A Year After Supreme Court’s Sec 377 Order, LGBT+ Community Waits for Inclusive Laws

Reading down of section 377 of the Indian Penal Code (IPC) isn’t enough to secure the rights of the Lesbian, Gay, Bisexual, and Transgender (LGBT)+ community, according to a study that has highlighted the need to repeal section 377 to prevent its misuse in cases of violence involving same sex relations.

In a landmark judgment the SC, through a reading down of section 377 of the Indian Penal Code(IPC), decriminalised same sex consensual relationships on Sept 6 last year, but for the LGBT+ community legal inclusion is still a dream.

A study by Vidhi Centre for Legal Policy has highlighted the need for victim neutrality in provisions related to sexual offences in criminal law & repeal of section 377 to prevent its misuse in cases of sexual violence involving same sex couples. The analysis also takes into account concerns of Lesbian, Gay, Bisexual, and Transgender (LGBT)+ community members who participated in the consultations organised as part of the research.

The study titled “Queering the Law: Making Indian laws Lesbian, Gay, Bisexual, and Transgender (LGBT)+ Inclusive” analyses India’s legal regime across the broad themes of identity, violence, family & employment. “The objective of this analysis is to identify laws that either continue to operate in the male-female binary or discriminate against Lesbian, Gay, Bisexual, and Transgender (LGBT)+ persons. This study aims at building on the conversation for legal inclusion,” Akshat Agarwal, from Vidhi’s research team said.

The study on “Violence” draws attention to the complexity of existing criminal laws. For instance it is pointed out that provisions of the Indian Penal Code (IPC) related to offences of sexual nature operate in the male-female binary & assume sexual acts in the same binary.

Over 19 Lakh People Left Out from Final List of NRC Assam Yet Another Window Offered

The final list of National Register of Citizens (NRC) in Assam was published on Saturday excluding over 19 lakh people.

Whereas over three crore people have been found eligible for the inclusion in the final National Register of Citizens (NRC), Prateek Hajela, the State Coordinator of the National Register of Citizens (NRC), said in an official statement.

“A total of 3,11,21,004 persons are found eligible for inclusion in final National Register of Citizens (NRC) leaving out 19,06,657 persons, including those who didn’t submit their claims,” Hajela, said.

He, however, asserted that those who aren’t satisfied with the outcome of the claims can appeal before the Foreigners Tribunals.

The status of both inclusion & exclusion of the people from the list can be viewed online on the National Register of Citizens (NRC) website, www.nrcassam.nic.in.

The hard copies of the supplementary list of inclusions will be available for public view at National Register of Citizens (NRC) Seva Kendras (NSK), offices of the Deputy Commissioner (DC) & offices of the Circle Officer.

The list has segregated Indian citizens living in Assam from those who had illegally entered the state from Bangladesh after 1971.

The process of receipt of National Register of Citizens (NRC) application forms had started during the end of May in 2015 & ended on Aug 31 in 2015. A total of 3,30,27,661 members had applied through 68,37,660 applications.

under POCSO Act Two gets 20 years jail

The Haryana Police have secured the conviction of two persons, who were accused of kidnapping & raping a minor girl in Charkhi Dadri.

After holding them guilty, 20 years imprisonment had been awarded to them by the Court of Additional District & Session Judge, Charki Dadri with a fine of Rs 17,000 each.

According to a spokesman of the Police Department, A complaint was received against accused Akshay alias Ravi & Shiv Kumar, regarding kidnapping & raping a minor girl on Feb 16, 2017
Immediately after getting the complaint, Police had registered the case after recording the victim’s statement under section 451, 365 & 376 of Indian Penal Code (IPC) & 4 of Protection of Children from Sexual Offences (POCSO) Act. After the arrest of both accused, the police completed the investigation within 15 days & filed charge sheet in the court on March 4, 2017.
The Court after going through all the evidences, convicted both the accused after holding them guilty under various sections of IPC & POCSO Act & sentenced 20 years imprisonment with fine of Rs 10000 under section 376 of IPC, seven years imprisonment with fine of Rs1000 under section 365 of IPC, two years imprisonment with fine of Rs 1000 under section 451 of IPC & 10 years imprisonment with fine of Rs 5000 under section 4 of POCSO Act.

