Case BriefsHigh Courts

Patna High Court: The Division Bench comprising of Sanjay Karol, CJ., and S. Kumar, J., opined that it is the settled position of law that the right to health, including access to basic medical infrastructure, is a facet of Article 21 of the Constitution of India, which the State is duty-bound to provide. The Bench stated,

Failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment results in a violation of his right to life guaranteed under Article 21.

Relying on the decision of Constitution Bench of the Supreme Court in Common Cause (A Registered Society) v. Union of India, (2018) 5 SCC 1, the Bench reiterated that when it comes to interpretation of fundamental rights, the Court has to adopt a liberal, dynamic, extensive and interpretative approach and needless to add the right to life has to be with dignity is a settled principles of law. Reliance was also placed by the Court on the decision of Supreme Court in Union of India v. Mool Chand Kharaiti Ram Trust, (2018) 8 SCC 321,wherein it had been reiterated that the constitutional duty to develop “humanism” as envisaged under Article 51-A(h) applicable to the medical profession.

The counsel for one of the petitioners, Mr. Dinu Kumar informed the Court that the Medical Institutions, specified to deal with Covid-19, are lacking in infrastructure. Illustratively, he mentions that C.T. Scan Machines are either not installed or not fully functional/operational, be it for whatever reason.

Since the onset of the first wave of current Pandemic, the Court had been monitoring the position within the State. The Bench opined that the biggest challenge before the Government is to change the mindset of the people of Bihar and break the myth amongst the local populace that- Bihar Corona ko Khaa Gaya Hai. The various directions issued, policies framed and programmes propagated by the Central Government and the State Government under the provisions of Disaster Management Act, 2005 and Epidemic Diseases Act, 1897, needs to be highlighted, popularised and people need to be sensitised, both in the urban and rural areas by all modes of communications, including electronic and print media. The Bench suggested,

On a personal level Persons engaged in pursuing social beneficially schemes, can be asked to sensitize the general public in adhering the advisories issued, at least of wearing masks; maintaining social distancing; avoiding congregation at public places; and taking all precautions in dealing with the problems arising out of current Pandemic Covid-19.

Noticing that in Bihar, recovery rate improved up to 89.72%, above than the national recovery rate of 77.77 % and the death rate in Bihar was the lowest in the country. The Bench complimented the officials, who have wholeheartedly and dedicatedly devoted themselves to this battle against the corona virus. The Bench opined that as representatives of institutions and pillars of a democracy, it is the collectively responsibility of the Court to ensure that the people get help and are provided with the healthcare they need, especially in these times of great crisis. The Bench added,

None should lose life only on account of lack of adequate medical care. We would also be amiss if, right at the outset, we do not acknowledge the excellent work carried out by our doctors and other medical staff whom we had in previous litigation termed as our Guardian Angles.

In the attending circumstances, when the State is in a state of a medical emergency, for the State itself has imposed lockdown from 06-05-2021, the Bench opined that non-reporting of deaths by the functionaries under the Municipal Act and the Panchayat Act should also entail action for their removal on the ground of non-performance/discharge of their duties. Hence,

The public representatives must engage themselves at the grass-root level, for they are pretty familiar with the geography, demography and topography of their respective jurisdiction. to ensure that all deaths taking place within their respective jurisdictions, are immediately reported and certainly not later than 24 hours.

The Bench emphasized that in case of violation to report the deaths within 24 hrs, the Court would make sure to remove the official responsible for negligence from the service. With regard to the issue of hoarding/black-marketing of the medical equipment, including oxygen cylinder, the Bench directed the state to take necessary actions against the same.

Directions by the Court

In the above backdrop, the Bench issued following directions:

