The recent spate of landmark court orders on the rights of women, LGBTQs and the differently abled, as well as freedom of speech and dissent, will have a far-reaching impact. They will also go a long way in restoring public faith in the judiciary, dogged by controversy over the last few years.
The rights of LGBTQs were upheld by the Allahabad High Court. Earlier this month, in the case of a Home Guard who was dismissed after a clip of him with his partner went viral, it explicitly ruled that no employee could be sacked for being gay. The court said “any display of affection” amongst the members of the LGBTQ community could not be construed as “indulgence in untoward activity” and restored him to service.
Right to love
Last month, the same court mandated police protection for a young LGBTQ couple in Uttar Pradesh’s Saharanpur town, noting that the rights of citizens who were under threat solely because of their sexual orientation must be safeguarded. It cited the Supreme Court ruling in the Navtej Singh Johar case: “The right to love...find fulfilment in a same-sex relationship is essential to a society which believes in freedom under a constitutional order based on rights”.
The Supreme Court took cognizance of the rights of the differently abled and those with learning disabilities in a significant judgment last month. The petitioner, it observed, suffered from dysgraphia (also known as writer’s cramp) and was denied a scribe during the civil service examination because he did not fit the standardised notion of “benchmark disability”.
The ruling may well lead to a better understanding and wider recognition of little-known disabilities such dysgraphia and dyscalculia. The apex court ordered that differently abled citizens be provided with a scribe to facilitate the taking of examinations and directed the Union Government to frame proper guidelines for the purpose.
The dignity and liberty of women formed the substance of a number of important rulings in the last fortnight. The Himachal Pradesh High Court, earlier this week, observed that a woman was not “cattle”, subject to the whims of her parents, and had the freedom to choose a partner from a lower caste. Waxing philosophical, the judge said the Christian notion of woman as ‘Adam’s rib’ did not apply in India, where the female has been on a higher pedestal since the Vedic era.
A noteworthy order was issued in the #MeToo defamation case, brought against journalist Priya Ramani for tweeting accusations of sexual harassment against former Union Minister M J Akbar.
In a judgment that is bound to have a positive impact on workplace conditions for women, Delhi Additional Chief Metropolitan Magistrate Ravindra Kumar Pandey held “the right of life and dignity of woman” superior to the right of reputation. He said they were free to articulate their grievances “at any platform of their choice and even after decades”.
Right to choose life partner
With reference to the so-called ‘love jihad’ law, actually more in the nature of an anti-conversion legislation, the Allahabad HC is examining its constitutional validity. However, it has consistently endorsed the woman’s right to choose her partner while interpreting matters involving interfaith couples.
In a case challenging the mandatory publishing of a 30-day notice under the Special Marriage Act, the court ruled in favour of the petitioners (an interfaith couple), saying that the procedure violated their fundamental right to liberty and privacy.
While hearing another matter involving an interfaith marriage in November 2020, it had held that the “right to live with a person of his/her choice irrespective of religion professed by them is intrinsic to right to life and personal liberty”. The following month, it passed yet another order in favour of an interfaith couple, saying that the woman had every right to “live her life on her own terms”.
It also came to the rescue of a man booked under the new law; he was accused of having an affair with a married woman of another faith and allegedly attempting to convert her. The court observed that the so-called “victim” was an “adult who understands her well-being” and had a fundamental right to privacy.
Free to disagree
As far as freedom of speech is concerned, the wording of Delhi Additional Sessions Judge Dharmendra Rana’s order, granting bail to climate activist and conspiracy-accused Disha Ravi is significant, upholding the right to “difference of opinion, disagreement, divergence, dissent, or for that matter, even disapprobation”. He adds that “Citizens...can’t be put behind bars simply because they choose to disagree with the state’s policies”.
Meanwhile, the Allahabad HC has taken a dim view of police overreach, in the form of notices and challans to people over ‘apprehensions’ of breach of peace. Last year, it had pulled up the state government for naming and shaming those allegedly involved in destruction of public property during the protests against the Citizenship Amendment Act (CAA). It had also ordered the release of NSA accused Dr Kafeel Khan, incarcerated for an allegedly anti-CAA speech.
Judges are at their best when they pro-actively and vigorously protect the fundamental and civil rights of citizens and reinforce constitutional values in letter and spirit. For those who were asking whether “the last bastion has fallen” and claiming that “jail, not bail” had become the rule, these recent interventions should restore a measure of faith in the judiciary.
The writer is a senior journalist with 35 years of experience in working with major newspapers and magazines. She is now an independent writer and author.