In case of non-payment of the fine, the convicts would have to undergo one-month additional imprisonment.

AES in Bihar: Providing all support to contain it, Centre tells Supreme Court

The Centre told the Supreme Court Wednesday that it was proactively providing all support to Bihar in containing and managing Acute Encephalitis Syndrome (AES) in which more than children have died.

In an affidavit filed on a plea seeking measures for containment of the disease, the Centre said Union Health Minister Harsh Vardhan had visited Bihar on June 16, to review the situation in Muzaffarpur.

It said that after the visit several decisions were taken including construction of a 100 bed Paediatric Intensive Care Unit (ICU) at SKMCH hospital in Muzaffarpur by the state government in one years from the funds of National Health Mission (NHM).

“The land for the same (100-bed Paediatric ICU) is available in the premise of the SKMCH hospital and will be provided by the state,” the affidavit said.

It said a decision has been taken to set up five virology labs in different districts of the state from the NHM funds and the location of the districts will be decided in consultation with the state government.

Detailing further decisions taken, the Centre said: “In the adjoining districts, 10-bed Paediatric ICUs to be setup so that such cases can be treated early and there is no unnecessary load on the facilities available at SKMCH. Funds for this are to be provided through NHM.”

The ministry said that to enable early detection and treatment of the hypoglycemia cases, a dedicated team of doctors will be placed in endemic Primary Health Centres with required facilities, at least for three-four months before and during expected onset of disease.

“As for present, the concerned PHCs and CHCs (Community Health Centres) should take prompt corrective measures for hypoglycemia at the facility itself to utilize the golden hour”, the affidavit said.

It said that a Super Speciality Block is being constructed at SKMCH hospital, Muzaffarpur and it would start functioning by first week of December.

Besides these steps, the affidavit said that Ministry of Earth Sciences has been requested to upgrade its IMD Observatory facility for improved monitoring of climate related parameters such as temperature humidity, rainfall and share it with the state government for better preparedness and management of AES.

It said the minister has decided to constitute inter-disciplinary, high quality research team for ascertaining the case of AES with specific reference to Muzaffarpur.

“The vacant positions of district epidemiologist and entomologist in Muzaffarpur to be filled up immediately by the state government,” the health ministry said added that health is a state subject as per the Constitutional provisions.

The apex court is hearing a petition filed by advocate Manohar Pratap who has said that he was deeply “pained and saddened” by the deaths of more than 126 children, mostly in the age group of one to 10 years, in Bihar due to AES.

Besides Centre, the apex court had also asked Bihar government to file its response on the issue.

In a shocking revelation about medical care facilities in Bihar, which is facing an outbreak of acute encephalitis syndrome, the state government Tuesday told the Supreme Court that there are only 5,205 doctors in government-run health centres against the sanctioned strength of 12,206.

The state government, in an affidavit filed in the apex court, said that only 5,634 nurses were there in government run hospitals and health centres against sanctioned strength of 19,155.

The court had on June 24 directed the state to apprise it about the status of public medical care facilities, nutrition and sanitation within a week in view of deaths of over 100 children in Muzaffarpur due to the outbreak of AES.

Regarding AES cases, the state government said 824 cases have been reported and the number of deaths was 157.

It, however, said that it was not known whether 24 deaths out of 215 cases were due to AES.

“State of Bihar had already taken all possible steps to prevent the spread of the disease by providing additional medical facilities at the affected region, public awareness campaign at the village level, involving various agencies to assist the government etc,” it said.

Symptoms of AES include high fever, convulsions and extremely low blood sugar levels. Among the factors said to trigger the syndrome are malnutrition.

There were more than 44,000 cases and nearly 6,000 deaths from encephalitis in India between 2008 and 2014, said a 2017 study published in The Indian Journal of Medical Research (IJMR).

