The Supreme Court on Thursday agreed to hear a batch of petitions challenging the Constitution Bench judgement of the Apex Court, which refused to grant legal recognition for queer marriages in India.

The matter was mentioned by Senior Advocate Mukul Rohatgi, seeking an urgent hearing on the same.

Noting that the matter was listed for November 28, the former Attorney general of India requested the Apex Court that it should not be deleted.

He submitted that the review petitions should be heard in open court since the Constitution bench which delivered the verdict had denied relief despite all the judges on the bench agreeing that denial of right to marriage between persons of same gender amounted to discrimination against such persons.

He said that if there was discrimination, then there has to be a remedy. Lives of a large number of people depended on the verdict, added the Senior Advocate.

The Bench led by Chief Justice of India DY Chandrachud observed that it had not gone through the petitions.

The Apex Court said that it would look into the pleas and then decide.

The review petitioners argued that the verdict amounted to abdication of the Court’s duty to uphold and protect fundamental rights.

One of the pleas submitted that the verdict suffered from ‘errors’ apparent on the face of the record, calling it ‘self-contradictory’ and ‘manifestly unjust’. 

It said the Apex Court recognised that the petitioners’ fundamental rights were being violated by the State through discrimination, but failed to take the logical next step of prohibiting this discrimination.

On October 17, the Constitution Bench of five judges, in an unanimous verdict, had refused to grant legal recognition to same-sex marriages, while holding that same-sex couples were not be discriminated against or harassed.

The Apex Court was divided over granting adoption rights to homosexual couples with a 3:2 verdict against giving such entitlement.

The Bench was unanimous also in saying that the right to marry cannot be given the weightage of a fundamental right.

It held that the law did not recognise the right to marry or the right of same-sex couples to enter into civil unions till the Parliament made laws enabling the same.

The CJI said that he has dealt with the issue of judicial review and separation of powers. The Doctrine of separation of powers meant that each of the three organs of the state performed distinct functions. No branch could carry out any others’ function, he added.

The Apex Court said that the Union of India suggested that this Court would violate the doctrine of separation of powers if it determined the list. But the doctrine of separation of powers did not bar the power of judicial review, it added.

The CJI said that queerness was neither urban nor elitist. Summing up, he said that the Apex Court was recording the statement of the Solicitor General that the Union Government would constitute a committee to decide on the rights and entitlements of persons in queer unions.

“As per the CJI, the Government of India should proceed with its committee, headed by the Cabinet Secretary, to address the raft of concerns of same-sex couples, including ration cards, pension, gratuity and succession.

Justice Bhat put forward his views, saying that the Court cannot create a legal framework for queer couples as the duty for the same lies with the legislature, noting that several aspects have to be taken into consideration.

Justice Bhat added that denial of benefits such as PF, ESI, pension etc to queer partners may have an adverse discriminatory effect.

The Judge said that addressing these concerns meant a range of policy choices, which involved a multiple legislative architecture.

Justice Bhat said that he, along with other on board judges, agreed with the CJI on the right of transgender persons in heterosexual relationships to marry as per existing laws.

Justice Bhat said that he had the benefit of perusing the concurring opinion of Justice Narasimha and endorse it fully.

Justice Narasimha said that it would not be constitutionally permissible to recognise a right to civil union mirroring a marriage.

Justice Narasimha agreed with the views of Justice Bhat on the constitutionality of the Central Adoption Regulatory Authority (CARA) regulations, while CJI Chandrachud disagreed to the same.

On CARA regulations, CJI Chandrachud said that while the Union of India has not proved that precluding unmarried couples from adopting was in the best interest of the child, CARA has exceeded its authority in barring unmarried couples.

He said the differentiation between married and unmarried couples has no reasonable nexus with CARA’s objective – the best interests of the child. It cannot be assumed that unmarried couples are not serious about their relationship.

CJI Chandrachud said that there was no material on record to prove that only a married heterosexual couple can provide stability to a child.

He observed that CARA Regulation 5(3) indirectly discriminated against atypical unions. A queer person can adopt only in an individual capacity. This has the effect of reinforcing the discrimination against queer community.

The CJI said that the law cannot assume that only heterosexual couples can be good parents. This would amount to discrimination. So the adoption regulations were violative of the Constitution for discrimination against queer couples.

As a result, the CARA circular was violative of Article 15 of the Constitution.