  1. The government hospitals are duty-bound to extend medical assistance for preserving human life. Failure on the part of even private hospitals to provide timely medical treatment to a person in need of such treatment results in a violation of his right to life guaranteed under Article 21.
  2. The public representatives as also the functionaries of the State under the Registration Act, Municipal Act and the Panchayat Act shall take all steps ensuring implementation of the Government policies, including immediate registration of deaths, more so in the rural areas of Bihar.
  3. All deaths must be reported within 24 hours. A true picture is essential for taking effective steps in defeating this pandemic Covid-19.
  4. The State need to shift the focus to the rural areas so as to ensure that none is deprived of the medical health infrastructure in connection with pandemic Covid-19.
  5. Government of India shall favourably consider the request seeking enhancement of the quota of oxygen cylinders and oxygen (LMO) within four days.
  6. Municipal authorities are directed to take steps for proper collection, treatment and disposal of waste generated from COVID patients in home isolation.
  7. The process of procuring C.T. Scan equipment is directed to be expedited.
  8. Government of Bihar shall file a fresh affidavit, furnishing complete information in a format (tabular chart) prepared by all the learned counsel in terms of our direction within next four working days.
  9. Fresh data be furnished to this Court, with respect to RTPCR, positivity rate and death etc., making clear the geographical locations, Urban and Rural designations and also, the number of (a) Covid Care Centres (CCC); (b) Dedicated Covid Health Centres (DCHC); (c) Dedicated Health Centre (DHC) or for that matter the private hospitals in each one of the districts.

[Shivani Kaushik v. Union of India, Civil Writ Jurisdiction Case No. 353 of 2021, order dated 13-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Advocates before the Court:

For the Petitioner/s: Shivani Kaushik (In Person)

For the UOI: Dr K.N. Singh (ASG)

For the State: Anjani Kumar, AAG-4

For the Respondent 5: Mrs Binita Singh

For Respondent 6: Shivender Kishore,

For PMC: Prasoon Sinha

For DMCH : Mr. Bindhyachal Rai, Advocate
For GMC : Mr. Rabindra Kr. Priyadarshi ,
For the Intervener : Mr. Rajiv Kumar Singh, Advocate

Case BriefsHigh Courts

Jammu and Kashmir High Court: Sindhu Sharma J., while dismissing the present petition, held,

“In a democratic process, the members of the Panchayat, who were elected members, have been provided with the provisions of issuing a no-confidence motion against the Chairman on the ground of neglect on duty and gross misconduct and otherwise, if the action of the petitioner falls in either of two grounds, they have a right to consider the same.”

The petitioner has challenged the notice dated 10-07-2020 issued by the Secretary of Block Development Council, Larnoo for convening a special meeting for Impeachment and No-Confidence Motion. The petitioner was elected as a Sarpanch from the Constituency of Panchayat Halqa Kharpora, Block Larnoo, District Anantnag and subsequently, was elected as the Chairman of the Block Development Council on 24-10-2019.

With respect to the impugned communication, Court observed,

“It is submitted that the Chairman of the Block Development Council shall be deemed to have vacated his office if a motion of no confidence is moved against him by any of the members on any of the following grounds i.e., gross misconduct; neglect of duty & disqualification prescribed under Section 6. This has been clearly conveyed in the motion/notice about the intention of the members of BDC, Larnoo. As such, the Secretary had rightly issued the impugned communication for conducting the special session.”

With respect to adherence of procedural regularities, it was said,

“The procedure for removal of Chairman is provided under Rule 107 of the Panchayati Raj Rules, 1996. It provides that the procedure for removal of the Chairman shall be same as that of Sarpanches. However, District Panchayat Officer shall preside over the meeting to be convened for such removal and Block Development Officer shall function as Secretary under the provisions of this Rule… out of 15 Sarpanches holding the posts, 12 had signed the motion/notice of non-confidence.” Court further cited Rule 81 which prescribes that the intention to move a motion for removal under section 7 shall be necessary, which thereby, should be signed by at least 1/3rd of the total members of the Panchayat and delivered in person by at least two Sarpanches, signing the notice to the Secretary of the Panchayat. The Secretary shall thereafter take steps to convene a special meeting not earlier than ten days and not later than twenty days from the date of receipt of the motion. Conclusively the Court said, “… the Block Development Officer in his position as a Secretary had rightly issued impugned communication calling for a special meeting of impeachment and No Confidence Motion, the same was to be presided by the District Panchayat Officer, therefore, the same was neither required to be placed before the petitioner as his capacity as Chairman nor he was to preside over the same.”[Mumtaz Ali v. UT of J&K, 2020 SCC OnLine J&K 728, decided on 02-12-2020]


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Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Abhay S. Oka CJ. and Ashok S. Kinagi J., while partly allowing the present petition, discussed the powers and obligations of the State Election Commission and the limited intervention of the State Government in exercise of such powers.