Researchers said the patients often report acute onset of fever and altered consciousness, with a rapidly deteriorating clinical course, leading to death within hours.

Litchis grown in Muzaffarpur, the country’s largest litchi cultivation region, are said to contain a toxin which can cause a drop in blood sugar levels if consumed by a malnourished child.

Supreme Court awards nearly Rs 50 lakh compensation to disabled driver of deceased Punjab minister

A man who suffered permanently disability in an accident while driving the car of the thenD leader and Punjab cabinet minister Kanwaljit Singh in 2009 was on Monday awarded Rs 49.9 lakh compensation by the Supreme Court.

Singh, who was Punjab Cooperation Minister and Shiromani Akali Dal’s General Secretary, had died on March 29, 2009 at a hospital in Chandigarh following the accident.

His driver Parminder Singh, who suffered 100 per cent disability in the mishap, had moved the apex court for enhanced compensation.

A bench comprising Indu Malhotra and M R Shah concurred with the legal and factual findings of the Punjab and Haryana High Court on the award of compensation.

The high court had awarded Rs 32.40 lakh and the apex court raised it to Rs 49.9 lakh saying that the facts that the driver had repeated hospitalisation and the need of future medical expenses and attendant charges were not taken note of by high court.

“The appellant (driver) was produced before us. He was in an extremely pitiable state. On account of the removal of the frontal bone of the skull, half of his head has caved in. Furthermore, a deep circular incision was made in his throat, and his body was in an unstable condition, undergoing tremors. The Appellant is further suffering from hemiplegia, due to which the left side of his body is not functioning properly,” the judgement said.

“Given the debilitated state of the Appellant, no amount of money can compensate him. He has been in this condition since the age of 22 years when the accident took place, and will remain like this throughout his life…,” it added.

The driver has also been deprived of having a “normal married life with a family” and would require medical assistance from time to time and being completely dependant, he would require the help of an attendant throughout his life, it said.

He was driving the a Hyundai Elantra car of the minister on March 29, 2009 when it was rammed by a truck coming from opposite direction near Ludhiana.

The accident happened also due to “contributory negligence” of another truck which was wrongly parked on the road. The minister died at the hospital on the same day and the driver suffered grievous injuries and had undergone five corrective surgeries.

The court took note of the fact that both the truck drivers had invalid driving licenses and hence New India Assurance Co Ltd, the insurer of the offending trucks, had no liability to pay the compensation.

It referred to a judgement and said that if the driver of the offending vehicle does not possess a valid driving license, the principle of “pay and recover” can be ordered to direct the insurance company to the pay the victim and then recover the amount from the owner and the drivers of the offending vehicles.

“We deem it just and fair to direct the Respondent Insurance Company to pay the enhanced amount of compensation…to the appellant (driver) within a period of 12 weeks from the date of this judgment… Insurance Company is entitled to recover the amount from the owners and drivers of the two offending trucks,” it held.

As strikes end, Supreme Court defers hearing on security of doctors, keeps open ‘larger issue’ of their safety

The Supreme Court Tuesday deferred the hearing on a plea seeking protection of doctors in government hospitals, saying since doctors have called off their strike in West Bengal and other states, there is no urgency to hear the matter.

A bench of Justices Deepak Gupta and Surya Kant said it will not issue notice (to the Centre) but is keeping the larger issue of protection of doctors open.

“We agreed to hear the plea today as there was a strike by doctors and medical fraternity in West Bengal and other states. The strike has been called off and there appears no urgency to hear the petition. List (the matter) before an appropriate bench,” it said.

Meanwhile, the Indian Medical Association also filed an impleadment application seeking the court’s intervention into the plea already filed, saying protection needs to be provided to doctors across the country.

The bench said it needs to take a holistic view in providing security to doctors.

“We understand it is a serious issue but we can’t provide security to doctors at the cost of other citizens. We have to take a holistic view. We have to look at the larger picture. We are not against protection to doctors,” the bench said.

