Case BriefsHigh Courts

Gauhati High Court: Songkhupchung Serto, J. was hearing a writ petition of mandamus under Article 226 of the Constitution of India pertaining to violation of the fundamental right to health guaranteed under the right to life of Article 21 of the Constitution.

This writ petition was filed by the son of a woman who died while she was being taken to district hospital for child delivery, praying for a direction to the respondents to pay compensation for the death of his mother and the unborn baby and to pay him and his family a sum of Rs 20,000 as per entitlement under the National Family Benefit (NFB) Scheme.

The counsels for the petitioner, K. Kikhi, Neiteo Koza and Pakinrichapbo, submitted that the Sub-Centre at the petitioner’s village, providing basic facilities for conducting delivery was not equipped properly, therefore institutional deliveries could not be conducted forcing the villagers to conduct delivery at home or at other health centres. It was also submitted that providing of proper health facilities by the State comes under the ambit of Article 21 of the Constitution. Therefore, the State was duty-bound to provide robust health facilities so that citizens not only survive but live in health and dignity.

The counsels for the respondent, A. Ayemi, N. Mozhui, N. Rupreo and Yangerwati, submitted that the writ petition should be dismissed as the petitioner never made any demand by submitting a representation to the authorities concerned. Also, not all the people concerned were made a party in the case. The petitioner’s mother didn’t come to the Sub-Centre and didn’t approach the ASHA to receive the benefits

The Court did not accept the contentions of the respondent for two reasons: (i) because it was the duty of the Sub-centre including the ASHA to spread awareness and to convince such woman to visit the Sub-centre for availing such benefits provided under the scheme; (ii) because it was not plausible that people in such circumstances would have hired a vehicle to go to a hospital situated at the place more than 120 km away from their village while such facility was easily available at their own village. 

Also, the submission of demand prior to the filing of a writ petition was not an absolute prerequisite for approaching a writ court under public law and all the responsible persons who were stakeholders had been impleaded in the writ petition.

The Court held that health and medical care came within the sweep of Article 21. Right to healthy life referred to and meant the most attainable levels of health that every human being was entitled to. The Court relied on the case of P. Parmanand Katara v. Union of India, (1995) 3 SCC 248 wherein the Supreme Court had categorically held that Article 21 of the Constitution cast an obligation on the State to preserve life. Therefore, those who were in charge of the health of the community were under obligation to ensure that the basic facilities which were intended to be made available for the poor and needy and in this case women and child reached the targeted persons.

Considering the facts and circumstances of the case the Court directed the respondents to pay a sum of Rs 25 lakhs as exemplary compensation, to pay a sum of Rs 15,000 to meet the legal expenses, to reimburse the amount spent on transportation since the deceased was entitled to free transportation charge for going to the hospital and to pay a sum of Rs 20,000 to the petitioner and his family under the NFB Scheme as the same had not been paid to them. [Moba Changkai v. State of Nagaland, WP (C) No. 179 of 2016, decided on 15-11-2019]

Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J. while hearing a petition seeking conferment of citizenship, declined to issue mandamus for the same on the ground that citizenship falls within the exclusive executive domain of the Central Government. However, directions were given to the Government to consider the request of the petitioners.

Petitioners herein were descendants of indentured laborers, who hailed from the present-day State of Tamil Nadu. Their case was that they faced severe discrimination at the hands of the Sri Lankan Government after it gained independence in the year 1948, suffered the 1983 riots and thus were forced to flee from there. Hence, they should not be considered as a part of the Tamil-speaking natives of Sri Lanka and owing to their genealogical roots in Tamil Nadu, while those from northern and eastern Sri Lanka were treated as refugees, persons like them must be treated as Indian repatriates. It was submitted that once they entered India, most of them were kept in Kottapottu camp in Trichy, and when they apprehended forcible deportation back to Sri Lanka, they filed a writ petition in Madras High Court, whereby, an interim injunction was granted, and the case was disposed of by recording the undertaking given by the Government that the petitioners will not be forcibly sent back to Sri Lanka. Since then the petitioners had been periodically submitting representations seeking conferment of Indian citizenship.

The petitioners had blood relatives only in India, and solely because their forefathers had gone to work as laborers in tea estates of Sri Lanka, the petitioners had to suffer the condition of statelessness. They were forced to escape from Sri Lanka to save their lives and limbs and as the authorities showed no positive approach, the petitioners moved the Court seeking conferment of citizenship.

