RIGHTS TO EQUALITY AND NON-DISCRIMINATION
Everyone is entitled to enjoy all human rights without discrimination
on the basis of sexual orientation or gender identity. Everyone is
entitled to equality before the law and the equal protection of the
law without any such discrimination whether or not the enjoyment of
another human right is also affected. The law shall prohibit any such
discrimination and guarantee to all persons equal and effective
protection against any such discrimination.
Discrimination on the basis of sexual orientation or gender identity
includes any distinction, exclusion, restriction or preference based
on sexual orientation or gender identity which has the purpose or
effect of nullifying or impairing equality before the law or the equal
protection of the law, or the recognition, enjoyment or exercise, on
an equal basis, of all human rights and fundamental freedoms.
Discrimination based on sexual orientation or gender identity may be,
and commonly is, compounded by discrimination on other grounds
including gender, race, age, religion, disability, health and economic
status.
States shall:
A. Embody the principles of equality and non-discrimination on the
basis of sexual orientation and gender identity in their national
constitutions or other appropriate legislation, if not yet
incorporated therein, including by means of amendment and
interpretation, and ensure the effective realisation of these
principles;
B. Repeal criminal and other legal provisions that prohibit or are, in
effect, employed to prohibit consensual sexual activity among
people of the same sex who are over the age of consent, and ensure
that an equal age of consent applies to both same-sex and different-
sex sexual activity;
C. Adopt appropriate legislative and other measures to prohibit and
eliminate discrimination in the public and private spheres on the
basis of sexual orientation and gender identity;
D. Take appropriate measures to secure adequate advancement of persons
of diverse sexual orientations and gender identities as may be
necessary to ensure such groups or individuals equal enjoyment or
exercise of human rights. Such measures shall not be deemed to be
discriminatory;
E. In all their responses to discrimination on the basis of sexual
orientation or gender identity, take account of the manner in which
such discrimination may intersect with other forms of
discrimination;
F. Take all appropriate action, including programmes of education and
training, with a view to achieving the elimination of prejudicial
or discriminatory attitudes or behaviours which are related to the
idea of the inferiority or the superiority of any sexual
orientation or gender identity or gender expression.
3. THE RIGHT TO RECOGNITION BEFORE THE LAW
Everyone has the right to recognition everywhere as a person before
the law. Persons of diverse sexual orientations and gender identities
shall enjoy legal capacity in all aspects of life. Each person’s self-
defined sexual orientation and gender identity is integral to their
personality and is one of the most basic aspects of self-
determination, dignity and freedom. No one shall be forced to undergo
medical procedures, including sex reassignment surgery, sterilisation
or hormonal therapy, as a requirement for legal recognition of their
gender identity. No status, such as marriage or parenthood, may be
invoked as such to prevent the legal recognition of a person’s gender
identity. No one shall be subjected to pressure to conceal, suppress
or deny their sexual orientation or gender identity.
States shall:
A. Ensure that all persons are accorded legal capacity in civil
matters, without discrimination on the basis of sexual orientation
or gender identity, and the opportunity to exercise that capacity,
including equal rights to conclude contracts, and to administer,
own, acquire (including through inheritance), manage, enjoy and
dispose of property;
B. Take all necessary legislative, administrative and other measures
to fully respect and legally recognise each person’s self-defined
gender identity;
C. Take all necessary legislative, administrative and other measures
to ensure that procedures exist whereby all State-issued identity
papers which indicate a person’s gender/sex — including birth
certificates, passports, electoral records and other documents —
reflect the person’s profound self-defined gender identity;
D. Ensure that such procedures are efficient, fair and non-
discriminatory, and respect the dignity and privacy of the person
concerned;
E. Ensure that changes to identity documents will be recognised in all
contexts where the identification or disaggregation of persons by
gender is required by law or policy;
F. Undertake targeted programmes to provide social support for all
persons experiencing gender transitioning or reassignment.
4. THE RIGHT TO LIFE
Everyone has the right to life. No one shall be arbitrarily deprived
of life, including by reference to considerations of sexual
orientation or gender identity. The death penalty shall not be imposed
on any person on the basis of consensual sexual activity among persons
who are over the age of consent or on the basis of sexual orientation
or gender identity.
States shall:
A. Repeal all forms of crime that have the purpose or effect of
prohibiting consensual sexual activity among persons of the same
sex who are over the age of consent and, until such provisions are
repealed, never impose the death penalty on any person convicted
under them;
B. Remit sentences of death and release all those currently awaiting
execution for crimes relating to consensual sexual activity among
persons who are over the age of consent;
C. Cease any State-sponsored or State-condoned attacks on the lives
of persons based on sexual orientation or gender identity, and
ensure that all such attacks, whether by government officials or by
any individual or group, are vigorously investigated, and that,
where appropriate evidence is found, those responsible are
prosecuted, tried and duly punished.
6. THE RIGHT TO PRIVACY
Everyone, regardless of sexual orientation or gender identity, is
entitled to the enjoyment of privacy without arbitrary or unlawful
interference, including with regard to their family, home or
correspondence as well as to protection from unlawful attacks on their
honour and reputation. The right to privacy ordinarily includes the
choice to disclose or not to disclose information relating to one’s
sexual orientation or gender identity, as well as decisions and
choices regarding both one’s own body and consensual sexual and other
relations with others.
States shall:
A. Take all necessary legislative, administrative and other measures
to ensure the right of each person, regardless of sexual
orientation or gender identity, to enjoy the private sphere,
intimate decisions, and human relations, including consensual
sexual activity among persons who are over the age of consent,
without arbitrary interference;
B. Repeal all laws that criminalise consensual sexual activity among
persons of the same sex who are over the age of consent, and ensure
that an equal age of consent applies to both same-sex and different-
sex sexual activity;
C. Ensure that criminal and other legal provisions of general
application are not applied to de facto criminalise consensual
sexual activity among persons of the same sex who are over the age
of consent;
D. Repeal any law that prohibits or criminalises the expression of
gender identity, including through dress, speech or mannerisms, or
that denies to individuals the opportunity to change their bodies
as a means of expressing their gender identity;
E. Release all those held on remand or on the basis of a criminal
conviction, if their detention is related to consensual sexual
activity among persons who are over the age of consent, or is
related to gender identity;
F. Ensure the right of all persons ordinarily to choose when, to whom
and how to disclose information pertaining to their sexual
orientation or gender identity, and protect all persons from
arbitrary or unwanted disclosure, or threat of disclosure of such
information by others
9. THE RIGHT TO TREATMENT WITH HUMANITY WHILE IN DETENTION
Everyone deprived of liberty shall be treated with humanity and with
respect for the inherent dignity of the human person. Sexual
orientation and gender identity are integral to each person’s dignity.
States shall:
A. Ensure that placement in detention avoids further marginalising
persons on the basis of sexual orientation or gender identity or
subjecting them to risk of violence, ill-treatment or physical,
mental or sexual abuse;
B. Provide adequate access to medical care and counselling appropriate
to the needs of those in custody, recognising any particular needs
of persons on the basis of their sexual orientation or gender
identity, including with regard to reproductive health, access to
HIV/AIDS information and therapy and access to hormonal or other
therapy as well as to gender-reassignment treatments where desired;
C. Ensure, to the extent possible, that all prisoners participate in
decisions regarding the place of detention appropriate to their
sexual orientation and gender identity;
D. Put protective measures in place for all prisoners vulnerable to
violence or abuse on the basis of their sexual orientation, gender
identity or gender expression and ensure, so far as is reasonably
practicable, that such protective measures involve no greater
restriction of their rights than is experienced by the general
prison population;
E. Ensure that conjugal visits, where permitted, are granted on an
equal basis to all prisoners and detainees, regardless of the
gender of their partner;
F. Provide for the independent monitoring of detention facilities by
the State as well as by non-governmental organisations including
organisations working in the spheres of sexual orientation and
gender identity;
G. Undertake programmes of training and awareness-raising for prison
personnel and all other officials in the public and private sector
who are engaged in detention facilities, regarding international
human rights standards and principles of equality and non-
discrimination, including in relation to sexual orientation and
gender identity.
18. PROTECTION FROM MEDICAL ABUSES
No person may be forced to undergo any form of medical or
psychological treatment, procedure, testing, or be confined to a
medical facility, based on sexual orientation or gender identity.
Notwithstanding any classifications to the contrary, a person’s sexual
orientation and gender identity are not, in and of themselves, medical
conditions and are not to be treated, cured or suppressed.
States shall:
A. Take all necessary legislative, administrative and other measures
to ensure full protection against harmful medical practices based
on sexual orientation or gender identity, including on the basis of
stereotypes, whether derived from culture or otherwise, regarding
conduct, physical appearance or perceived gender norms;
B. Take all necessary legislative, administrative and other measures
to ensure that no child’s body is irreversibly altered by medical
procedures in an attempt to impose a gender identity without the
full, free and informed consent of the child in accordance with the
age and maturity of the child and guided by the principle that in
all actions concerning children, the best interests of the child
shall be a primary consideration;
C. Establish child protection mechanisms whereby no child is at risk
of, or subjected to, medical abuse;
D. Ensure protection of persons of diverse sexual orientations and
gender identities against unethical or involuntary medical
procedures or research, including in relation to vaccines,
treatments or microbicides for HIV/AIDS or other diseases;
E. Review and amend any health funding provisions or programmes,
including those of a development-assistance nature, which may
promote, facilitate or in any other way render possible such
abuses;
F. Ensure that any medical or psychological treatment or counselling
does not, explicitly or implicitly, treat sexual orientation and
gender identity as medical conditions to be treated, cured or
suppressed.
19. THE RIGHT TO FREEDOM OF OPINION AND EXPRESSION
Everyone has the right to freedom of opinion and expression,
regardless of sexual orientation or gender identity. This includes the
expression of identity or personhood through speech, deportment,
dress, bodily characteristics, choice of name, or any other means, as
well as the freedom to seek, receive and impart information and ideas
of all kinds, including with regard to human rights, sexual
orientation and gender identity, through any medium and regardless of
frontiers.
States shall:
A. Take all necessary legislative, administrative and other measures
to ensure full enjoyment of freedom of opinion and expression,
while respecting the rights and freedoms of others, without
discrimination on the basis of sexual orientation or gender
identity, including the receipt and imparting of information and
ideas concerning sexual orientation and gender identity, as well as
related advocacy for legal rights, publication of materials,
broadcasting, organisation of or participation in conferences, and
dissemination of and access to safer-sex information;
B. Ensure that the outputs and the organisation of media that is
State-regulated is pluralistic and non-discriminatory in respect of
issues of sexual orientation and gender identity and that the
personnel recruitment and promotion policies of such organisations
are non-discriminatory on the basis of sexual orientation or gender
identity;
C. Take all necessary legislative, administrative and other measures
to ensure the full enjoyment of the right to express identity or
personhood, including through speech, deportment, dress, bodily
characteristics, choice of name or any other means;
D. Ensure that notions of public order, public morality, public health
and public security are not employed to restrict, in a
discriminatory manner, any exercise of freedom of opinion and
expression that affirms diverse sexual orientations or gender
identities;
E. Ensure that the exercise of freedom of opinion and expression does
not violate the rights and freedoms of persons of diverse sexual
orientations and gender identities;
F. Ensure that all persons, regardless of sexual orientation or gender
identity, enjoy equal access to information and ideas, as well as
to participation in public debate.”

 

23. UN bodies, Regional Human Rights Bodies, National Courts, Government
Commissions and the Commissions for Human Rights, Council of Europe, etc.
have endorsed the Yogyakarta Principles and have considered them as an
important tool for identifying the obligations of States to respect,
protect and fulfill the human rights of all persons, regardless of their
gender identity. United Nations Committee on Economic, Social and Cultural
Rights in its Report of 2009 speaks of gender orientation and gender
identity as follows:-
“Sexual orientation and gender identity
‘Other status’ as recognized in article 2, paragraph 2, includes
sexual orientation. States parties should ensure that a person’s
sexual orientation is not a barrier to realizing Covenant rights, for
example, in accessing survivor’s pension rights. In addition, gender
identity is recognized as among the prohibited grounds of
discrimination, for example, persons who are transgender, transsexual
or intersex, often face serious human rights violations, such as
harassment in schools or in the workplace.”

 

24. In this respect, reference may also be made to the General Comment
No.2 of the Committee on Torture and Article 2 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in
2008 and also the General Comment No.20 of the Committee on Elimination of
Discrimination against Woman, responsible for the implementation of the
Convention on the Elimination of All Forms of Discrimination against Woman,
1979 and 2010 report.

