(Per Dr. D.Y. Chandrachud, C.J.) A brochure which has been issued by the State for entrance to medical courses in the State of Uttar Pradesh, described as CPMT 2014, prescribes the time lines and conditions of eligibility. The brochure envisages that candidates have to submit online applications. The petitioner claims to be a grand-daughter of a freedom fighter of Tehsil-Deoband, District Saharanpur, by the name of Buchha alias Dileep Singh Tyagi. The petitioner has annexed a copy of a certificate dated 26 September 1988 issued to her mother stating that she is the daughter of the above mentioned freedom fighter. The petitioner applied for admission in pursuance of the information brochure. Under the brochure, a reservation of 2% has been provided for descendants of freedom fighters on a horizontal basis. The condition stipulates that the reservation would enure to the benefit of actual descendants of freedom fighters which is defined to include sons, unmarried daughters and son's sons. The condition in the brochure specifies that the son of a freedom fighter is not required to be financially dependant.
The petitioner applied online for admission. The online code for the general category is ten and for the dependants of freedom fighters, it is fifteen. The petitioner submitted representations to the second, third and the fourth respondents on 14 July 2014 and 19 July 2014 seeking extension of the benefit of reservation in the quota set apart for dependants of freedom fighters. By an e-mail in response, the petitioner was directed to present her case at counselling. The grievance of the petitioner is that she has been treated as a general category candidate and assigned an overall rank of 20798 whereas her rank in the female category is 9469.
The petitioner is aggrieved by the discrimination which has been made in the quota of 2% set apart for descendants of freedom fighters; in that, the children of a daughter of a freedom fighter are excluded. This condition is postulated on the basis that only an unmarried daughter is entitled to the benefit of horizontal reservation and hence neither a married daughter nor her children would be entitled to receive the same benefit. This, it has been submitted, is contrary to Articles 14 and 15 of the Constitution.
By an order dated 12 August 2014, the State was directed to file a counter affidavit explaining in particular the basis for the decision to exclude the children of the daughter of a freedom fighter from the benefit of horizontal reservation. The learned Standing Counsel appearing for the respondents informs the Court that despite a communication dated 13 August 2014, no instructions have been made available.
The State Government has taken a policy decision to grant a horizontal reservation of 2% to the descendants of freedom fighters. While doing so, the State Government has qualified the condition of eligibility by stipulating that a son or a daughter would be entitled to the benefit of the reservation. However, it has been stated in the relevant condition that the law department had opined that this benefit can be extended only to an unmarried daughter of a freedom fighter. Consequently, whereas the son's son would be eligible to apply for admission, the children of a daughter stand excluded. Exclusion of a grand daughter is plainly an act of hostile discrimination which is violative of the fundamental right guaranteed under Articles 14 and 15 of the Constitution. The condition which has been imposed by the State does not prescribe financial dependence. In fact, the clarification is to the effect that it is not necessary that the son of a freedom fighter should be financially dependant upon him. The basis and object of the horizontal reservation of 2% is to recognise the seminal role in the freedom struggle played by freedom fighters. It is in recognition of their contribution to the freedom struggle that a benefit of reservation is extended to descendants of freedom fighters. This being the rationale, there is no reason or justification to exclude a married daughter and consequently the children of a married daughter. Once a decision has been taken to extend the benefit of horizontal reservation to descendants of freedom fighters, whether the descendant is a son or a daughter should make no difference whatsoever. In fact, any discrimination against a daughter would be plainly a discrimination on grounds of gender. The guarantee under Article 15 of the Constitution is broad enough to encompass gender discrimination and any discrimination on grounds of gender fundamentally disregards the right to equality, which the Constitution guarantees.
In National Legal Services Authority Vs Union of India1, the Supreme Court held that any discrimination on the basis of gender identity would be contrary to Articles 14, 15 and 21 of the Constitution:
"82. Article 14 has used the expression "person" and 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. ...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. ...
83. 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, ..............."
It would be anachronistic to discriminate against married daughters by confining the benefit of the horizontal reservation in this case only to sons (and their sons) and to unmarried daughters. If the marital status of a son does not make any difference in law to his entitlement or to his eligibility as a descendant, equally in our view, the marital status of a daughter should in terms of constitutional values make no difference. The notion that a married daughter ceases to be a part of the family of her parents upon her marriage must undergo a rethink in contemporary times. The law cannot make an assumption that married sons alone continue to be members of the family of their parents, and that a married daughter ceases to be a member of the family of her parents. Such an assumption is constitutionally impermissible because it is an invidious basis to discriminate against married daughters and their children. A benefit which this social welfare measure grants to a son of a freedom fighter, irrespective of marital status, cannot be denied to a married daughter of a freedom fighter. The progeny of the children of a freedom fighter cannot be be excluded on the grounds of gender. Grandchildren, irrespective of gender, must be treated on an equal footing. Whether grandchildren should at all be entitled to the benefit of a welfare scheme is a matter of policy for the State to decide. However, what is clearly not open to the State is to confine the benefit to grandchildren of a particular category, based on the gender of the parent or the gender of the child. Marriage does not have and should not have a proximate nexus with identity. The identity of a woman as a woman continues to subsist even after and notwithstanding her marital relationship. The time has, therefore, come for the Court to affirmatively emphasise that it is not open to the State, if it has to act in conformity with the fundamental principle of equality which is embodied in Articles 14 and 15 of the Constitution, to discriminate against married daughters by depriving them of the benefit of a horizontal reservation, which is made available to a son irrespective of his marital status. Consequently, in the present case, we are of the view that the opinion of the law department of the State, which forms the basis of the condition which is in question, is just not sustainable and is fundamentally contrary to basic constitutional norms.
In the circumstances, we order and direct that the benefit of the horizontal reservation of 2% for descendants of freedom fighters shall extend both to descendants of a freedom fighter tracing their lineage through a son or through a daughter irrespective of the marital status of the daughter. Neither a married daughter nor her children would be disqualified from receiving the benefit of the reservation which is otherwise available to them in their capacity as descendants of a freedom fighter. Whether, in a given case including the present, an applicant is truly a descendant of a freedom fighter is undoubtedly for the authority to verify.
In the present case, the learned counsel appearing for the petitioner has stated that the process of counselling is still going on. In the event that the counselling process is still underway, we direct that the claim of the petitioner shall, subject to due verification as regards its authenticity, be considered under the category of the horizontal reservation of 2% provided for descendants of a freedom fighter.
The writ petition is, accordingly, allowed in the aforesaid terms. There shall be no order as to costs.
Date: 26.08.2014 SK/AHA (Dr. D.Y. Chandrachud, C.J.) (Dilip Gupta, J.)