Doctors in Bengal had been on strike since two of their colleagues were assaulted allegedly by relatives of a patient after he died last week. They called off their protest Monday night after Chief Minister Mamata Banerjee in a meeting assured them of steps by her government to scale up security at state-run hospitals in the state.

The breakthrough came on a day health services especially Outpatient Departments (OPDs) were crippled across the country as doctors held protests and boycotted work to show solidarity with their colleagues in Bengal.

The plea in the top court was filed on Friday and had sought directions to Union ministries of home affairs and health and West Bengal to depute government-appointed security personnel at all state-run hospitals to ensure safety and security of doctors.

It had also sought directions to Bengal government to take the strictest legal and penal action against those who assaulted the two junior doctors at a hospital in Kolkata.

The plea had cited an IMA data to say that more than 75 percent doctors across the country have faced some form of violence.

It said the study concluded that 50 percent violent incidents have taken place in the Intensive Care Unit of hospitals and in 70 percent cases, relatives of patients were actively involved.

“The doctors are our saviours and particularly the doctor working in government hospitals are doing great national service, particularly to the poor and downtrodden of this country, in extremely adverse circumstances,” it had said.

Ecuador Constitutional Court Recognizes Same-Sex Marriage

In a landmark ruling, the Constitutional Court of Ecuador has recognized same-sex marriage. In Ecuador, the Civil Code defined Marriage as a ‘solemn contract by which a man and woman’. The case reached the Constitutional court as a same-sex couple Efraín Enrique Soria Alba and Ricardo Javier Benalcázar Tello, challenged the refusal by the registry to register their marriage on the ground that marriage exists only between a man and a woman ”

The court [5:4] found that there is no constitutional purpose to exclude from marriage the same-sex couples. It also observed that the exclusion to marriage of same-sex couples is unjustified, discriminatory and unconstitutional. Judge Ramiro Avila Santamaría penned the majority judgment. He said: “There are people of the same sex who demand the recognition of the right to marriage, considering it important in their life plans and invoking rights such as dignity, equality, identity and freedoms. This requirement, which did not exist or were not considered at the time of translating the legal texts, requires putting the current constitutional norms and legal norms, and adapt their content and interpretation to the current requirements.

“The understanding of marriage as an exclusive right of the heterosexual couples is a limitation that prevents access to rights that can mean, if that is decided by the people, better living conditions and greater security in the protection of the family through marriage. Allowing marriage to same-sex couples extends the possibilities of individual autonomy and the free development of the personality of the people with different sex-generic identity.” The majority judges observed that it is the people who take decision of their marriage and not the state. It said: “In relation to the right to form a family and choose the means to achieve it, the State should not intervene to prohibit marriage of people of the same sex. An interference this type, although legal, could be considered arbitrary.. The decision to form a family corresponds to the freedom of the private life of the people. In the same way, choosing the means to form a family, which can be the marriage, should be a free and voluntary decision of the people and not of the State.”

Criminalization Of Love Dilutes Compassion & Tolerance: Botswana High Court Decriminalizes Homosexuality

The High Court of Botswana has declared unconstitutional the provisions of its penal code which criminalises homosexuality and has struck them down. The ruling is on a petition filed by Letsweletse Motshidiemang who had contended that these provisions discriminate against homosexuals and that it interferes with their fundamental right not to be subjected to inhuman and degrading treatment or other such treatment.

The High Court bench comprising of Judges M. Leburu, AB Tafa and J.Dube also read down Section 167 of the Code Any regulation of conduct deemed indecent, done in private between consenting adults, is a violation of the constitutional right to privacy and liberty. Sections 164 (a) and (c) and 165 of the Penal Code criminalised sexual intercourse and/or attempt thereof between persons of the same sex and/or gender and was punishable with imprisonment up to seven years. Section 167 proscribed both public and private gross indecency.

The court said that criminalising consensual same sex in private, between adults is not in the public interest and the same oppress a minority and then target and mark them for an innate attribute that they have no control over and which they are singularly unable to change. Consensual sex conduct, per anus, in my view, is merely a variety of human sexuality, said judge Leburu, speaking for the bench. The court also said that these provisions impairs the right to express his sexuality in private, with his preferred adult partner.