SRS and Foreign Judgments

25. Various countries have given recognition to the gender identity of
such persons, mostly, in cases where transsexual persons started asserting
their rights after undergoing SRS of their re-assigned sex. In Corbett
v. Corbett (1970) 2 All ER 33, the Court in England was concerned with the
gender of a male to female transsexual in the context of the validity of a
marriage. Ormrod, J. in that case took the view that the law should adopt
the chromosomal, gonadal and genital tests and if all three are congruent,
that should determine a person’s sex for the purpose of marriage. Learned
Judge expressed the view that any operative intervention should be ignored
and the biological sexual constitution of an individual is fixed at birth,
at the latest, and cannot be changed either by the natural development of
organs of the opposite sex or by medical or surgical means. Later, in R v.
Tan (1983) QB 1053, 1063-1064, the Court of Appeal applied Corbett approach
in the context of criminal law. The Court upheld convictions which were
imposed on Gloria Greaves, a post-operative male to female transsexual,
still being in law, a man.

26. Corbett principle was not found favour by various other countries,
like New Zealand, Australia etc. and also attracted much criticism, from
the medical profession. It was felt that the application of the Corbett
approach would lead to a substantial different outcome in cases of a post
operative inter-sexual person and a post operative transsexual person. In
New Zealand in Attorney-General v. Otahuhu Family Court (1995) 1 NZLR 603,
Justice Ellis noted that once a transsexual person has undergone surgery,
he or she is no longer able to operate in his or her original sex. It was
held that there is no social advantage in the law for not recognizing the
validity of the marriage of a transsexual in the sex of reassignment. The
Court held that an adequate test is whether the person in question has
undergone surgical and medical procedures that have effectively given the
person the physical conformation of a person of a specified sex. In Re
Kevin (Validity of Marriage of Transsexual) (2001) Fam CA 1074, in an
Australian case, Chisholm J., held that there is no ‘formulaic solution’ to
determine the sex of an individual for the purpose of the law of marriage.
It was held that all relevant matters need to be considered, including the
person’s life experiences and self-perception. Full Court of the Federal
Family Court in the year 2003 approved the above-mentioned judgment holding
that in the relevant Commonwealth marriage statute the words ‘man’ and
‘woman’ should be given their ordinary, everyday contemporary meaning and
that the word ‘man’ includes a post operative female to male transsexual
person. The Full Court also held that there was a biological basis for
transsexualism and that there was no reason to exclude the psyche as one of
the relevant factors in determining sex and gender. The judgment Attorney-
General for the Commonwealth & “Kevin and Jennifer” & Human Rights and
Equal Opportunity Commission is reported in (2003) Fam CA 94.

27. Lockhart, J. in Secretary, Department of Social Security v. “SRA”,
(1993) 43 FCR 299 and Mathews, J. in R v. Harris & McGuiness (1988) 17
NSWLR 158, made an exhaustive review of the various decisions with regard
to the question of recognition to be accorded by Courts to the gender of a
transsexual person who had undertaken a surgical procedure. The Courts
generally in New Zealand held that the decision in Corbett v. Corbett
(supra) and R v. Tan (supra) which applied a purely biological test, should
not be followed. In fact, Lockhart. J. in SRA observed that the
development in surgical and medical techniques in the field of sexual
reassignment, together with indications of changing social attitudes
towards transsexuals, would indicate that generally they should not be
regarded merely as a matter of chromosomes, which is purely a psychological
question, one of self-perception, and partly a social question, how society
perceives the individual.
28. A.B. v. Western Australia (2011) HCA 42 was a case concerned with the
Gender Reassignment Act, 2000. In that Act, a person who had undergone a
reassignment procedure could apply to Gender Reassignment Board for the
issue of a recognition certificate. Under Section 15 of that Act, before
issuing the certificate, the Board had to be satisfied, inter alia, that
the applicant believed his or her true gender was the person’s reassigned
gender and had adopted the lifestyle and gender characteristics of that
gender. Majority of Judges agreed with Lockhart, J. in SRA that gender
should not be regarded merely as a matter of chromosomes, but partly a
psychological question, one of self-perception, and partly a social
question, how society perceives the individual.

29. The House of Lords in Bellinger v. Bellinger (2003) 2 All ER 593 was
dealing with the question of a transsexual. In that case, Mrs. Bellinger
was born on 7th September, 1946. At birth, she was correctly classified
and registered as male. However, she felt more inclined to be a female.
Despite her inclinations, and under some pressure, in 1967 she married a
woman and at that time she was 21 years old. Marriage broke down and
parties separated in 1971 and got divorce in the year 1975. Mrs. Bellinger
dressed and lived like a woman and when she married Mr. Bellinger, he was
fully aware of her background and throughout had been supportive to her.
Mr. and Mrs. Bellinger since marriage lived happily as husband and wife and
presented themselves in that fashion to the outside world. Mrs.
Bellinger’s primary claim was for a declaration under Section 55 of the
Family Law Act, 1986 that her marriage to Mr. Bellinger in 1981 was “at its
inception valid marriage”. The House of Lords rejected the claim and
dismissed the appeal. Certainly, the “psychological factor” has not been
given much prominence in determination of the claim of Mrs. Bellinger.
30. The High Court of Kuala Lumpur in Re JG, JG v. Pengarah Jabatan
Pendaftaran Negara (2006) 1 MLJ 90, was considering the question as to
whether an application to amend or correct gender status stated in National
Registration Identity Card could be allowed after a person has undergone
SRS. It was a case where the plaintiff was born as a male, but felt more
inclined to be a woman. In 1996 at Hospital Siroros she underwent a gender
reassignment and got the surgery done for changing the sex from male to
female and then she lived like a woman. She applied to authorities to
change her name and also for a declaration of her gender as female, but her
request was not favourably considered, but still treated as a male. She
sought a declaration from the Court that she be declared as a female and
that the Registration Department be directed to change the last digit of
her identity card to a digit that reflects a female gender. The Malaysian
Court basically applied the principle laid down in Corbett (supra),
however, both the prayers sought for were granted, after noticing that the
medical men have spoken that the plaintiff is a female and they have
considered the sex change of the plaintiff as well as her “psychological
aspect”. The Court noticed that she feels like a woman, lives like one,
behaves as one, has her physical body attuned to one, and most important of
all, her “psychological thinking” is that of a woman.
31. The Court of Appeal, New South Wales was called upon to decide the
question whether the Registrar of Births, Deaths and Marriages has the
power under the Births, Deaths and Marriages Act, 1995 to register a change
of sex of a person and the sex recorded on the register to “non-specific”
or “non-specified”. The appeal was allowed and the matter was remitted
back to the Tribunal for a fresh consideration in accordance with law,
after laying down the law on the subject. The judgment is reported as
Norrie v. NSW Registrar of Births, Deaths and Marriages (2013) NSWCA 145.
While disposing of the appeal, the Court held as follows:-
“The consequence is that the Appeal Panel (and the Tribunal and the
Registrar) were in error in construing the power in S.32DC(1) as
limiting the Registrar to registering a person’s change of sex as only
male or female. An error in the construction of the statutory
provision granting the power to register a person’s change of sex is
an error on a question of law. Collector of Customs v. Pozzolanic
Enterprises Pty. Ltd. [1993] FCA 322; (1993) 43 FCR 280 at 287. This
is so notwithstanding that the determination of the common
understanding of a general word used in the statutory provision is a
question of fact. The Appeal Panel (and the Tribunal and the
Registrar) erred in determining that the current ordinary meaning of
the word “sex” is limited to the character of being either male or
female. That involved an error on a question of fact. But the Appeal
Panel’s error in arriving at the common understanding of the word
“sex” was associated with its error in construction of the effect of
the statutory provision of S.32DC (and also of S.32DA), and
accordingly is of law: Hope v. Bathurst City Council [1980] HCA 16,
(1980) 144 CLR 1 at 10.”
32. In Christine Goodwin v. United Kingdom (Application No.28957/95 –
Judgment dated 11th July, 2002), the European Court of Human Rights
examined an application alleging violation of Articles 8, 12, 13 and 14 of
the Convention for Protection of Human Rights and Fundamental Freedoms,
1997 in respect of the legal status of transsexuals in UK and particularly
their treatment in the sphere of employment, social security, pensions and
marriage. Applicant in that case had a tendency to dress as a woman from
early childhood and underwent aversion therapy in 1963-64. In the mid-
1960s she was diagnosed as a transsexual. Though she married a woman and
they had four children, her inclination was that her “brain sex” did not
fit her body. From that time until 1984 she dressed as a man for work but
as a woman in her free time. In January, 1985, the applicant began
treatment at the Gender Identity Clinic. In October, 1986, she underwent
surgery to shorten her vocal chords. In August, 1987, she was accepted on
the waiting list for gender re-assignment surgery and later underwent that
surgery at a National Health Service hospital. The applicant later
divorced her former wife. She claimed between 1990 and 1992 she was
sexually harassed by colleagues at work, followed by other human rights
violations. The Court after referring to various provisions and
Conventions held as follows:-

“Nonetheless, the very essence of the Convention is respect for human
dignity and human freedom. Under Article 8 of the Convention in
particular, where the notion of personal autonomy is an important
principle underlying the interpretation of its guarantees, protection
is given to the personal sphere of each individuals, including the
right to establish details of their identity as individual human
beings (see, inter alia, Pretty v. the United Kingdom no.2346/02,
judgment of 29 April 2002, 62, and Mikulic v. Croatia, no.53176/99,
judgment of 7 February 2002, 53, both to be published in ECHR 2002…).
In the twenty first century the right of transsexuals to personal
development and to physical and moral security in the full sense
enjoyed by others in society cannot be regarded as a matter of
controversy requiring the lapse of time to cast clearer light on the
issues involved. In short, the unsatisfactory situation in which post-
operative transsexuals live in an intermediate zone as not quite one
gender or the other is no longer sustainable.”
33. The European Court of Human Rights in the case of Van Kuck v. Germany
(Application No.35968/97 – Judgment dated 12.9.2003) dealt with the
application alleging that German Court’s decisions refusing the applicant’s
claim for reimbursement of gender reassignment measures and the related
proceedings were in breach of her rights to a fair trial and of her right
to respect for her private life and that they amounted to discrimination on
the ground of her particular “psychological situation”. Reliance was
placed on Articles 6, 8, 13 and 14 of the Convention for Protection of
Human Rights and Fundamental Freedoms, 1997. The Court held that the
concept of “private life” covers the physical and psychological integrity
of a person, which can sometimes embrace aspects of an individual’s
physical and social identity. For example, gender identifications, name
and sexual orientation and sexual life fall within the personal sphere
protected by Article 8. The Court also held that the notion of personal
identity is an important principle underlying the interpretation of various
guaranteed rights and the very essence of the Convention being respect for
human dignity and human freedom, protection is given to the right of
transsexuals to personal development and to physical and moral security.
34. Judgments referred to above are mainly related to transsexuals, who,
whilst belonging physically to one sex, feel convinced that they belong to
the other, seek to achieve a more integrated unambiguous identity by
undergoing medical and surgical operations to adapt their physical
characteristic to their psychological nature. When we examine the rights
of transsexual persons, who have undergone SRS, the test to be applied is
not the “Biological test”, but the “Psychological test”, because
psychological factor and thinking of transsexual has to be given primacy
than binary notion of gender of that person. Seldom people realize the
discomfort, distress and psychological trauma, they undergo and many of
them undergo “Gender Dysphoria’ which may lead to mental disorder.
Discrimination faced by this group in our society, is rather unimaginable
and their rights have to be protected, irrespective of chromosomal sex,
genitals, assigned birth sex, or implied gender role. Rights of
transgenders, pure and simple, like Hijras, eunuchs, etc. have also to be
examined, so also their right to remain as a third gender as well as their
physical and psychological integrity. Before addressing those aspects
further, we may also refer to few legislations enacted in other countries
recognizing their rights.

LEGISLATIONS IN OTHER COUNTRIES ON TGs

35. We notice, following the trend, in the international human rights law,
many countries have enacted laws for recognizing rights of transsexual
persons, who have undergone either partial/complete SRS, including United
Kingdom, Netherlands, Germany, Australia, Canada, Argentina, etc. United
Kingdom has passed the General Recommendation Act, 2004, following the
judgment in Christine Goodwin (supra) passed by the European Courts of
Human Rights. The Act is all encompassing as not only does it provide
legal recognition to the acquired gender of a person, but it also lays down
provisions highlighting the consequences of the newly acquired gender
status on their legal rights and entitlements in various aspects such as
marriage, parentage, succession, social security and pensions etc. One
of the notable features of the Act is that it is not necessary that a
person needs to have undergone or in the process of undergoing a SRS to
apply under the Act. Reference in this connection may be made to the
Equality Act, 2010 (UK) which has consolidated, repealed and replaced
around nine different anti-discrimination legislations including the Sex
Discrimination Act, 1986. The Act defines certain characteristics to be
“protected characteristics” and no one shall be discriminated or treated
less favourably on grounds that the person possesses one or more of the
“protected characteristics”. The Act also imposes duties on Public Bodies
to eliminate all kinds of discrimination, harassment and victimization.
Gender reassignment has been declared as one of the protected
characteristics under the Act, of course, only the transsexuals i.e. those
who are proposing to undergo, is undergoing or has undergone the process of
the gender reassignment are protected under the Act.

