Author: Ankita Karn (REVA University, Bangalore)
Uttarakhand High Court held that the grandchildren from daughter of a freedom fighter cannot be denied from the benefits of welfare schemes, which is given to the family of freedom fighters under the various schemes floated by Government of India and State Government as well under the act called as “ The Uttar Pradesh Public Services (Reservation for Physically Handicapped Dependents of Freedom Fighter and Ex-Servicemen) Act, 1993”
The petition was filed by five petitioner claiming the benefits of welfare scheme provided to the family of freedom fighters. The petitioners are Ruchika Tomar, Km Kriti Bishnoi Tomar, Pankaj Singh and others, Aditya Tyagi and Balwant Singh. The petitioner preferred the writ petition against the action of not providing the welfare schemes which is given to the family of freedom fighters under the various schemes floated by Government of India and State Government as well under the act called as “ The Uttar Pradesh Public Services (Reservation for Physically Handicapped Dependents of Freedom Fighter and Ex-Servicemen) Act, 1993”.
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The petitioner had challenged the action of State Government in denying the benefits on the basis of gender. Advocate Tapan Singh, counsel for petitioner argued that the daughter’s daughter is also a member of the family of deceased freedom fighter irrespective of the fact that she is married to another person, which does not mean that she will be deprived from getting the benefit under the freedom fighter scheme on the ground of gender or on the basis of the fact that she is married. Singh also argued that when the grandchildren from son means son’s son or daughter are entitled to get the benefit then the grandchildren from daughter means daughter’s son or daughter would also be entitled for the benefit under the scheme.
Singh further stated that in Isha Tyagi v State of U.P. where the question of discrimination was being created for the grant of compassionate appointment in reation to the daughter/son which is completely violative under the Article 14 and Article 15 of Indian Constitution. Further to this Allahabad High Court division bench held, that married daughter would fall within the definition of the family and she is also entitled for the compassionate appointment.
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In National Legal Services Authority v. Union of India Supreme Court held that any discrimination on the basis of gender identity would be contrary to Articles 14, 15 and 21 of the Constitution.
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.
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It was concluded by the Justice Sharad Kumar Sharma, in Welfare Scheme for Family Of Freedom Fighters that the daughter, granddaughter or grandson born to a daughter of a freedom fighter cannot be discriminated against on the basis of gender. The court further held that the government should consider this under the various schemes which is provided to the dependents of freedom fighter and there should not be any other legal impediment.