The judgment also refers to observations made by Justice Indu Malhotra and Justice DY Chandrachud in Navtej Singh Johar, in which Section 377 of the Indian Penal Code, dealing with sodomy laws, was struck down as unconstitutional.

Kerala High Court Order : Mere possession of sexually explicit photos not punishable

New Delhi : Mere possession of sexually explicit photos will not amount to a crime under the Indecent Representation of Women (Prohibition) Act, the Kerala High Court has ruled.The court, while quashing criminal proceedings against a man and a woman, however, made it clear that publication or distribution of such photos is punishable under the law.

“If an adult person has a photograph of himself or herself in his or her possession which is sexually explicit in nature, the provisions of the Act 60 of 1986 will not apply, unless the prosecution has a case that those photographs were distributed or published for advertisement or for any other incidental purpose,” Justice Raja Vijayaraghavan said in a recent order.

The high court gave its verdict on a petition seeking to quash the proceedings against the man and the woman, pending before a magistrate court in Kollam.

The Kollam East Police had registered the case in 2008.

Police during a search operation at the transport bus stand in Kollam had checked the bags of the two persons, who were together, and found two cameras inside.

On inspection, it was found that they contained explicit pictures and videos of one of the persons.

They were arrested and the cameras were seized.

A case was registered and after investigation, a final report was put before a judicial magistrate in Kollam.

“In the case on hand, there is no case for the prosecution that the petitioners has advertised or circulated their private pictures found in the cameras which were in their possession,” the high court said.

“When the factual scenario is examined in the background of the legal principles as laid down by the apex court in the state of Haryana vs Bhajan Lal, the inevitable conclusion is that the criminal proceedings against the petitioners are nothing, but an abuse of the process of law,” it said.

Sexual Harassment Case: Two Former Judges Question Handling Of Allegations Against Chief Justice Gogoi

Two judges who participated in the historic press conference by four sitting Supreme Court judges in January last year have questioned the Supreme Court’s handling of the sexual harassment allegations levelled against Chief Justice of India Ranjan Gogoi. Writing for The Indian Express, Justice Madan Lokur—who along with Justice Jasti Chelameswar, Justice Ranjan Gogoi and Justice Kurian Joseph had raised concerns over the conduct of former Chief Justice Dipak Misra—said the top court’s handling of the allegations reflected clear bias against the staffer who had made them. This, according to Justice Lokur, made him believe that she wasn’t fairly treated. He also questioned the need for the chief justice to attend the open court hearing that dealt with the allegations.

A former Supreme Court staffer had, in a letter addressed to all current judges of the apex court, alleged that Justice Gogoi made unwanted sexual advances to her twice in October 2018, following which her family was victimised. In a sudden hearing on April 20, 2019, a Supreme Court bench took up the matter for hearing. Justice Gogoi, who was also part of the bench, said in the court there was an attempt to attack the independence of the judiciary. An internal committee set up under Justice SA Bobde absolved the chief justice of any wrongdoing.

“The matter was reopened the same day (Saturday) at 10:30 am in Court No 1 of the Supreme Court on a mention having been made by the Solicitor General of India,” Justice Lokur wrote on the hearing. “It isn’t clear before whom he mentioned the matter, when and why was the mention entertained and what procedure was followed.”

Justice Lokur explained how the hearing was unprecedented. “The record of proceedings didn’t indicate the presence of the CJI on the Bench,” he wrote. “In other words, either the news reporters were seeing and hearing the equivalent of Banquo’s ghost (a reference to the character in Shakespeare’s Macbeth) in Court No. 1 or the record of proceedings was incorrect—tampering with the record may be to strong a word.”

The judge also highlighted how the internal committee meant to probe into the allegations was constituted by the chief justice himself and that it didn’t look into allegations that the complainant’s family was further victimised after the incidents. “The mandate given to the internal committee was limited to the allegation of unwanted physical contact, itself difficult to prove. The mandate did not include the allegation of victimisation.”