36. In Australia, there are two Acts dealing with the gender identity,
(1) Sex Discrimination Act, 1984; and (ii) Sex Discrimination Amendment
(Sexual Orientation, Gender Identity and Intersex Status) Act, 2013 (Act
2013). Act 2013 amends the Sex Discrimination Act, 1984. Act 2013
defines gender identity as the appearance or mannerisms or other gender-
related characteristics of a person (whether by way of medical intervention
or not) with or without regard to the person’s designated sex at birth.
Sections 5(A), (B) and (C) of the 2013 Act have some relevance and
the same are extracted hereinbelow:-
“5A  Discrimination on the ground of sexual orientation

(1)  For the purposes of this Act, a person (the discriminator)
discriminates against another person (the aggrieved person) on the
ground of the aggrieved person’s sexual orientation if, by reason of:
(a)  the aggrieved person’s sexual orientation; or
(b)  a characteristic that appertains generally to persons who have
the same sexual orientation as the aggrieved person; or
(c)  a characteristic that is generally imputed to persons who have
the same sexual orientation as the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in
circumstances that are the same or are not materially different, the
discriminator treats or would treat a person who has a different
sexual orientation.
(2)  For the purposes of this Act, a person (the discriminator)
discriminates against another person (the aggrieved person) on the
ground of the aggrieved person’s sexual orientation if the
discriminator imposes, or proposes to impose, a condition, requirement
or practice that has, or is likely to have, the effect of
disadvantaging persons who have the same sexual orientation as the
aggrieved person.
(3)  This section has effect subject to sections 7B and 7D.
5B  Discrimination on the ground of gender identity
(1)  For the purposes of this Act, a person (the discriminator)
discriminates against another person (the aggrieved person) on the
ground of the aggrieved person’s gender identity if, by reason of:
(a)  the aggrieved person’s gender identity; or
(b)  a characteristic that appertains generally to persons who have
the same gender identity as the aggrieved person; or
(c)  a characteristic that is generally imputed to persons who have
the same gender identity as the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in
circumstances that are the same or are not materially different, the
discriminator treats or would treat a person who has a different
gender identity.
(2)  For the purposes of this Act, a person (the discriminator)
discriminates against another person (the aggrieved person) on the
ground of the aggrieved person’s gender identity if the discriminator
imposes, or proposes to impose, a condition, requirement or practice
that has, or is likely to have, the effect of disadvantaging persons
who have the same gender identity as the aggrieved person.
(3)  This section has effect subject to sections 7B and 7D.
5C  Discrimination on the ground of intersex status
(1)  For the purposes of this Act, a person (the discriminator)
discriminates against another person (the aggrieved person) on the
ground of the aggrieved person’s intersex status if, by reason of:
(a)  the aggrieved person’s intersex status; or
(b)  a characteristic that appertains generally to persons of
intersex status; or
(c)  a characteristic that is generally imputed to persons of
intersex status;
the discriminator treats the aggrieved person less favourably than, in
circumstances that are the same or are not materially different, the
discriminator treats or would treat a person who is not of intersex
status.
(2)  For the purposes of this Act, a person (the discriminator)
discriminates against another person (the aggrieved person) on the
ground of the aggrieved person’s intersex status if the discriminator
imposes, or proposes to impose, a condition, requirement or practice
that has, or is likely to have, the effect of disadvantaging persons
of intersex status.
(3)  This section has effect subject to sections 7B and 7D.”
Various other precautions have also been provided under the Act.

37. We may in this respect also refer to the European Union Legislations
on transsexuals. Recital 3 of the Preamble to the Directive 2006/54/EC of
European Parliament and the Council of 5 July 2006 makes an explicit
reference to discrimination based on gender reassignment for the first time
in European Union Law. Recital 3 reads as under :-
“The Court of Justice has held that the scope of the principle of
equal treatment for men and women cannot be confined to the
prohibition of discrimination based on the fact that a person is of
one or other sex. In view of this purpose and the nature of the
rights which it seeks to safeguard, it also applies to discrimination
arising from the gender reassignment of a person.”
38. European Parliament also adopted a resolution on discrimination
against transsexuals on 12th September, 1989 and called upon the Member
States to take steps for the protection of transsexual persons and to pass
legislation to further that end. Following that Hungary has enacted Equal
Treatment and the Promotion of Equal Opportunities Act, 2003, which
includes sexual identity as one of the grounds of discrimination. 2010
paper on ‘Transgender Persons’ Rights in the EU Member States prepared by
the Policy Department of the European Parliament presents the specific
situation of transgender people in 27 Member States of the European Union.
In the United States of America some of the laws enacted by the States are
inconsistent with each other. The Federal Law which provides protection
to transgenders is The Matthew Shepard and James Byrd. Jr. Hate Crimes
Prevention Act, 2009, which expands the scope of the 1969 United States
Federal Hate-crime Law by including offences motivated by actual or
perceived gender identity. Around 15 States and District of Colombia in
the United States have legislations which prohibit discrimination on
grounds of gender identity and expression. Few States have issued
executive orders prohibiting discrimination.

39. The Parliament of South Africa in the year 2003, enacted Alteration of
Sex Description and Sex Status Act, 2003, which permits transgender persons
who have undergone gender reassignment or people whose sexual
characteristics have evolved naturally or an intersexed person to apply to
the Director General of the National Department of Home Affairs for
alteration of his/her sex description in the birth register, though the
legislation does not contemplate a more inclusive definition of
transgenders.

40. The Senate of Argentina in the year 2012 passed a law on Gender
Identity that recognizes right by all persons to the recognition of their
gender identity as well as free development of their person according to
their gender identity and can also request that their recorded sex be
amended along with the changes in first name and image, whenever they do
not agree with the self-perceived gender identity. Not necessary that they
seemed to prove that a surgical procedure for total or partial genital
reassignment, hormonal therapies or any other psychological or medical
treatment had taken place. Article 12 deals with dignified treatment,
respecting the gender identity adopted by the individual, even though the
first name is different from the one recorded in their national identity
documents. Further laws also provide that whenever requested by the
individual, the adopted first name must be used for summoning, recording,
filing, calling and any other procedure or service in public and private
spaces.
41. In Germany, a new law has come into force on 5th November, 2013,
which allows the parents to register the sex of the children as ‘not
specified’ in the case of children with intersex variation. According to
Article 22, Section 3 of the German Civil Statutes Act reads as follows:-
“If a child can be assigned to neither the female nor the male sex
then the child has to be named without a specification”
42. The law has also added a category of X, apart from “M” and “F” under
the classification of gender in the passports.

Indian Scenario
43. We have referred exhaustively to the various judicial pronouncements
and legislations on the international arena to highlight the fact that the
recognition of “sex identity gender” of persons, and “guarantee to equality
and non-discrimination” on the ground of gender identity or expression is
increasing and gaining acceptance in international law and, therefore, be
applied in India as well.

44. Historical background of Transgenders in India has already been
dealth in the earlier part of this Judgment indicating that they were once
treated with great respect, at least in the past, though not in the
present. We can perceive a wide range of transgender related identities,
cultures or experiences which are generally as follows:
“Hijras: Hijras are biological males who reject their ‘masculine’
identity in due course of time to identify either as women, or “not-
men”, or “in-between man and woman”, or “neither man nor woman”.
Hijras can be considered as the western equivalent of
transgender/transsexual (male-to-female) persons but Hijras have a
long tradition/culture and have strong social ties formalized through
a ritual called “reet” (becoming a member of Hijra community). There
are regional variations in the use of terms referred to Hijras. For
example, Kinnars (Delhi) and Aravanis (Tamil Nadu). Hijras may earn
through their traditional work: ‘Badhai’ (clapping their hands and
asking for alms), blessing new-born babies, or dancing in ceremonies.
Some proportion of Hijras engage in sex work for lack of other job
opportunities, while some may be self-employed or work for non-
governmental organisations.” (See UNDP India Report (December, 2010).
Eunuch: Eunuch refers to an emasculated male and intersexed to a
person whose genitals are ambiguously male-like at birth, but this is
discovered the child previously assigned to the male sex, would be
recategorized as intesexexd – as a Hijra.
“Aravanis and ‘Thirunangi’ – Hijras in Tamil Nadu identify as
“Aravani”. Tamil Nadu Aravanigal Welfare Board, a state government’s
initiative under the Department of Social Welfare defines Aravanis as
biological males who self-identify themselves as a woman trapped in a
male’s body. Some Aravani activists want the public and media to use
the term ‘Thirunangi’ to refer to Aravanis.
Kothi – Kothis are a heterogeneous group. ‘Kothis’ can be described
as biological males who show varying degrees of ‘femininity’ – which
may be situational. Some proportion of Kothis have bisexual behavior
and get married to a woman. Kothis are generally of lower
socioeconomic status and some engage in sex work for survival. Some
proportion of Hijra-identified people may also identify themselves as
‘Kothis’. But not all Kothi identified people identify themselves as
transgender or Hijras.
Jogtas/Jogappas: Jogtas or Jogappas are those persons who are
dedicated to and serve as a servant of goddess Renukha Devi (Yellamma)
whose temples are present in Maharashtra and Karnataka. ‘Jogta’
refers to male servant of that Goddess and ‘Jogti’ refers to female
servant (who is also sometimes referred to as ‘Devadasi’). One can
become a ‘Jogta’ (or Jogti) if it is part of their family tradition or
if one finds a ‘Guru’ (or ‘Pujari’) who accepts him/her as a ‘Chela’
or ‘Shishya’ (disciple). Sometimes, the term ‘Jogti Hijras’ is used
to denote those male-to-female transgender persons who are
devotees/servants of Goddess Renukha Devi and who are also in the
Hijra communities. This term is used to differentiate them from
‘Jogtas’ who are heterosexuals and who may or may not dress in woman’s
attire when they worship the Goddess. Also, that term differentiates
them from ‘Jogtis’ who are biological females dedicated to the
Goddess. However, ‘Jogti Hijras’ may refer to themselves as ‘Jogti’
(female pronoun) or Hijras, and even sometimes as ‘Jogtas’.
Shiv-Shakthis: Shiv-Shakthis are considered as males who are
possessed by or particularly close to a goddess and who have feminine
gender expression. Usually, Shiv-Shakthis are inducted into the Shiv-
Shakti community by senior gurus, who teach them the norms, customs,
and rituals to be observed by them. In a ceremony, Shiv-Shakthis are
married to a sword that represents male power or Shiva (deity). Shiv-
Shakthis thus become the bride of the sword. Occasionally, Shiv-
Shakthis cross-dress and use accessories and ornaments that are
generally/socially meant for women. Most people in this community
belong to lower socio-economic status and earn for their living as
astrologers, soothsayers, and spiritual healers; some also seek alms.”
(See Serena Nanda, Wadsworth Publishing Company, Second Edition
(1999)
45. Transgender people, as a whole, face multiple forms of oppression in
this country. Discrimination is so large and pronounced, especially in the
field of health care, employment, education, leave aside social exclusion.
A detailed study was conducted by the United Nations Development Programme
(UNDP – India) and submitted a report in December, 2010 on
Hijras/transgenders in India: “HIV Human Rights and Social Exclusion”. The
Report states that the HIV Human Immunodeficiency Virus and Sexually
Transmitted Infections (STI) is now increasingly seen in
Hijras/transgenders population. The estimated size of men who have sex
with men (MSM) and male sex workers population in India (latter presumably
includes Hijras/TG communities) is 2,352,133 and 235,213 respectively. It
was stated that no reliable estimates are available for Hijras/TG women.
HIV prevalence among MSM population was 7.4% against the overall adult HIV
prevalence of 0.36%. It was stated recently Hijras/TG people were included
under the category of MSM in HIV sentinel serosurveillance. It is also
reported in recent studies that Hijras/TG women have indicated a very high
HIV prevalence (17.5% to 41%) among them. Study conducted by NACO also
highlights a pathetic situation. Report submitted by NACI, NACP IV Working
Group Hijras TG dated 5.5.2011 would indicate that transgenders are
extremely vulnerable to HIV. Both the reports highlight the extreme
necessity of taking emergent steps to improve their sexual health, mental
health and also address the issue of social exclusion. The UNDP in its
report has made the following recommendations, which are as under:
“Multiple problems are faced by Hijras/TG, which necessitate a variety
of solutions and actions. While some actions require immediate
implementation such as introducing Hijra/TG-specific social welfare
schemes, some actions need to be taken on a long-term basis changing
the negative attitude of the general public and increasing accurate
knowledge about Hijra/TG communities. The required changes need to be
reflected in policies and laws; attitude of the government, general
public and health care providers; and health care systems and
practice. Key recommendations include the following:
1. Address the gape in NACP-III: establish HIV sentinel
serosurveillance sites for Hijras/TG at strategic locations;
conduct operations research to design and fine-tune culturally-
relevant package of HIV prevention and care interventions for
Hijras/TG; provide financial support for the formation of CBOs run
by Hijras/TG; and build the capacity of CBOs to implement effective
rogrammes.
2. Move beyond focusing on individual-level HIV prevention activities
to address the structural determinants of risks and mitigate the
impact of risks. For example, mental health counseling, crisis
intervention (crisis in relation to suicidal tendencies, police
harassment and arrests, support following sexual and physical
violence), addressing alcohol and drug abuse, and connecting to
livelihood programs all need to be part of the HIV interventions.
3. Train health care providers to be competent and sensitive in
providing health care services (including STI and HIV-related
services) to Hijras/TG as well as develop and monitor
implementation of guidelines related to gender transition and sex
reassignment surgery (SRS).
4. Clarify the ambiguous legal status of sex reassignment surgery and
provide gender transition and SRS services (with proper pre-and
post-operation/transition counseling) for free in public hospitals
in various parts in India.
5. Implement stigma and discrimination reduction measures at various
settings through a variety of ways: mass media awareness for the
general public to focused training and sensitization for police and
health care providers.
6. Develop action steps toward taking a position on legal recognition
of gender identity of Hijras/TG need to be taken in consultation
with Hijras/TG and other key stakeholders. Getting legal
recognition and avoiding ambiguities in the current procedures that
issue identity documents to Hijras/TGs are required as they are
connected to basic civil rights such as access to health and public
services, right to vote, right to contest elections, right to
education, inheritance rights, and marriage and child adoption.
7. Open up the existing Social Welfare Schemes for needy Hijras/TG and
create specific welfare schemes to address the basic needs of
Hijras/TG including housing and employment needs.
8. Ensure greater involvement of vulnerable communities including
Hijras/TG women in policy formulation and program development.”