The CJI said he has a disagreement with the judgment of Justice Bhat.

He said contrary to Justice Bhat’s judgment, directions in my judgment does not result in the creation of an institution, rather they give effect to the fundamental rights under Part 3 of the Constitution.

As per the CJI, Justice Bhat also acknowledged that the State was discriminating against the queer community, but didnot exercise the powers under Article 32 to alleviate their plight, he added.

The CJI also noted that Justice Bhat had failed to ascertain if the CARA regulation was discriminatory.

Justice Narasimha added that the impact of the legislative framework in this case required a deliberative exercise and for the same, the legislature waentrusted to do so constitutionally.

This judgement was challenged by way of review petitions.

The first review petition was filed on November 1 by Udit Sood, one of the petitioners in the original case.

The Delhi High court has rejected a plea that challenged the appointment of Nidhi Chibber as Chairperson of the Central Board of Secondary Education (CBSE).

The plea filed by the Independent School Federation of India was dismissed by the single-judge Bench of Justice Chandra Dhari Singh after noting that Chibber fulfilled the criteria for the post.

The High Court observed that in the current case, it cannot issue a writ of Quo Warranto, as no prima facie case was made out against the petitioner.

The Court mentioned that Chibber (respondent no. 3) had the qualification to be appointed as the Chairperson of the Central Board of Secondary Education.

The court said that in view of the foregoing discussion, it was of the view that the instant writ petition filed by the petitioner was nothing, but a gross misuse of process of law.

The petitioner approached the High Court arguing that Chibber was appointed to the post as part of a bureaucratic re-shuffle, and was not eligible to occupy the post. It was contended that she did not have the minimum experience of three years in the field of education.

The Counsel for Chibber contended that argued that she has experience and qualifications as per the vacancy circular issued.

The Court considered the case and held that no case was made out to remove the Chairperson from her post.

The Independent School Federation of India was represented by Advocate Ravi Prakash Gupta, whereas the Central government was represented by Central Government Standing Counsel Manisha Agrawal Narain with Advocate Shivangi Gumber.

CBSE was represented through its Standing Counsel MA Niyazi as well as Advocates Anamika Ghai Niyazi, Kirti Bhardwaj, Nehmat Sethi and Arquam Ali.

A Lucknow-based lawyer has filed a petition in the Supreme Court against the restoration of Lok Sabha membership of Congress leader Rahul Gandhi, who was convicted in a criminal defamation case over his “all thieves have Modi surname” remark by a Gujarat court.

Filed by Advocate Ashok Pandey, the petition sought quashing of Gandhi’s Lok Sabha membership on the grounds that once Gandhi lost his Lok Sabha membership, after being convicted in a criminal defamation case and was awarded two-years imprisonment, the Speaker of the Lok Sabha was not right in restoring back his lost membership.

Once a member of Parliament or a state legislature lost his office by operation of law in Article 102, 191 of the Constitution read with Section 8 (3) of the Representation of People Act 1951, he would remain disqualified till he was acquitted of all the charges levelled against him by some higher court, it added.

Pandey said in the petition that the order of the Lok Sabha Speaker was merely a formal order through which the vacancy of the office of membership of Rahul Gandhi in the Lok Sabha was notified. 

Rahul Gandhi was disqualified from being chosen as or from being a Member of Parliament and state legislature till his conviction was not set aside by the court of appeal and so to restore his membership and to permit him to continue to work as a Member of Parliament was in clear violation of Article 102 read with Section 8 (3) of the R.P. Act, 1951, he added.

The petition further prayed for a writ of mandamus to the Election Commission of India to notify the vacancy to the seats being held by a Legislator in case of conviction and sentence and to hold the election to choose a new Legislator from that constituency.

It argued that Section 389 of CrPC only permitted the court hearing an appeal against conviction and sentence to suspend the sentence and release the appellant on bail, however, it did not permit the court of appeal to suspend the conviction.

On August 7, the Lok Sabha Secretariat had restored the membership of Rahul Gandhi, which was suspended after his conviction in a criminal defamation case.

The Supreme Court had stayed the conviction on August 4 on the grounds that the trial judge did not give any other reason for awarding maximum sentence under the Representation of Peoples (RP) Act except the admonition by the Supreme Court. 

The Bench of Justice B.R. Gavai, Justice P.S. Narasimha and Justice Sanjay Kumar observed that when the offence was non-cognisable, bailable and compoundable, the trial judge was expected to give reasons for imposing maximum sentence.