Background

By this petition under Article 226 of the Constitution of India, the petitioners have sought a writ of mandamus for enjoining the second respondent; the State Election Commission (for short ‘SEC’) to conduct elections to 6015  Grama Panchayats in the State of Karnataka before the expiry of five years term, as provided in clause (3) (a) of Article 243E of the Constitution of India. Apart from seeking the Writ of Mandamus, the challenge is also made against the order passed by the SEC on 28-05-2020, postponing the elections to all the Gram Panchayats in the State, owing to an ‘extraordinary situation’ created by the spread of COVID – 19. In its statement of objections filed on 30-06-2020, the SEC relied on the case of Kishansing Tomar v. Municipal Corporation of Ahmedabad, (2006) 8 SCC 352, where it was held by the Supreme Court that certain man-made calamities or natural calamities, which could prevent the authorities from holding elections can be treated as ‘exceptional circumstances’. It was then pleaded that COVID – 19 has created such extraordinary circumstances, that calls for postponement of the elections. Additional objections were filed to reiterate that all steps taken were in compliance with the statutory powers of the SEC and that there is no intention of delaying the elections for an undefined period. The State Government, echoing the same stand in its affidavit said, that there will be approximately 2,95,64,498 voters in the Grama Panchayat elections and the number of candidates may  be around 2,50,000. There is a likelihood of candidates and voters not strictly following the social distancing norms and failing to comply with the other standards released by the Ministry of Health, and therefore, it shall be in the interest of the public health and governance, to postpone the conduct of elections for the time being.

 Contentions

Shri Ravivarma Kumar, Senior Counsel appearing for the petitioners has referred to 73rd Constitutional Amendment. He pointed out that the entire object of the amendment was to ensure that the State  Government should not interfere with the local self-government and Panchayats. He further invited the Court’s attention to Article 243K of the  Constitution of India which lays down that the SEC is vested with the powers of superintendence, direction, control and preparation of electoral rolls as well as the conduct of elections of the Panchayats.

K. N. Phanindra, Senior  Counsel appearing for the SEC submitted that fixing of the schedule of elections and issuance of the calendar of events is within the exclusive domain of the SEC and it is an independent power of the SEC. He submitted that when it comes to elections to Panchayats and Municipal bodies, the SEC enjoins the same status as that of the Election Commission of India. He further pointed  out the steps taken by the SEC in this regard and submitted that tentative schedule of election has already been produced in a sealed cover along with the memo. He pointed out that in the meeting held between the SEC and the executive authorities, the majority of the Deputy Commissioners were of the view that elections should be held during November or  December, 2020.

Shri Prabhuling K. Navadgi, Advocate General for the State relied on the decision of the Supreme Court in K.S. Puttaswamy (Privacy-9J) v. Union of India, (2017) 10 SCC 1, and Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, arguing the need to achieve a balance between compelling State Interest and public health and the concept of Transformative Constitutionalism.

Observations

Drawing difference between the powers of SEC and the State Government with respect to conduct of elections, the Court observed, The SEC is an independent body created under the Constitution and the SEC must function independently of the State Government in exercise of its powers of superintendence, direction and control of Panchayat elections. The State Government has no control over the SEC in these matters. In fact, as held in the case of Kishansingh Tomar, the State is duty bound to abide by the directions of the SEC in the same manner in which it is under a mandate to follow the directions issued by the Election Commission of India during the election of Parliament and State Legislature.  In  fact, the  SEC while conducting elections of panchayats or Municipalities enjoys the same status which is enjoyed by the Election Commission of India for conducting elections for Parliament and State Legislature.”

With respect to the discretionary power of the SEC to decide of ‘exceptional circumstances’ to postpone the elections, the Court remarked, “(…)it is for the SEC to take a call and take a decision at its discretion on the existence of the exceptional circumstances. But SEC cannot altogether ignore the constitutional mandate. To meet  a  particular  contingency, the SEC can hold elections in a phase-wise manner.”

Dismissing the State’s argument of not being able to provide machinery for the proper conduct of elections, the court said, The stand of the Government cannot be accepted inasmuch as, when it comes to providing necessary staff for the conduct of elections, the State Government does not come into picture. It is for the Hon’ble Governor to provide requisite staff to the SEC.”