 

46. Social exclusion and discrimination on the ground of gender stating
that one does not conform to the binary gender (male/female) does prevail
in India. Discussion on gender identity including self-identification of
gender of male/female or as transgender mostly focuses on those persons who
are assigned male sex at birth, whether one talks of Hijra transgender,
woman or male or male to female transgender persons, while concern voiced
by those who are identified as female to male trans-sexual persons often
not properly addressed. Female to male unlike Hijra/transgender persons are
not quite visible in public unlike Hijra/transgender persons. Many of
them, however, do experience violence and discrimination because of their
sexual orientation or gender identity.

INDIA TO FOLLOW INTERNATIONAL CONVENTIONS
47. International Conventions and norms are significant for the purpose
of interpretation of gender equality. Article 1 of the Universal
declaration on Human Rights, 1948, states that all human-beings are born
free and equal in dignity and rights. Article 3 of the Universal
Declaration of Human Rights states that everyone has a right to life,
liberty and security of person. Article 6 of the International Covenant on
Civil and Political Rights, 1966 affirms that every human-being has the
inherent right to life, which right shall be protected by law and no one
shall be arbitrarily deprived of his life. Article 5 of the Universal
Declaration of Human Rights and Article 7 of the International Covenant on
Civil and Political Rights provide that no one shall be subjected to
torture or to cruel inhuman or degrading treatment or punishment. United
Nations Convention against Torture and Other Cruel Inhuman and Degrading
Treatment or Punishment (dated 24th January, 2008) specifically deals with
protection of individuals and groups made vulnerable by discrimination or
marginalization. Para 21 of the Convention states that States are obliged
to protect from torture or ill-treatment all persons regardless of sexual
orientation or transgender identity and to prohibit, prevent and provide
redress for torture and ill-treatment in all contests of State custody or
control. Article 12 of the Universal Declaration of Human Rights and
Article 17 of the International Covenant on Civil and Political Rights
state that no one shall be subjected to “arbitrary or unlawful interference
with his privacy, family, home or correspondence”.

48. Above-mentioned International Human Rights instruments which are
being followed by various countries in the world are aimed to protect the
human rights of transgender people since it has been noticed that
transgenders/transsexuals often face serious human rights violations, such
as harassment in work place, hospitals, places of public conveniences,
market places, theaters, railway stations, bus stands, and so on.

49. Indian Law, on the whole, only recognizes the paradigm of binary
genders of male and female, based on a person’s sex assigned by birth,
which permits gender system, including the law relating to marriage,
adoption, inheritance, succession and taxation and welfare legislations.
We have exhaustively referred to various articles contained in the
Universal Declaration of Human Rights, 1948, the International Covenant on
Economic, Social and Cultural Rights, 1966, the International Covenant on
Civil and Political Rights, 1966 as well as the Yogyakarta principles.
Reference was also made to legislations enacted in other countries dealing
with rights of persons of transgender community. Unfortunately we have no
legislation in this country dealing with the rights of transgender
community. Due to the absence of suitable legislation protecting the
rights of the members of the transgender community, they are facing
discrimination in various areas and hence the necessity to follow the
International Conventions to which India is a party and to give due respect
to other non-binding International Conventions and principles.
Constitution makers could not have envisaged that each and every human
activity be guided, controlled, recognized or safeguarded by laws made by
the legislature. Article 21 has been incorporated to safeguard those
rights and a constitutional Court cannot be a mute spectator when those
rights are violated, but is expected to safeguard those rights knowing the
pulse and feeling of that community, though a minority, especially when
their rights have gained universal recognition and acceptance.
50. Article 253 of the Constitution of India states that the Parliament
has the power to make any law for the whole or any part of the territory of
India for implementing any treaty, agreement or convention. Generally,
therefore, a legislation is required for implementing the international
conventions, unlike the position in the United States of America where the
rules of international law are applied by the municipal courts on the
theory of their implied adoption by the State, as a part of its own
municipal law. Article VI, Cl. (2) of the U.S. Constitution reads as
follows:
“……..all treaties made, or which shall be made, under the authority of
the united States, shall be the supreme law of the land, and the
judges in every State shall be bound thereby, anything in the
Constitution or laws of any State to the contrary not-withstanding.”

51. In the United States, however, it is open to the courts to supersede
or modify international law in its application or it may be controlled by
the treaties entered into by the United States. But, till an Act of
Congress is passed, the Court is bound by the law of nations, which is part
of the law of the land. Such a ‘supremacy clause’ is absent in our
Constitution. Courts in India would apply the rules of International law
according to the principles of comity of Nations, unless they are
overridden by clear rules of domestic law. See: Gramophone Company of
India Ltd. v. Birendra Bahadur Pandey (1984) 2 SCC 534 and Tractor Export
v. Tarapore & Co. (1969) 3 SCC 562, Mirza Ali Akbar Kashani v. United Arab
Republic (1966) 1 SCR 391. In the case of Jolly George Varghese v. Bank
of Cochin (1980) 2 SCC 360, the Court applied the above principle in
respect of the International Covenant on Civil and Political Rights, 1966
as well as in connection with the Universal Declaration of Human Rights.
India has ratified the above mentioned covenants, hence, those covenants
can be used by the municipal courts as an aid to the Interpretation of
Statutes by applying the Doctrine of Harmonization. But, certainly, if
the Indian law is not in conflict with the International covenants,
particularly pertaining to human rights, to which India is a party, the
domestic court can apply those principles in the Indian conditions. The
Interpretation of International Conventions is governed by Articles 31 and
32 of the Vienna Convention on the Law of Treaties of 1969.

52. Article 51 of the Directive Principles of State Policy, which falls
under Part IV of the Indian Constitution, reads as under:
“Art. 51. The State shall endeavour to –
a) promote international peace and security;
b) maintain just and honourable relations between nations;
c) Foster respect for international law and treaty obligation in the
dealings of organised peoples with one another; and
d) Encourage settlement of international disputes by arbitration.”

 

53. Article 51, as already indicated, has to be read along with Article
253 of the Constitution. If the parliament has made any legislation which
is in conflict with the international law, then Indian Courts are bound to
give effect to the Indian Law, rather than the international law. However,
in the absence of a contrary legislation, municipal courts in India would
respect the rules of international law. In His Holiness Kesavananda
Bharati Sripadavalvaru v. State of Kerala (1973) 4 SCC 225, it was stated
that in view of Article 51 of the Constitution, the Court must interpret
language of the Constitution, if not intractable, in the light of United
Nations Charter and the solemn declaration subscribed to it by India. In
Apparel Export Promotion Council v. A. K. Chopra (1999) 1 SCC 759, it was
pointed out that domestic courts are under an obligation to give due regard
to the international conventions and norms for construing the domestic
laws, more so, when there is no inconsistency between them and there is a
void in domestic law. Reference may also be made to the Judgments of this
Court in Githa Hariharan (Ms) and another v. Reserve Bank of India and
another (1999) 2 SCC 228, R.D. Upadhyay v. State of Andhra Pradesh and
others (2007) 15 SCC 337 and People’s Union for Civil Liberties v. Union
of India and another (2005) 2 SCC 436. In Vishaka and others v. State of
Rajasthan and Others (1997) 6 SCC 241, this Court under Article 141 laid
down various guidelines to prevent sexual harassment of women in working
places, and to enable gender equality relying on Articles 11, 24 and
general recommendations 22, 23 and 24 of the Convention on the Elimination
of All Forms of Discrimination against Women. Any international convention
not inconsistent with the fundamental rights and in harmony with its spirit
must be read into those provisions, e.g., Articles 14, 15, 19 and 21 of the
Constitution to enlarge the meaning and content thereof and to promote the
object of constitutional guarantee. Principles discussed hereinbefore on
TGs and the International Conventions, including Yogyakarta principles,
which we have found not inconsistent with the various fundamental rights
guaranteed under the Indian Constitution, must be recognized and followed,
which has sufficient legal and historical justification in our country.

ARTICLE 14 AND TRANSGENDERS

54. Article 14 of the Constitution of India states that the State shall
not deny to “any person” equality before the law or the equal protection of
the laws within the territory of India. Equality includes the full and
equal enjoyment of all rights and freedom. Right to equality has been
declared as the basic feature of the Constitution and treatment of equals
as unequals or unequals as equals will be violative of the basic structure
of the Constitution. Article 14 of the Constitution also ensures equal
protection and hence a positive obligation on the State to ensure equal
protection of laws by bringing in necessary social and economic changes, so
that everyone including TGs may enjoy equal protection of laws and nobody
is denied such protection. Article 14 does not restrict the word ‘person’
and its application only to male or female. Hijras/transgender persons who
are neither male/female fall within the expression ‘person’ and, hence,
entitled to legal protection of laws in all spheres of State activity,
including employment, healthcare, education as well as equal civil and
citizenship rights, as enjoyed by any other citizen of this country.

55. Petitioners have asserted as well as demonstrated on facts and
figures supported by relevant materials that despite constitutional
guarantee of equality, Hijras/transgender persons have been facing extreme
discrimination in all spheres of the society. Non-recognition of the
identity of Hijras/transgender persons denies them equal protection of law,
thereby leaving them extremely vulnerable to harassment, violence and
sexual assault in public spaces, at home and in jail, also by the police.
Sexual assault, including molestation, rape, forced anal and oral sex, gang
rape and stripping is being committed with impunity and there are reliable
statistics and materials to support such activities. Further, non-
recognition of identity of Hijras /transgender persons results in them
facing extreme discrimination in all spheres of society, especially in the
field of employment, education, healthcare etc. Hijras/transgender persons
face huge discrimination in access to public spaces like restaurants,
cinemas, shops, malls etc. Further, access to public toilets is also a
serious problem they face quite often. Since, there are no separate
toilet facilities for Hijras/transgender persons, they have to use male
toilets where they are prone to sexual assault and harassment.
Discrimination on the ground of sexual orientation or gender identity,
therefore, impairs equality before law and equal protection of law and
violates Article 14 of the Constitution of India.

ARTICLES 15 & 16 AND TRANSGENDERS

56. Articles 15 and 16 prohibit discrimination against any citizen on
certain enumerated grounds, including the ground of ‘sex’. In fact, both
the Articles prohibit all forms of gender bias and gender based
discrimination.