Had the sentence been a day lesser, the provisions under the RP Act would not have been attracted, noted the top court of the country. It said though the appellate and the High Court spent voluminous pages rejecting stay on conviction, these aspects were not considered in their orders.

The Apex Court, while noting that the ‘utterances’ of Rahul Gandhi were not in good taste, observed that a person in public life was expected to exercise caution while making public speeches. The Bench further suggested Gandhi to be ‘more careful’ in future.

On July 7, the Single-Judge Bench of Justice Hemant Prachchhak of Gujarat High Court had rejected the review petition filed by Gandhi in the criminal defamation case. The High Court further refused to stay the conviction and two-year jail term awarded to the Congress leader.

It observed that staying the conviction was not a rule and the same must only be exercised in rare cases. The Bench noted that at least 10 criminal cases were pending against Gandhi.

On March 23, a local court in Surat district of Gujarat had convicted Congress MP Rahul Gandhi in a defamation case for his alleged remarks against Prime Minister Narendra Modi in April 2019.

The Court of Chief Judicial Magistrate H.H. Varma sentenced Gandhi to two years in jail and also imposed a fine of Rs 15,000 after finding him guilty under Sections 499 (Defamation) and 500 (punishment for Defamation) IPC.

Gandhi’s conviction under Sections 499 and 500 of the Indian Penal Code (IPC), both of which warranted a maximum sentence of two years, led to his disqualification from the Parliament, as per a Supreme Court order of 2013.

The Supreme Court on Monday dismissed the petitions seeking directions to complete the recruitment processes initiated for the Indian Army and the Air Force, which were discontinued after the Agnipath scheme was announced in June 2022.

The pleas challenged the Delhi High Court verdict, which upheld the Agnipath scheme. The recruitment scheme made Indians between the age of 17-and-a-half and 23 eligible to apply for armed forces to be inducted for a four-year tenure.

The Bench of Chief Justice of Justice (CJI) D.Y. Chandrachud, Justice P.S. Narasimha and Justice J.B. Pardiwala disposed of the petitions on the grounds that the candidates had no vested right to seek the completion of recruitment process. 

It observed that the decision not to proceed with the previous recruitment processes could not be termed as arbitrary, noting that promissory estoppel would not apply when larger public interest was involved.

The Apex Court noted that since it was a matter of public employment and not a contract, the Apex Court could not interfere. 

Appearing for the petitioners, Advocate Arunava Mukherjee clarified at the outset that he was not challenging the scheme and that the matter was confined to the completion of previously notified recruitment processes to the Army and the Air Force.

The lawyer contended that the Union Government postponed the exams many times citing the Covid-19 pandemic and suddenly in June, the Agnipath scheme was announced. 

Advocate Mukherjee contended that the exams were held for the Air Force but the results were not published, added the Counsel. He highlighted that the exams were never cancelled and only postponed.

The CJI orally observed during the hearing that the process had begun earlier. Both physical and medical tests were held, but entrance tests were not conducted. When the new scheme came, they decided not to go ahead with this at all, however, there was no vested right ultimately.

The lawyer requested that the Agnipath scheme would not be affected, even if the petitioners were inducted.

Representing the Centre, Additional Solicitor General Aishwarya Bhati apprised the Apex Court that the issues had already been dealt with in detail by the Delhi High Court. 

She contended that during the Covid-19 pandemic, there were all kinds of issues – these were extraordinary times the institutions were dealing with. It was not a process of pick and choose. The Union of India had to fill the vacancies in the interest of Defence and national interest.

She added that the exigencies required the Central government to modulate the recruitments in this manner.

Appearing in another matter, Advocate Prashant Bhushan submitted that the petitioners were placed in the provisional list for Air Force after undergoing several test processes. 

For one year, they kept saying appointment letters will be issued but the same were postponed. The candidates went through the entire process and were still not recruited. Imagine the plight of these people, who have been waiting for the past three years, he added. 

As per Bhushan, the doctrine of ‘promissory estoppel’ would get attracted in these circumstances.

The CJI then noted that there was no vested right here and that it was not arbitrary in the circumstances. 

The Supreme Court on Friday laid out the reasons for rejecting the two petitions filed by Advocates from the Madras High Court against the appointment of Justice Victoria Gowri as an Additional Judge of the Madras High Court.