 Decision                 

Allowing writ of Mandamus, the Court held, “It is only in very exceptional circumstances that the SEC can conduct elections after expiry of the term of Panchayat. Whether such exceptional circumstances exist or not is a matter within the exclusive domain of the SEC. The State Government plays no role in deciding whether such exceptional circumstances are in existence. For deciding whether such circumstances are in existence, it is always open for the SEC to  consult the Government on factual aspects; We, therefore, direct the State Election Commission to finalize the schedule of elections of  Grama  Panchayats.”[KC Kondaiah v. State of Karnataka, WP No. 7987 of 2020, decided on 13-11-2020]


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Case BriefsSupreme Court

Supreme Court: In the case where it was contended that once a notice is given under Section 15(2) of Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961, another notice of no confidence shall not be received until after expiration of one year, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr, DY Chandrachud, JJ held that the prohibition under Section 15(12) would only come into play when there is meeting and the motion is “not carried out” as per the provisions of Section 15 or meeting could not be held for want of quorum. It said:

“Mere receipt of a notice by the Collector will not allow the prohibition under Section 15(12) to come into play. That is not the purpose of the provision.”

Explaining the legislative intend behind the Act, the Court said that the legislature being empowered by the Constitution has legislated to provide for the establishment of Kshettra Panchayats and Zila Panchayats in the Districts of Uttar Pradesh to undertake certain Governmental functions at Kshettra and District levels respectively in furtherance of the principles of democratic decentralisation of Governmental functions. Stating that the Act intends to empower the Panchayats, the Court explained:

“Section 9 clearly provides that the term of the office of Pramukh is for five years from the date appointed for its first meeting. That brings stability to the administration of the Gram Panchayat. Simultaneously, it also provides that the democracy at the rural level must cherish the values of democracy and, therefore, a Pramukh can be removed when a vote of no confidence is passed against him. Once the no confidence motion fails, it cannot be brought again for one year. It is worthy to note here that sub­section (13) of Section 15 provides that no notice of a motion under Section 15 shall be received within two years of the assumption of office by a Pramukh.”

Hence, it was held that the scheme of the Act and Section 15 is in consonance with the principle of stability of rural governance. [Kiran Pal Singh v. State of Uttar Pradesh, 2018 SCC OnLine SC 547, decided on 17.05.2018]

Case BriefsSupreme Court

Supreme Court: In the matter where the family of a deceased Safai Kamdar appointed by a Gram Panchayat, sought family pension, the question before the Court was to decide the deceased was a member of the Panchayat Service as envisaged by Section 203 of the Gujarat Panchayats Act, 1961 (the Act), thereby entitling the appellant to claim any family pension or gratuity.

The deceased was appointed by Gram Panchayat by passing an appropriate resolution in the year 1964. It was contended by the respondent that since the deceased was not appointed by the District Panchayat Service Selection Committee constituted under Section 2(11) of the Act, the family of the deceased was not entitled to pension. The Gujarat High Court considered the said contention and observed that only those employees who had been appointed following the procedure laid down in Section 203 of the Act and the rules framed thereunder, would alone be members of Panchayat Service, apart from the allocated employees from the municipality to the Panchayats at the time of formation of the Panchayats or such other employees who had been recognized as members of Panchayat Service by the State Government, or by the District Panchayat Selection Committee. It was further observed that merely because Panchayat had paid salary and other benefits to the deceased, it did not mean that he was member of Panchayat Service so as to get the benefits available to members of Panchayat Service like family pension and gratuity.

The bench of V. Gopala Gowda and U.U. Lalit, JJ did not agree with the ruling of the High Court and hence, took notice of the Gujarat Service (Appointing Authorities) Rules, 1967. It was noticed that Rule 2 of the said Rules stipulated, inter alia, that the Appointing Authority in respect of posts under the Gram Panchayat, which are included in the “local cadre” is Gram Panchayat itself and that ‘local cadre’ includes ‘Inferior Panchayat Services’. The Court, hence, held that in the year 1964 when deceased was appointed, there were no rules governing the appointment in question. And that nothing had been pointed out how Gram Panchayat was not competent to make such appointment or that at the relevant time in question the power to make appointments was vested in an authority other than Gram Panchayat or that there was any separate modality or procedure prescribed for effecting such an appointment. Hence, it was held that the family of the deceased was entitled to family pension and gratuity. [Harijan Paniben Dudabhai v. State of Gujarat, 2016 SCC OnLine SC 652, decided on 01.07.2016]