57. Article 15 states that the State shall not discriminate against any
citizen, inter alia, on the ground of sex, with regard to
(a) access to shops, public restaurants, hotels and places of public
entertainment; or
(b) use of wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated to the use
of the general public.
The requirement of taking affirmative action for the advancement of
any socially and educationally backward classes of citizens is also
provided in this Article.

58. Article 16 states that there shall be equality of opportunities for
all the citizens in matters relating to employment or appointment to any
office under the State. Article 16 (2) of the Constitution of India reads
as follows :
“16(2). No citizen shall, on grounds only of religion, race, caste,
sex, descent, place of birth, residence or any of them, be ineligible
for, or discriminated against in respect or, any employment or office
under the State.”

Article 16 not only prohibits discrimination on the ground of sex in
public employment, but also imposes a duty on the State to ensure that all
citizens are treated equally in matters relating to employment and
appointment by the State.

59. Articles 15 and 16 sought to prohibit discrimination on the basis of
sex, recognizing that sex discrimination is a historical fact and needs to
be addressed. Constitution makers, it can be gathered, gave emphasis to
the fundamental right against sex discrimination so as to prevent the
direct or indirect attitude to treat people differently, for the reason of
not being in conformity with stereotypical generalizations of binary
genders. Both gender and biological attributes constitute distinct
components of sex. Biological characteristics, of course, include
genitals, chromosomes and secondary sexual features, but gender attributes
include one’s self image, the deep psychological or emotional sense of
sexual identity and character. The discrimination on the ground of ‘sex’
under Articles 15 and 16, therefore, includes discrimination on the ground
of gender identity. The expression ‘sex’ used in Articles 15 and 16 is not
just limited to biological sex of male or female, but intended to include
people who consider themselves to be neither male or female.

60. TGs have been systematically denied the rights under Article 15(2)
that is not to be subjected to any disability, liability, restriction or
condition in regard to access to public places. TGs have also not been
afforded special provisions envisaged under Article 15(4) for the
advancement of the socially and educationally backward classes (SEBC) of
citizens, which they are, and hence legally entitled and eligible to get
the benefits of SEBC. State is bound to take some affirmative action for
their advancement so that the injustice done to them for centuries could be
remedied. TGs are also entitled to enjoy economic, social, cultural and
political rights without discrimination, because forms of discrimination on
the ground of gender are violative of fundamental freedoms and human
rights. TGs have also been denied rights under Article 16(2) and
discriminated against in respect of employment or office under the State on
the ground of sex. TGs are also entitled to reservation in the matter of
appointment, as envisaged under Article 16(4) of the Constitution. State
is bound to take affirmative action to give them due representation in
public services.

61. Articles 15(2) to (4) and Article 16(4) read with the Directive
Principles of State Policy and various international instruments to which
Indian is a party, call for social equality, which the TGs could realize,
only if facilities and opportunities are extended to them so that they can
also live with dignity and equal status with other genders.

ARTICLE 19(1)(a) AND TRANSGENDERS

62. Article 19(1) of the Constitution guarantees certain fundamental
rights, subject to the power of the State to impose restrictions from
exercise of those rights. The rights conferred by Article 19 are not
available to any person who is not a citizen of India. Article 19(1)
guarantees those great basic rights which are recognized and guaranteed as
the natural rights inherent in the status of the citizen of a free country.
Article 19(1) (a) of the Constitution states that all citizens shall have
the right to freedom of speech and expression, which includes one’s right
to expression of his self-identified gender. Self-identified gender can be
expressed through dress, words, action or behavior or any other form. No
restriction can be placed on one’s personal appearance or choice of
dressing, subject to the restrictions contained in Article 19(2) of the
Constitution.

63. We may, in this connection, refer to few judgments of the US Supreme
Courts on the rights of TG’s freedom of expression. The Supreme Court of
the State of Illinois in the City of Chicago v. Wilson et al., 75 III.2d
525(1978) struck down the municipal law prohibiting cross-dressing, and
held as follows “-
“the notion that the State can regulate one’s personal appearance,
unconfined by any constitutional strictures whatsoever, is
fundamentally inconsistent with “values of privacy, self-identity,
autonomy and personal integrity that ….. the Constitution was
designed to protect.”
64. In Doe v. Yunits et al., 2000 WL33162199 (Mass. Super.), the Superior
Court of Massachusetts, upheld the right of a person to wear school dress
that matches her gender identity as part of protected speech and expression
and observed as follows :-
“by dressing in clothing and accessories traditionally associated with
the female gender, she is expressing her identification with the
gender. In addition, plaintiff’s ability to express herself and her
gender identity through dress is important for her health and well-
being. Therefore, plaintiff’s expression is not merely a personal
preference but a necessary symbol of her identity.”
65. Principles referred to above clearly indicate that the freedom of
expression guaranteed under Article 19(1)(a) includes the freedom to
express one’s chosen gender identity through varied ways and means by way
of expression, speech, mannerism, clothing etc.

66. Gender identity, therefore, lies at the core of one’s personal
identity, gender expression and presentation and, therefore, it will have
to be protected under Article 19(1)(a) of the Constitution of India. A
transgender’s personality could be expressed by the transgender’s behavior
and presentation. State cannot prohibit, restrict or interfere with a
transgender’s expression of such personality, which reflects that inherent
personality. Often the State and its authorities either due to ignorance
or otherwise fail to digest the innate character and identity of such
persons. We, therefore, hold that values of privacy, self-identity,
autonomy and personal integrity are fundamental rights guaranteed to
members of the transgender community under Article 19(1)(a) of the
Constitution of India and the State is bound to protect and recognize those
rights.

ARTICLE 21 AND THE TRANSGENDERS

67. Article 21 of the Constitution of India reads as follows:
“21. Protection of life and personal liberty – No person shall be
deprived of his life or personal liberty except according to procedure
established by law.”

Article 21 is the heart and soul of the Indian Constitution, which
speaks of the rights to life and personal liberty. Right to life is one
of the basic fundamental rights and not even the State has the authority to
violate or take away that right. Article 21 takes all those aspects of
life which go to make a person’s life meaningful. Article 21 protects the
dignity of human life, one’s personal autonomy, one’s right to privacy,
etc. Right to dignity has been recognized to be an essential part of the
right to life and accrues to all persons on account of being humans. In
Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981) 1
SCC 608 (paras 7 and 8), this Court held that the right to dignity forms an
essential part of our constitutional culture which seeks to ensure the full
development and evolution of persons and includes “expressing oneself in
diverse forms, freely moving about and mixing and comingling with fellow
human beings”.

68. Recognition of one’s gender identity lies at the heart of the
fundamental right to dignity. Gender, as already indicated, constitutes
the core of one’s sense of being as well as an integral part of a person’s
identity. Legal recognition of gender identity is, therefore, part of
right to dignity and freedom guaranteed under our Constitution.
69. Article 21, as already indicated, guarantees the protection of
“personal autonomy” of an individual. In Anuj Garg v. Hotel Association
of India (2008) 3 SCC 1 (paragraphs 34-35), this Court held that personal
autonomy includes both the negative right of not to be subject to
interference by others and the positive right of individuals to make
decisions about their life, to express themselves and to choose which
activities to take part in. Self-determination of gender is an integral
part of personal autonomy and self-expression and falls within the realm of
personal liberty guaranteed under Article 21 of the Constitution of India.
LEGAL RECOGNITION OF THIRD/TRANSGENDER IDENTITY
70. Self-identified gender can be either male or female or a third
gender. Hijras are identified as persons of third gender and are not
identified either as male or female. Gender identity, as already
indicated, refers to a person’s internal sense of being male, female or a
transgender, for example Hijras do not identify as female because of their
lack of female genitalia or lack of reproductive capability. This
distinction makes them separate from both male and female genders and they
consider themselves neither man nor woman, but a “third gender”. Hijras,
therefore, belong to a distinct socio-religious and cultural group and
have, therefore, to be considered as a “third gender”, apart from male and
female. State of Punjab has treated all TGs as male which is not legally
sustainable. State of Tamil Nadu has taken lot of welfare measures to
safeguard the rights of TGs, which we have to acknowledge. Few States like
Kerala, Tripura, Bihar have referred TGs as “third gender or sex”. Certain
States recognize them as “third category”. Few benefits have also been
extended by certain other States. Our neighbouring countries have also
upheld their fundamental rights and right to live with dignity.
71. The Supreme Court of Nepal in Sunil Babu Pant & Ors. v. Nepal
Government (Writ Petition No.917 of 2007 decided on 21st December, 2007),
spoke on the rights of Transgenders as follows:-

“the fundamental rights comprised under Part II of the Constitution
are enforceable fundamental human rights guaranteed to the citizens
against the State. For this reason, the fundamental rights stipulated
in Part III are the rights similarly vested in the third gender people
as human beings. The homosexuals and third gender people are also
human beings as other men and women are, and they are the citizens of
this country as well…. Thus, the people other than ‘men’ and ‘women’,
including the people of ‘third gender’ cannot be discriminated. The
State should recognize the existence of all natural persons including
the people of third gender other than the men and women. And it
cannot deprive the people of third gender from enjoying the
fundamental rights provided by Part III of the Constitution.”

 

72. The Supreme Court of Pakistan in Dr. Mohammad Aslam Khaki & Anr. V.
Senior Superintendent of Police (Operation) Rawalpindi & Ors. (Constitution
Petition No.43 of 2009) decided on 22nd March, 2011, had occasion to
consider the rights of eunuchs and held as follows:-

“Needless to observe that eunuchs in their rights are citizens of this
country and subject to the Constitution of the Islamic Republic of
Pakistan, 1973, their rights, obligations including right to life and
dignity are equally protected. Thus no discrimination, for any
reason, is possible against them as far as their rights and
obligations are concerned. The Government functionaries both at
federal and provincial levels are bound to provide them protection of
life and property and secure their dignity as well, as is done in case
of other citizens.”
73. We may remind ourselves of the historical presence of the third
gender in this country as well as in the neighbouring countries.

74. Article 21, as already indicated, protects one’s right of self-
determination of the gender to which a person belongs. Determination of
gender to which a person belongs is to be decided by the person concerned.
In other words, gender identity is integral to the dignity of an individual
and is at the core of “personal autonomy” and “self-determination”.
Hijras/Eunuchs, therefore, have to be considered as Third Gender, over and
above binary genders under our Constitution and the laws.
75. Articles 14, 15, 16, 19 and 21, above discussion, would indicate, do
not exclude Hijras/Transgenders from its ambit, but Indian law on the whole
recognize the paradigm of binary genders of male and female, based on one’s
biological sex. As already indicated, we cannot accept the Corbett
principle of “Biological Test”, rather we prefer to follow the psyche of
the person in determining sex and gender and prefer the “Psychological
Test” instead of “Biological Test”. Binary notion of gender reflects in
the Indian Penal Code, for example, Section 8, 10, etc. and also in the
laws related to marriage, adoption, divorce, inheritance, succession and
other welfare legislations like NAREGA, 2005, etc. Non-recognition of the
identity of Hijras/Transgenders in the various legislations denies them
equal protection of law and they face wide-spread discrimination.

 

76. Article 14 has used the expression “person” and the Article 15 has
used the expression “citizen” and “sex” so also Article 16. Article 19 has
also used the expression “citizen”. Article 21 has used the expression
“person”. All these expressions, which are “gender neutral” evidently
refer to human-beings. Hence, they take within their sweep
Hijras/Transgenders and are not as such limited to male or female gender.
Gender identity as already indicated forms the core of one’s personal self,
based on self identification, not on surgical or medical procedure. Gender
identity, in our view, is an integral part of sex and no citizen can be
discriminated on the ground of gender identity, including those who
identify as third gender.

77. We, therefore, conclude that discrimination on the basis of sexual
orientation or gender identity includes any discrimination, exclusion,
restriction or preference, which has the effect of nullifying or
transposing equality by the law or the equal protection of laws guaranteed
under our Constitution, and hence we are inclined to give various
directions to safeguard the constitutional rights of the members of the TG
community.

 

..………………………..J
(K.S. Radhakrishnan)
A.K. SIKRI,J.

78. I have carefully, and with lot of interest, gone through the
perspicuous opinion of my brother Radhakrishnan,J. I am entirely in
agreement with the discussion contained in the said judgment on all the
cardinal issues that have arisen for consideration in these proceedings. At
the same time, having regard to the fact that the issues involved are of
seminal importance, I am also inclined to pen down my thoughts.