The Single-Judge Bench of Justice Sanjiv Khanna ruled that it was passing a short order, following the constitutional bench judgment and after observing that it cannot go into the question of suitability.

Earlier on February 7, the Bench of Justice Sanjiv Khanna and Justice B.R. Gavai had ruled that the writ petition pertained to the suitability of the Advocate, rather than her eligibility, which was a subjective assessment and hence, the Court was not inclined to entertain the petition. 

Stating that there was a difference between eligibility and suitability, the Apex Court had said it could not go into the question of ‘suitability’ at this stage, when the petitioner had cited a precedent of the Supreme Court stalling the appointment of a judge on the ground of ‘eligibility’.  

The Court further said that it cannot be presumed that the Supreme Court Collegium was not aware of Gowri’s political backgrounds or her controversial statements.

As per the Apex Court, Gowri was only being appointed as an Additional Judge and there were instances where persons had not been confirmed, implying that the question of suitability could be considered by the Collegium later at the stage of confirmation.

As the hearing was in progress, the swearing-in ceremony took place at the Madras High Court. Acting Chief Justice of the Madras High Court, Justice T. Raja, administered the oath of office and secrecy to Victoria Gowri and four other Advocates. 

Earlier on February 6, an urgent listing of the matter was sought by Senior Advocate Raju Ramachandran before the Bench led by Chief Justice of India (CJI) D.Y. Chandrachud.

A writ petition was filed in the Supreme Court by Advocates Anna Mathews, Sudha Ramalingam and D. Nagasila, seeking to set aside the recommendation concerning Gowri on account of her prejudices against the minorities, alleging that she bore ill-will against certain sections of people based on their religion.

They submitted that such a person was not able to render fair and impartial justice, which was the basic structure of the Constitution.

The writ petition sought to set aside the recommendation concerning Gowri as unconstitutional for lack of effective consultation within the meaning of Article 217 of the Constitution.

Some members of the Madras High Court Bar had submitted a representation to the CJI in January this year, seeking cancellation of Gowri’s proposed appointment on the ground that she had indulged in hate speech against Christians and Muslims and even had open affiliation with the BJP.

The Supreme Court refused to entertain a petition on Wednesday, which had challenged the appointment of Justice D.Y. Chandrachud as the next Chief Justice of India (CJI).

After noting that the petition was completely misconceived, the Bench of CJI U.U. Lalit, Justice S. Ravindra Bhat and Justice Bela M. Trivedi disposed of the same. 
The matter was mentioned before the CJI this morning by Advocate Mursalin Asijit Shaikh, seeking urgent hearing in the case.
The Apex Court agreed to hear the petition, which was not part of today’s Causelist, at 12:45 pm, after considering the nature of relief sought for in the same.
The petitioner sought contempt of court and other criminal actions against Justice Chandrachud, alleging that he had acted in ‘wilful disregard’ and ‘deliberate defiance’ of binding precedents of larger benches of the Supreme Court and denied justice to deserving litigants on 12 occasions.
The plea said Justice Chandrachud took up a case related to his son’s client and passed an ex-parte order without issuing notice to the respondents, including the state government.

Talking of another case, the petitioner contended that it had already been highlighted by one Rashid Khan Pathan, who had forwarded a complaint to both the CJI and the President on the same.

The complaint, which was made available on social media and WhatsApp groups by the complainant, received strong reaction from the Bar Council of India and several other Bar Associations, which issued public statements, condemning the allegations and discarding them as baseless.

The plea also prayed for a direction to the Central government to refrain from appointing him as the CJI.

(Case title: Mursalin Asijit Shaikh vs Union of India)

New Delhi (ILNS): The Supreme Court today put off till after the Dusshera holidays the hearing of an appeal filed against the verdict of the Jharkhand High Court, which had dismissed a plea filed by BJP leader Pradeep Sonthalia challenging the election of Congress member Dhiraj Sahu as Rajya Sabha MP from the state.

While Senior Advocate Mukul Rohatgi appeared on behalf of the petitioner, Senior Advocate Dr Abhisek Manu Singhvi represented the respondent in the case.

The short hearing was marred by technical glitches, and with the two senior advocates arguing Chief Justice SA Bobde realized it was not the best situation to carry on arguments.

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He dismissed Rohatgi’s request for a short date and said that the

“matter will not disappear. We will hear it in the week after the first miscellaneous week post vacations.”

-ILNS