Bhavdeep Kang
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.
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.
Women's dignity
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.
Britain, China clash over new UK visa for Hong Kongers
Rup Narayan Das
A fresh row has cropped up between Great Britain and China about the offer of British National overseas passports to Hong Kong residents, a move which is vehemently protested by China.
The online portal inviting applications from eligible Hong Kong residents was opened on January 31.
As of now, as many as 5,000 applications have been received so far, out of which half of them are already residing in the United Kingdom.
Hong Kong was transferred to Chinese sovereignty on July 1, 1997 under a novel system of ‘one country, two systems', which envisaged that the extant political and economic system in Hong Kong will remain unchanged for fifty years after the reversion of Hong Kong to the Communist regime.
The handover of Hong Kong to China was not just the transfer of territory, but also handing over a populace used and acclimatised to the ethos and milieu of liberal democracy.
The annexure appended to the Sino-British Joint Declaration of 1984 stipulates that the ‘Central People's Government of China shall authorise the Hong Kong Government to issue passports to all Chinese nationals who hold permanent identity cards of the Hong Kong Special Administrative Region (HKSR) and travel documents to all other persons lawfully residing in Hong Kong.'
It further mentions that unless restrained by law, holders of valid travel documents is free to leave Hong Kong without special authorisation.
The memoranda from the British side which was exchanged at the time of signing of the Joint Declaration provides that all persons who on June 30, 1997 are, by virtue of a connection with Hong Kong, British Dependent Territories Citizens (BTDC) under the law in force in the United Kingdom would cease to be BDTCs with effect from July 1, 1997, but will be eligible to retain an appropriate status which, without conferring the right of abode in the United Kingdom, will entitled them to continue to use passports issued by the United Kingdom.
The memorandum from the Chinese side permitted Chinese nationals in Hong Kong who previously held the BDTC to use travel documents issued by the United Kingdom for the purpose of travelling to other states and regions
The Basic Law which is regarded as the mini-constitution of Hong Kong lays down that its residents have the freedom to emigrate to other countries and regions and have the freedom to travel and to enter or leave Hong Kong.
It also mentions that unless restrained by law, holders of the travel documents shall be free to leave the HKSR without special authorization.
China and the United Kingdom agreed to implement the Joint Declaration and the Annexes appended to it.
The Joint Declaration, however, per se, does not allude to the memoranda exchanged between both sides.
Be that as it may, migration and cross migration and free movement of the people has been the dynamics of the cosmopolitan nature of Hong Kong from the very beginning.
When the dialogue started between the United Kingdom and China in the mid-1980s with regard to the hand over of the colony to the latter, Hong Kong started to witness an exodus of people and capital due to uncertainty of the future of the territory.
Despite the promise of the Chinese government and the constitutional measures designed to maintain the existing social structure and lifestyle under the formula of “one country, two systems' for fifty years beyond 1997, the scheduled return of Hong Kong to China from 1st July 1997 prompted an increasing number of people to obtain a foreign passport or right of abode in a foreign country.
From 1980 to 1986, people emigrated at around 20,000 a year. The most popular destination countries were Canada, the USA and Australia.
Even second-rung countries like Singapore and South Africa joined in to cash in on the capital and brain drain from the territory.
The Tiananmen Squire of June 4, 1989, pushed the panic bottom and triggered erosion of confidence and exodus of people and capital from Hong Kong.
It was against this backdrop that the United Kingdom approved a nationality package offering full British citizenship to 50,000 BDTC passport holders of Hong Kong in April 1990.
The offer was severely criticised by China. A new twist to the ongoing spat between China and the United Kingdom was given when Prime Minister Boris Johnson bemoaned that the imposition of the national security law by China on Hong Kong last year would curtail its freedom and dramatically erode its autonomy.
In an article which he wrote for The Times, he wrote, ‘If China proceeds, this would be in direct conflict with its obligation under the Joint Declaration, a legally binding treaty registered with the United Nations. Britain would then have no choice but to uphold our profound ties of history and friendship with the people of Hong Kong.'
Jonhson further wrote that about 350,000 of the territory's people hold British National Overseas passports and another 2.5 million would be eligible to apply for them.
At present these passports allow visa-free access to the United Kingdom for up to six months.
If China imposes its national security law, the British government will change our immigration rules and allow any holder of these passports from Hong Kong to come to the United Kingdom for a renewable period of 12 months and be given further immigration rights, including the right to work, which would place them on a route to citizenship.
China has threatened not to recognise UK passports. The online applications process for the refurbished British National Overseas (BNO) passport started on February 14.
While the Chinese nationals who are permanent residents of Hong Kong have no problem with their travel plans, the response to BNO passports is yet to be observed.
Hong Kong which has been a resilient cosmopolitan city has certainly lost its elan to a great extent.
Rup Narayan Das, PhD, is a Delhi-based China scholar and currently a senior fellow of the Indian Council of Social Science Research at the Indian Institute of Public Administration, New Delhi.
His book The Hong Kong Conundrum: The Pangs of Transition is being published by Knowledge World.