79. As is clear, these petitions essentially raise an issue of
“Gender Identity”, which is the core issue. It has two facets, viz.:
“(a) Whether a person who is born as a male with predominantly
female orientation (or vice-versa), has a right to get himself to be
recognized as a female as per his choice moreso, when such a person
after having undergone operational procedure, changes his/her sex as
well;
(b) Whether transgender (TG), who are neither males nor females, have
a right to be identified and categorized as a “third gender”?
80. We would hasten to add that it is the second issue with which we are
primarily concerned in these petitions though in the process of discussion,
first issue which is somewhat inter-related, has also popped up.

81. Indubitably, the issue of choice of gender identify has all the
trappings of a human rights. That apart, as it becomes clear from the
reading of the judgment of my esteemed Brother Radhakrishnan,J., the issue
is not limited to the exercise of choice of gender/sex. Many rights which
flow from this choice also come into play, inasmuch not giving them the
status of a third gender results in depriving the community of TGs of many
of their valuable rights and privileges which other persons enjoy as
citizens of this Country. There is also deprivation of social and cultural
participation which results into eclipsing their access to education and
health services. Radhakrishnan,J. has exhaustively described the term
‘Transgender’ as an umbrella term which embraces within itself a wide range
of identities and experiences including but not limited to pre-
operative/post-operative trans sexual people who strongly identify with the
gender opposite to their biological sex i.e. male/ female. Therein, the
history of transgenders in India is also traced and while doing so, there
is mention of upon the draconian legislation enacted during the British
Rule, known as Criminal Tribes Act, 1871 which treated, per se, the entire
community of Hizra persons as innately ‘criminals’, ‘addicted to the
systematic commission of non-bailable offences’.

82. With these introductory remarks, I revert to the two facets of
pivotal importance mentioned above. Before embarking on the discussion, I
may clarify that my endeavour would be not to repeat the discussion
contained in the judgment of my Brother Radhakrishnan, J., as I agree with
every word written therein. However, at times, if some of the observations
are re-narrated, that would be only with a view to bring continuity in the
thought process.
(1) Re: Right of a person to have the gender of his/her choice.
When a child is born, at the time of birth itself, sex is assigned to
him/her. A child would be treated with that sex thereafter, i.e. either a
male or a female. However, as explained in detail in the accompanying
judgment, some persons, though relatively very small in number, may born
with bodies which incorporate both or certain aspects of both male or
female physiology. It may also happen that though a person is born as a
male, because of some genital anatomy problems his innate perception may be
that of a female and all his actions would be female oriented. The position
may be exactly the opposite wherein a person born as female may behave like
a male person.

83. In earlier times though one could observe such characteristics, at
the same time the underlying rationale or reason behind such a behavior was
not known. Over a period of time, with in depth study and research of such
physical and psychological factors bevaviour, the causes of this behaviour
have become discernable which in turn, has led to some changes in societal
norms. Society has starting accepting, though slowly, these have accepted
the behavioral norms of such persons without treating it as abnormal.
Further, medical science has leaped forward to such an extent that even
physiology appearance of a person can be changed through surgical
procedures, from male to female and vice-versa. In this way, such persons
are able to acquire the body which is in conformity with the perception of
their gender/gender characteristics. In order to ensure that law also
keeps pace with the aforesaid progress in medical science, various
countries have come out with Legislation conferring rights on such persons
to recognize their gender identity based on reassigned sex after undergoing
Sex Re-Assignment Surgery (SRS). Law and judgments given by the courts in
other countries have been exhaustively and grandiloquently traversed by my
learned Brother in his judgment, discussing amongst others, the Yogyakarta
principles, the relevant provisions of the Universal Declaration of Human
Rights 1948 and highlighting the statutory framework operating in those
countries.

84. The genesis of this recognition lies in the acknowledgment of another
fundamental and universal principal viz. “right of choice” given to an
individual which is the inseparable part of human rights. It is a matter
of historical significance that the 20th Century is often described as “the
age of rights”.

85. The most important lesson which was learnt as a result of Second
World War was the realization by the Governments of various countries about
the human dignity which needed to be cherished and protected. It is for
this reason that in the U.N.Charter, 1945, adopted immediately after the
Second World War, dignity of the individuals was mentioned as of core
value. The almost contemporaneous Universal Declaration of Human Rights
(1948) echoed same sentiments.

86. The underlined message in the aforesaid documents is the
acknowledgment that human rights are individual and have a definite linkage
of human development, both sharing common vision and with a common purpose.
Respect for human rights is the root for human development and realization
of full potential of each individual, which in turn leads to the
augmentation of human resources with progress of the nation. Empowerment of
the people through human development is the aim of human rights.

87. There is thus a universal recognition that human rights are rights
that “belong” to every person, and do not depend on the specifics of the
individual or the relationship between the right-holder and the right-
grantor. Moreover, human rights exist irrespective of the question whether
they are granted or recognized by the legal and social system within which
we live. They are devices to evaluate these existing arrangements: ideally,
these arrangements should not violate human rights. In other words, human
rights are moral, pre-legal rights. They are not granted by people nor can
they be taken away by them.

88. In international human rights law, equality is found upon two
complementary principles: non-discrimination and reasonable
differentiation. The principle of non-discrimination seeks to ensure that
all persons can equally enjoy and exercise all their rights and freedoms.
Discrimination occurs due to arbitrary denial of opportunities for equal
participation. For example, when public facilities and services are set on
standards out of the reach of the TGs, it leads to exclusion and denial of
rights. Equality not only implies preventing discrimination (example, the
protection of individuals against unfavourable treatment by introducing
anti- discrimination laws), but goes beyond in remedying discrimination
against groups suffering systematic discrimination in society. In concrete
terms, it means embracing the notion of positive rights, affirmative action
and reasonable accommodation.

89. Nevertheless, the Universal Declaration of Human Rights recognizes
that all human beings are born free and equal in dignity and rights and,
since the Covenant’s provisions apply fully to all members of society,
persons with disabilities are clearly entitled to the full range of rights
recognized in the Covenant. Moreover, the requirement contained in Article
2 of the Covenant that the rights enunciated will be exercised without
discrimination of any kind based on certain specified grounds or other
status clearly applies to cover persons with disabilities.

90. India attained independence within two years of adoption of the
aforesaid U.N.Charter and it was but natural that such a Bill of Rights
would assume prime importance insofar as thinking of the members of the
Constituent Assembly goes. It in fact did and we found chapter on
fundamental rights in Part-III of the Constitution. It is not necessary for
me, keeping in view the topic of today’s discussion, to embark on detailed
discussion on Chapter-III. Some of the provisions relevant for our purposes
would be Article 14, 15,16 and 21 of the Constitution which have already
been adverted to in detail in the accompanying judgment. At this juncture
it also needs to be emphasized simultaneously is that in addition to the
fundamental rights, Constitution makers also deemed it proper to impose
certain obligations on the State in the form of “Directive Principles of
State Policy” (Part-IV) as a mark of good governance. It is this part which
provides an ideal and purpose to our Constitution and delineates certain
principles which are fundamental in the governance of the country.
Dr.Ambedkar had explained the purpose of these Directive Principles in the
following manner (See Constituent Assembly debates):
“The Directive Principles are like the Instruments of
Instructions which were issued to the Governor-General and the
Governors of Colonies, and to those of India by the British
Government under the 1935 Government of India Act. What is called
“Directive Principles” is merely another name for the Instrument
of Instructions. The only difference is that they are
instructions to the legislature and the executive. Whoever
capture power will not be free to do what he likes with it. In
the exercise of it he will have to respect these instruments of
instructions which are called Directive Principles”.
91. The basic spirit of our Constitution is to provide each and every
person of the nation equal opportunity to grow as a human being,
irrespective of race, caste, religion, community and social status.
Granville Austin while analyzing the functioning of Indian Constitution in
first 50 years ha described three distinguished strands of Indian
Constitution: (i)protecting national unity and integrity, (ii)establishing
the institution and spirit of democracy; and (iii) fostering social
reforms. The Strands are mutually dependent, and inextricably intertwined
in what he elegantly describes as “a seamless web”. And there cannot be
social reforms till it is ensured that each and every citizen of this
country is able to exploit his/her potentials to the maximum. The
Constitution, although drafted by the Constituent Assembly, was meant for
the people of India and that is why it is given by the people to themselves
as expressed in the opening words “We the People”. What is the most
important gift to the common person given by this Constitution is
“fundamental rights” which may be called Human Rights as well.
92. The concept of equality in Article 14 so also the meaning of the words
‘life’, ‘liberty’ and ‘law’ in Article 21 have been considerably enlarged
by judicial decisions. Anything which is not ‘reasonable, just and fair’ is
not treated to be equal and is, therefore, violative of Article 14.
93. Speaking for the vision of our founding fathers, in State of
Karnataka v. Rangnatha Reddy (AIR 1978 SC 215), this Court speaking through
Justice Krishna Iyer observed:
“The social philosophy of the Constitution shapes
creative judicial vision and orientation. Our nation has, as
its dynamic doctrine, economic democracy sans which political
democracy is chimerical. We say so because our Constitution, in
Parts III and IV and elsewhere, ensouls such a value system, and
the debate in this case puts precisely this soul in peril….Our
thesis is that the dialectics of social justice should not be
missed if the synthesis of Parts III and Part IV is to influence
State action and court pronouncements. Constitutional problems
cannot be studied in a socio-economic vacuum, since socio-
cultural changes are the source of the new values, and sloughing
off old legal thought is part of the process the new equity-
loaded legality. A judge is a social scientist in his role as
constitutional invigilator and fails functionally if he forgets
this dimension in his complex duties.”

94. While interpreting Art. 21, this Court has comprehended such diverse
aspects as children in jail entitled to special treatment (Sheela Barse vs.
Union of India [(1986)3 SCC 596], health hazard due to pollution (Mehta
M.C. v. Union of India [(1987) 4 SCC 463], beggars interest in housing
(Kalidas Vs. State of J&K [(1987) 3 SCC 430] health hazard from harmful
drugs (Vincent Panikurlangara Vs. Union of India AIR 1987 SC 990), right of
speedy trial (Reghubir Singh Vs. State of Bihar, AIR 1987 SC 149),
handcuffing of prisoners(Aeltemesh Rein Vs. Union of India, AIR 1988 SC
1768), delay in execution of death sentence, immediate medical aid to
injured persons(Parmanand Katara Vs. Union of India, AIR 1989 SC 2039),
starvation deaths(Kishen Vs. State of Orissa, AIR 1989 SC 677), the right
to know(Reliance Petrochemicals Ltd. Vs. Indian Express Newspapers Bombay
Pvt. Ltd. AIR 1989 SC 190), right to open trial(Kehar Singh Vs. State
(Delhi Admn.) AIR 1988 SC 1883), inhuman conditions an after-care
home(Vikram Deo Singh Tomar Vs. State of Bihar, AIR 1988 SC 1782).

95. A most remarkable feature of this expansion of Art.21 is that many of
the non-justiciable Directive Principles embodied in Part IV of the
Constitution have now been resurrected as enforceable fundamental rights by
the magic wand of judicial activism, playing on Art.21 e.g.
(a) Right to pollution-free water and air (Subhash Kumar Vs. State of
Bihar, AIR 1991 SC 420).
(b) Right to a reasonable residence (Shantistar Builders Vs. Narayan
Khimalal Totame AIR 1990 SC 630).
(c) Right to food (Supra note 14), clothing, decent environment
(supra note 20) and even protection of cultural heritage (Ram Sharan
Autyanuprasi Vs. UOI, AIR 1989 SC 549) .
(d) Right of every child to a full development (Shantistar Builders
Vs. Narayan Khimalal Totame AIR 1990 SC 630).
(e) Right of residents of hilly-areas to access to roads(State of
H.P. Vs. Umed Ram Sharma, AIR 1986 SC 847).
(f) Right to education (Mohini Jain Vs. State of Karnataka, AIR 1992
SC 1858), but not for a professional degree (Unni Krishnan J.P. Vs. State
of A.P., AIR 1993 SC 2178).

96. A corollary of this development is that while so long the negative
language of Art.21 and use of the word ‘deprived’ was supposed to impose
upon the State the negative duty not to interfere with the life or liberty
of an individual without the sanction of law, the width and amplitude of
this provision has now imposed a positive obligation (Vincent
Panikurlangara Vs. UOI AIR 1987 SC 990) upon the State to take steps for
ensuring to the individual a better enjoyment of his life and dignity, e.g.

(i) Maintenance and improvement of public health (Vincent
Panikurlangara Vs. UOI AIR 1987 SC 990).
(ii) Elimination of water and air pollution (Mehta M.C. Vs. UOI
(1987) 4 SCC 463).
(iii) Improvement of means of communication (State of H.P. Vs. Umed
Ram Sharma AIR 1986 SC 847).
(iv) Rehabilitation of bonded labourers (Bandhuva Mukti Morcha Vs.
UOI, AIR 1984 SC 802).
(v) Providing human conditions if prisons (Sher Singh Vs. State of
Punjab AIR 1983 SC 465) and protective homes (Sheela Barse Vs. UOI (1986)
3 SCC 596).
(vi) Providing hygienic condition in a slaughter-house (Buffalo
Traders Welfare Ass. Vs. Maneka Gandhi (1994) Suppl (3) SCC 448) .

97. The common golden thread which passes through all these
pronouncements is that Art.21 guarantees enjoyment of life by all citizens
of this country with dignity, viewing this human rights in terms of human
development.

98. The concepts of justice social, economic and political, equality of
status and of opportunity and of assuring dignity of the individual
incorporated in the Preamble, clearly recognize the right of one and all
amongst the citizens of these basic essentials designed to flower the
citizen’s personality to its fullest. The concept of equality helps the
citizens in reaching their highest potential.

99. Thus, the emphasis is on the development of an individual in all
respects. The basic principle of the dignity and freedom of the individual
is common to all nations, particularly those having democratic set up.
Democracy requires us to respect and develop the free spirit of human being
which is responsible for all progress in human history. Democracy is also a
method by which we attempt to raise the living standard of the people and
to give opportunities to every person to develop his/her personality. It is
founded on peaceful co-existence and cooperative living. If democracy is
based on the recognition of the individuality and dignity of man, as a
fortiori we have to recognize the right of a human being to choose his
sex/gender identity which is integral his/her personality and is one of the
most basic aspect of self-determination dignity and freedom. In fact, there
is a growing recognition that the true measure of development of a nation
is not economic growth; it is human dignity.

100. More than 225 years ago, Immanuel Kant propounded the doctrine of
free will, namely the free willing individual as a natural law ideal.
Without going into the detail analysis of his aforesaid theory of justice
(as we are not concerned with the analysis of his jurisprudence) what we
want to point out is his emphasis on the “freedom” of human volition. The
concepts of volition and freedom are “pure”, that is not drawn from
experience. They are independent of any particular body of moral or legal
rules. They are presuppositions of all such rules, valid and necessary for
all of them.

101. Over a period of time, two divergent interpretations of the Kantian
criterion of justice came to be discussed. One trend was an increasing
stress on the maximum of individual freedom of action as the end of law.
This may not be accepted and was criticized by the protagonist of ‘hedonist
utilitarianism’, notably Benthem. This school of thoughts laid emphasis on
the welfare of the society rather than an individual by propounding the
principle of maximum of happiness to most of the people. Fortunately, in
the instant case, there is no such dichotomy between the individual
freedom/liberty we are discussing, as against public good. On the contrary,
granting the right to choose gender leads to public good. The second
tendency of Kantian criterion of justice was found in re-interpreting
“freedom” in terms not merely of absence of restraint but in terms of
attainment of individual perfection. It is this latter trend with which we
are concerned in the present case and this holds good even today. As
pointed out above, after the Second World War, in the form of U.N.Charter
and thereafter there is more emphasis on the attainment of individual
perfection. In that united sense at least there is a revival of natural law
theory of justice. Blackstone, in the opening pages in his ‘Vattelian
Fashion’ said that the principal aim of society “is to protect individuals
in the enjoyment of those absolute rights which were vested in them by the
immutable laws of nature……”

102. In fact, the recognition that every individual has fundamental right
to achieve the fullest potential, is founded on the principle that all
round growth of an individual leads to common public good. After all, human
beings are also valuable asset of any country who contribute to the growth
and welfare of their nation and the society. A person who is born with a
particular sex and his forced to grow up identifying with that sex, and not
a sex that his/her psychological behavior identifies with, faces
innumerable obstacles in growing up. In an article appeared in the magazine
“Eye” of the Sunday Indian Express (March 9-15, 2014) a person born as a
boy but with trappings of female ( who is now a female after SRS) has
narrated these difficulties in the following manner:

“The other children treated me as a boy, but I preferred playing
with girls. Unfortunately, grown-ups consider that okay only as
long as you are a small child. The constant inner conflict made
things difficult for me and, as I grew up, I began to dread
social interactions”.

 

103. Such a person, carrying dual entity simultaneously, would encounter
mental and psychological difficulties which would hinder his/her normal
mental and even physical growth. It is not even easy for such a person to
take a decision to undergo SRS procedure which requires strong mental state
of affairs. However, once that is decided and the sex is changed in tune
with psychological behavior, it facilitates spending the life smoothly.
Even the process of transition is not smooth. The transition from a
man to a woman is not an overnight process. It is a “painfully” long
procedure that requires a lot of patience. A person must first undergo
hormone therapy and, if possible, live as a member of the desired sex for a
while. To be eligible for hormone therapy, the person needs at least two
psychiatrists to certify that he or she is mentally sound, and
schizophrenia, depression and transvestism have to be ruled out first. The
psychiatric evaluation involved a serious a questions on how Sunaina felt,
when she got to know of her confusion and need for sex change, whether she
is a recluse, her socio-economic condition, among other things.

104. In the same article appearing in the “Eye” referred to above, the
person who had undergone the operation and became a complete girl, Sunaina
(name changed) narrates the benefit which ensued because of change in sex,
in harmony with her emotional and psychological character, as is clear from
the following passage in that article:
“Like many other single people in the city, she can spend hours
watching Friends, and reading thrillers and Harry Potter. A new
happiness has taken seed in her and she says it does not feel that
she ever had a male body. “I am a person who likes to laugh. Till
my surgery, behind every smile of mine, there was a struggle. Now
it’s about time that I laughed for real. I have never had a
relationship in my life, because somewhere, I always wanted to be
treated as a girl. Now, that I am a woman, I am open to a new
life, new relationships. I don’t have to hide anymore, I don’t
feel trapped anymore. I love coding and my job. I love cooking. I
am learning French and when my left foot recovers fully, I plan to
learn dancing. And, for the first time this year, I will vote with
my new name. I am looking forward to that,” she says.

 

105. If a person has changed his/her sex in tune with his/her gender
characteristics and perception ,which has become possible because of the
advancement in medical science, and when that is permitted by in medical
ethics with no legal embargo, we do not find any impediment, legal or
otherwise, in giving due recognition to the gender identity based on the
reassign sex after undergoing SRS.
106. For these reasons, we are of the opinion that even in the absence
of any statutory regime in this country, a person has a constitutional
right to get the recognition as male or female after SRS, which was not
only his/her gender characteristic but has become his/her physical form as
well.
(2) Re: Right of TG to be identified and categorized as “third
gender”.

107. At the outset, it may be clarified that the term ‘transgender’ is
used in a wider sense, in the present age. Even Gay, Lesbian, bisexual are
included by the descriptor ‘transgender’. Etymologically, the term
‘transgender’ is derived from two words, namely ‘trans’ and ‘gender’.
Former is a Latin word which means ‘across’ or ‘beyond’. The grammatical
meaning of ‘transgender’, therefore, is across or beyond gender. This has
come to be known as umbrella term which includes Gay men, Lesbians,
bisexuals, and cross dressers within its scope. However, while dealing with
the present issue we are not concerned with this aforesaid wider meaning of
the expression transgender.

108. It is to be emphasized that Transgender in India have assumed
distinct and separate class/category which is not prevalent in other parts
of the World except in some neighbouring countries . In this country, TG
community comprise of Hijaras, enunch, Kothis, Aravanis, Jogappas, Shiv-
Shakthis etc. In Indian community transgender are referred as Hizra or the
third gendered people. There exists wide range of transgender-related
identities, cultures, or experience –including Hijras, Aravanis, Kothis,
jogtas/Jogappas, and Shiv-Shakthis (Hijras: They are biological males who
reject their masculinity identity in due course of time to identify either
as women, or ‘not men’. Aravanis: Hijras in Tamil Nadu identify as
‘Aravani’. Kothi: Kothis are heterogeneous group. Kothis can be described
as biological males who show varying degrees of ‘feminity’.
Jogtas/Jogappas: They are those who are dedicated to serve as servant of
Goddess Renukha Devi whose temples are present in Maharashtra and
Karnataka. Sometimes, Jogti Hijras are used to denote such male-to-female
transgender persons who are devotees of Goddess Renukha and are also from
the Hijra community. Shiv-Shakthis: They are considered as males who are
possessed by or particularly close to a goddess and who have feminine
gender expression). The way they behave and acts differs from the normative
gender role of a men and women. For them, furthering life is far more
difficult since such people are neither categorized as men nor women and
this deviation is unacceptable to society’s vast majority. Endeavour to
live a life with dignity is even worse. Obviously transvestites, the hijra
beg from merchants who quickly, under threat of obscene abuse, respond to
the silent demands of such detested individuals. On occasion, especially
festival days, they press their claims with boisterous and ribald singing
and dancing.( A Right to Exist: Eunuchs and the State in Nineteenth-Century
India Laurence W. Preston Modern Asian Studies, Vol.21,No.2 (1987), pp.371-
387).

109. Therefore, we make it clear at the outset that when we discuss
about the question of conferring distinct identity, we are restrictive in
our meaning which has to be given to TG community i.e. hijra etc., as
explained above.

110. Their historical background and individual scenario has been stated
in detail in the accompanying judgment rendered by my learned Brother. Few
things which follow from this discussion are summed up below:
“(a) Though in the past TG in India was treated with great respect,
that does not remain the scenario any longer. Attrition in their
status was triggered with the passing of the Criminal Tribes Act, 1871
which deemed the entire community of Hijara persons as innately
‘criminal’ and ‘adapted to the systematic commission of non-bailable
offences’. This dogmatism and indoctrination of Indian people with
aforesaid presumption, was totally capricious and nefarious. There
could not have been more harm caused to this community with the
passing of the aforesaid brutal Legislation during British Regime with
the vicious and savage this mind set. To add insult to the irreparable
injury caused, Section 377 of the Indian Penal Code was misused and
abused as there was a tendency, in British period, to arrest and
prosecute TG persons under Section 377 merely on suspicion. To undergo
this sordid historical harm caused to TGs of India, there is a need
for incessant efforts with effervescence.
(b) There may have been marginal improvement in the social and
economic condition of TGs in India. It is still far from satisfactory
and these TGs continue to face different kinds of economic blockade
and social degradation. They still face multiple forms of oppression
in this country. Discrimination qua them is clearly discernable in
various fields including health care, employment, education, social
cohesion etc.
(c) The TGs are also citizens of this country. They also have equal
right to achieve their full potential as human beings. For this
purpose, not only they are entitled to proper education, social
assimilation, access to public and other places but employment
opportunities as well. The discussion above while dealing with the
first issue, therefore, equally applies to this issue as well.
111. We are of the firm opinion that by recognizing such TGs as third
gender, they would be able to enjoy their human rights, to which they are
largely deprived of for want of this recognition. As mentioned above, the
issue of transgender is not merely a social or medical issue but there is a
need to adopt human right approach towards transgenders which may focus on
functioning as an interaction between a person and their environment
highlighting the role of society and changing the stigma attached to them.
TGs face many disadvantages due to various reasons, particularly for gender
abnormality which in certain level needs to physical and mental disability.
Up till recently they were subjected to cruelty, pity or charity.
Fortunately, there is a paradigm shift in thinking from the aforesaid
approach to a rights based approach. Though, this may be the thinking of
human rights activist, the society has not kept pace with this shift. There
appears to be limited public knowledge and understanding of same-sex sexual
orientation and people whose gender identity and expression are incongruent
with their biological sex. As a result of this approach, such persons are
socially excluded from the mainstream of the society and they are denied
equal access to those fundamental rights and freedoms that the other people
enjoy freely.(See, Hijras/Transgender Women in India: HIV, Human Rights and
Social Exclusion, UNDP report on India Issue: December, 2010).

 

112. Some of the common and reported problem that transgender most
commonly suffer are: harassment by the police in public places, harassment
at home, police entrapment, rape, discriminations, abuse in public places
et.al. The other major problems that the transgender people face in their
daily life are discrimination, lack of educational facilities, lack of
medical facilities, homelessness, unemployment, depression, hormone pill
abuse, tobacco and alcohol abuse, and problems related to marriage and
adoption. In spite of the adoption of Universal Declaration of Human Rights
(UDHR) in the year 1948, the inherent dignity, equality, respect and rights
of all human beings throughout the world, the transgender are denied basic
human rights. This denial is premised on a prevalent juridical assumption
that the law should target discrimination based on sex (i.e., whether a
person is anatomically male or female), rather than gender (i.e., whether
a person has qualities that society consider masculine or feminine
(Katherine M.Franke, The Central Mistake of Sex Discrimination Law: the
Disaggregation of Sex from Gender, 144 U.Pa.Rev.1,3 (1995) (arguing that by
defining sex in biological terms, the law has failed to distinguish sex
from gender, and sexual differentiation from sex discrimination).
Transgender people are generally excluded from the society and people think
transgenderism as a medical disease. Much like the disability, which in
earlier times was considered as an illness but later on looked upon as a
right based approach. The question whether transgenderism is a disease is
hotly debated in both the transgender and medical-psychiatric communities.
But a prevalent view regarding this is that transgenderism is not a disease
at all, but a benign normal variant of the human experience akin to left-
handedness.

113. Therefore, gender identification becomes very essential component
which is required for enjoying civil rights by this community. It is only
with this recognition that many rights attached to the sexual recognition
as ‘third gender’ would be available to this community more meaningfully
viz. the right to vote, the right to own property, the right to marry, the
right to claim a formal identity through a passport and a ration card, a
driver’s license, the right to education, employment, health so on.

114. Further, there seems to be no reason why a transgender must be
denied of basic human rights which includes Right to life and liberty with
dignity, Right to Privacy and freedom of expression, Right to Education and
Empowerment, Right against violence, Right against Exploitation and Right
against Discrimination. Constitution has fulfilled its duty of providing
rights to transgenders. Now it’s time for us to recognize this and to
extend and interpret the Constitution in such a manner to ensure a
dignified life of transgender people. All this can be achieved if the
beginning is made with the recognition that TG as third gender.

115. In order to translate the aforesaid rights of TGs into reality, it
becomes imperative to first assign them their proper ‘sex’. As is stated
earlier, at the time of birth of a child itself, sex is assigned. However,
it is either male or female. In the process, the society as well as law,
has completely ignored the basic human right of TGs to give them their
appropriate sex categorization. Up to now, they have either been treated as
male or female. This is not only improper as it is far from truth, but
indignified to these TGs and violates their human rights.

116. Though there may not be any statutory regime recognizing ‘third
gender’ for these TGs. However, we find enough justification to recognize
this right of theirs in natural law sphere. Further, such a justification
can be traced to the various provisions contained in Part III of the
Constitution relating to ‘Fundamental Rights’. In addition to the powerful
justification accomplished in the accompanying opinion of my esteemed
Brother, additional raison d’etre for this conclusion is stated
hereinafter.

117. We are in the age of democracy, that too substantive and liberal
democracy. Such a democracy is not based solely on the rule of people
through their representatives’ namely formal democracy. It also has other
percepts like Rule of Law, human rights, independence of judiciary,
separation of powers etc.

118. There is a recognition to the hard realty that without protection
for human rights there can be no democracy and no justification for
democracy. In this scenario, while working within the realm of separation
of powers (which is also fundamental to the substantive democracy), the
judicial role is not only to decide the dispute before the Court, but to
uphold the rule of law and ensure access to justice to the marginalized
section of the society. It cannot be denied that TGs belong to the
unprivileged class which is a marginalized section.

119. The role of the Court is to understand the central purpose and theme
of the Constitution for the welfare of the society. Our Constitution, like
the law of the society, is a living organism. It is based on a factual and
social realty that is constantly changing. Sometimes a change in the law
precedes societal change and is even intended to stimulate it. Sometimes, a
change in the law is the result in the social realty. When we discuss about
the rights of TGs in the constitutional context, we find that in order to
bring about complete paradigm shift, law has to play more pre-dominant
role. As TGs in India, are neither male nor female, treating them as
belonging to either of the aforesaid categories, is the denial of these
constitutional rights. It is the denial of social justice which in turn has
the effect of denying political and economic justice.

120. In Dattatraya Govind Mahajan vs. State of Maharashtra (AIR 1977 SC
915) this Court observed:
“Our Constitution is a tryst with destiny, preamble with
luscent solemnity in the words ‘Justice – social, economic and
political.’ The three great branches of Government, as creatures
of the Constitution, must remember this promise in their
fundamental role and forget it at their peril, for to do so will
be a betrayal of chose high values and goals which this nation
set for itself in its objective Resolution and whose elaborate
summation appears in Part IV of the Paramount Parchment. The
history of our country’s struggle for independence was the story
of a battle between the forces of socio-economic exploitation and
the masses of deprived people of varying degrees and the
Constitution sets the new sights of the nation…..Once we grasp
the dharma of the Constitution, the new orientation of the karma
of adjudication becomes clear. Our founding fathers, aware of our
social realities, forged our fighting faith and integrating
justice in its social, economic and political aspects. While
contemplating the meaning of the Articles of the Organic Law, the
Supreme Court shall not disown Social Justice.”

 

121. Oliver Wendlle Holmes said: “the life of law has been logical; it
has been experience”. It may be added that ‘the life of law is not just
logic or experience. The life of law is renewable based on experience and
logic, which adapted law to the new social realty’. Recognizing this fact,
the aforesaid provisions of the Constitution are required to be given new
and dynamic meaning with the inclusion of rights of TGs as well. In this
process, the first and foremost right is to recognize TGs as ‘third gender’
in law as well. This is a recognition of their right of equality enshrined
in Art.14 as well as their human right to life with dignity, which is the
mandate of the Art.21 of the Constitution. This interpretation is in
consonance with new social needs. By doing so, this Court is only bridging
the gap between the law and life and that is the primary role of the Court
in a democracy. It only amounts to giving purposive interpretation to the
aforesaid provisions of the Constitution so that it can adapt to the
changes in realty. Law without purpose has no raison d’etre. The purpose of
law is the evolution of a happy society. As Justice Iyer has aptly put:
“The purpose of law
is the establishment of the welfare of society “and a society
whose members enjoy welfare and happiness may be described as a
just society. It is a negation of justice to say that some
members, some groups, some minorities, some individuals do not
have welfare: on the other hand they suffer from ill-fare. So it
is axiomatic that law, if it is to fulfil itself, must produce a
contented, dynamic society which is at once meting out justice to
its members.”

122. It is now very well recognized that the Constitution is a living
character; its interpretation must be dynamic. It must be understood in a
way that intricate and advances modern realty. The judiciary is the
guardian of the Constitution and by ensuring to grant legitimate right that
is due to TGs, we are simply protecting the Constitution and the democracy
inasmuch as judicial protection and democracy in general and of human
rights in particular is a characteristic of our vibrant democracy.

123. As we have pointed out above, our Constitution inheres liberal and
substantive democracy with rule of law as an important and fundamental
pillar. It has its own internal morality based on dignity and equality of
all human beings. Rule of law demands protection of individual human
rights. Such rights are to be guaranteed to each and every human being.
These TGs, even though insignificant in numbers, are still human beings and
therefore they have every right to enjoy their human rights.

124. In National Human Rights Commission vs. State of Arunachal Pradesh
(AIR 1996 SC 1234), This Court observed:
“We are a country governed by the Rule of Law. Our
Constitution confers certain rights on every human being and
certain other rights on citizens. Every person is entitled to
equality before the law and equal protection of the laws.”

 

125. The rule of law is not merely public order. The rule of law is
social justice based on public order. The law exists to ensure proper
social life. Social life, however, is not a goal in itself but a means to
allow the individual to life in dignity and development himself. The human
being and human rights underlie this substantive perception of the rule of
law, with a proper balance among the different rights and between human
rights and the proper needs of society. The substantive rule of law “is the
rule of proper law, which balances the needs of society and the
individual.” This is the rule of law that strikes a balance between
society’s need for political independence, social equality, economic
development, and internal order, on the one hand, and the needs of the
individual, his personal liberty, and his human dignity on the other. It is
the duty of the Court to protect this rich concept of the rule of law.

126. By recognizing TGs as third gender, this Court is not only
upholding the rule of law but also advancing justice to the class, so far
deprived of their legitimate natural and constitutional rights. It is,
therefore, the only just solution which ensures justice not only to TGs but
also justice to the society as well. Social justice does not mean equality
before law in papers but to translate the spirit of the Constitution,
enshrined in the Preamble, the Fundamental Rights and the Directive
Principles of State Policy into action, whose arms are long enough to bring
within its reach and embrace this right of recognition to the TGs which
legitimately belongs to them.

127. Aristotle opined that treating all equal things equal and all
unequal things unequal amounts to justice. Kant was of the view that at the
basis of all conceptions of justice, no matter which culture or religion
has inspired them, lies the golden rule that you should treat others as you
would want everybody to treat everybody else, including yourself. When
Locke conceived of individual liberties, the individuals he had in mind
were independently rich males. Similarly, Kant thought of economically self-
sufficient males as the only possible citizens of a liberal democratic
state. These theories may not be relevant in today’s context as it is
perceived that the bias of their perspective is all too obvious to us. In
post-traditional liberal democratic theories of justice, the background
assumption is that humans have equal value and should, therefore, be
treated as equal, as well as by equal laws. This can be described as
‘Reflective Equilibrium’. The method of Reflective Equilibrium was first
introduced by Nelson Goodman in ‘Fact, Fiction and Forecast’ (1955).
However, it is John Rawls who elaborated this method of Reflective
Equilibrium by introducing the conception of ‘Justice as Fairness’. In his
‘Theory of Justice’, Rawls has proposed a model of just institutions for
democratic societies. Herein he draws on certain pre-theoretical elementary
moral beliefs (‘considered judgments’), which he assumes most members of
democratic societies would accept. “[Justice as fairness [….] tries to draw
solely upon basic intuitive ideas that are embedded in the political
institutions of a constitutional democratic regime and the public
traditions of their interpretations. Justice as fairness is a political
conception in part because it starts from within a certain political
tradition. Based on this preliminary understanding of just institutions in
a democratic society, Rawls aims at a set of universalistic rules with the
help of which the justice of present formal and informal institutions can
be assessed. The ensuing conception of justice is called ‘justice as
fairness’. When we combine Rawls’s notion of Justice as Fairness with the
notions of Distributive Justice, to which Noble Laureate Prof. Amartya Sen
has also subscribed, we get jurisprudential basis for doing justice to the
Vulnerable Groups which definitely include TGs. Once it is accepted that
the TGs are also part of vulnerable groups and marginalized section of the
society, we are only bringing them within the fold of aforesaid rights
recognized in respect of other classes falling in the marginalized group.
This is the minimum riposte in an attempt to assuage the insult and
injury suffered by them so far as to pave way for fast tracking the
realization of their human rights.

128. The aforesaid, thus, are my reasons for treating TGs as ‘third
gender’ for the purposes of safeguarding and enforcing appropriately their
rights guaranteed under the Constitution. These are my reasons in support
of our Constitution to the two issues in these petitions.

…………………….J.
(A.K.Sikri)
129. We, therefore, declare:
(1) Hijras, Eunuchs, apart from binary gender, be treated as “third
gender” for the purpose of safeguarding their rights under Part III
of our Constitution and the laws made by the Parliament and the
State Legislature.
(2) Transgender persons’ right to decide their self-identified gender
is also upheld and the Centre and State Governments are directed to
grant legal recognition of their gender identity such as male,
female or as third gender.
(3) We direct the Centre and the State Governments to take steps to
treat them as socially and educationally backward classes of
citizens and extend all kinds of reservation in cases of admission
in educational institutions and for public appointments.
(4) Centre and State Governments are directed to operate separate HIV
Sero-survellance Centres since Hijras/ Transgenders face several
sexual health issues.
(5) Centre and State Governments should seriously address the problems
being faced by Hijras/Transgenders such as fear, shame, gender
dysphoria, social pressure, depression, suicidal tendencies, social
stigma, etc. and any insistence for SRS for declaring one’s gender
is immoral and illegal.
(6) Centre and State Governments should take proper measures to provide
medical care to TGs in the hospitals and also provide them separate
public toilets and other facilities.
(7) Centre and State Governments should also take steps for framing
various social welfare schemes for their betterment.
(8) Centre and State Governments should take steps to create public
awareness so that TGs will feel that they are also part and parcel
of the social life and be not treated as untouchables.
(9) Centre and the State Governments should also take measures to
regain their respect and place in the society which once they
enjoyed in our cultural and social life.
130. We are informed an Expert Committee has already been constituted to
make an in-depth study of the problems faced by the Transgender community
and suggest measures that can be taken by the Government to ameliorate
their problems and to submit its report with recommendations within three
months of its constitution. Let the recommendations be examined based on
the legal declaration made in this Judgment and implemented within six
months.

131. Writ Petitions are, accordingly, allowed, as above.
…..………………………J.
(K.S. Radhakrishnan)

 
………………………….J.
(A.K. Sikri)
New Delhi,
April 15, 2014.

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