The Government of Tamil Nadu filed a counter-affidavit stating that the petitioners were given monthly cash doles, ration essential commodities, accommodation, dress materials, utensils and free education, etc., however, the grant of citizenship was a policy matter for the Government of India to decide. The Government of Tamil Nadu prayed for the dismissal of the writ petition on the basis that petitioners were refugees and not repatriates. Further, they were not eligible for grant of citizenship under the provisions of the Indian Citizenship Act, 1955, as the petitioners were illegal migrants and never had a valid residential permit/ long term VISA because they came through an illegal route. Thus, the petitioners could not demand citizenship as a matter of right, as it was at the discretion of the Central Government to grant or refuse an application for grant of Indian citizenship.

The Government of India contended that it had not received any application for the petitioners, even when in the typed set of papers; a number of representations had been enclosed urging the authorities to grant citizenship to the petitioners.

The counsel for the petitioners relied on many international documents such as Universal Declaration of Human Rights and Conventions relating to the status of stateless persons and resolutions passed in various conventions, however also admitted the non-commitment of India to any of these conventions. The counsel invoked Article 51(c) of the Constitution of India which mandates the Government to foster respect for the International law and treaty obligations in dealings of the organized people with one another. The Court, however, opined that it cannot ignore the observations made by the Supreme Court in Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665 that “the duty of the State is to protect the nation from external aggression and internal disturbances on account of large scale illegal migration from neighboring countries which is also a form of aggression”.

On a reading of the provision of Citizenship Act, it was opined that the petitioners were evidently illegal migrants. However, owing to petitioners’ intention of making India their permanent home, the Court opined it to be a unique situation, for they had been in camps for 35 years under surveillance in severely restricted conditions and a state of statelessness for a long period which violated their right under Article 21 of the Constitution. Thus, the Central Government was directed to use its implied power as given under the opening clause of Section 5(1) of the Act and also as recognized by the Hon’ble Delhi High Court in Felix Stefan Kaye v. Foreigners Regional Registration Office, 2018 SCC OnLine Del 8212, keeping in mind the application of Article 21 of the Constitution of India to refugees and asylum seekers, and most certainly to the petitioners who were genealogically rooted to the Indian soil.

Taking into consideration the fact that the petitioners came to India when they faced grave threat to their lives and limbs, and had no other option but to seek asylum here, the Court allowed the petitioners to submit a fresh application seeking citizenship to the respective District Collector concerned, and directed him to forward the same without any delay to the Central Government, which when once received must pass appropriate orders subsequently within a period of sixteen weeks. The Court also reminded the Central Government of its power to consider the applications favorably notwithstanding the technical status of applications as that of illegal migrants, and also to keep in mind the unique situation in which the petitioners were placed.

Refraining from issuing any positive mandamus directing the Central Government to provide citizenship to the petitioners, the Court disposed of the writ petition accordingly.[P. Ulaganathan v. Government of India, Writ Petition (MD) No. 5253 of 2009, decided on 17-06-2019]

Case BriefsHigh Courts

Allahabad High Court: Surya Prakash Kesarwani, J. dismissed the present “PIL” while imposing an exemplary cost on the petitioner for abusing the process of the court.

The petitioner filed this PIL for removal of encroachment and illegal possession of respondents from particular plots in the District Ballia which according to him were recorded in the revenue records as ‘khel ka maidan’, ‘khalihan’ and ‘khad ka gaddha’ respectively.

By the order of the Sub-Divisional Magistrate, some plots were recorded as banjar and some as ‘khalihan’, ‘khad ka gaddha’ and ‘khel ka maidan’ after they were exchanged. These newly recorded banjar lands were allotted for residential purposes to nineteen persons. After allotment of land for residential purposes, the respondents constructed their houses (huts and tin shed) and they still reside. These people have no other place of shelter except these houses.

Counsel for the petitioner, Jitendra Shanker Pandey submitted that no bhoomidhari rights shall be created on the land allotted and it is also set apart for public purposes. The aforesaid land falls under Section 132 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950.

The Standing Counsel stated that present PIL is not only wholly devoid of substance but it is also abuse of process of Court. The petitioner has completely failed to disclose his credential to invoke the PIL.

The Court after considering the submissions of both the parties framed some questions for determination:-

  1. Whether removal of shelter of respondents would amount to infringement of their fundamental rights guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India?
  2. Whether as a consequence of cancellation of lease should the State-respondents provide alternate accommodation/shelter?
  3. Whether any relief is granted in the present PIL?

The Court observed that the landless agricultural labourers were residing before 1994. Therefore, the disputed lands which were part of some public utility land were exchanged by order of the Sub-Divisional Officer which was passed after due inquiry and spot inspection by the revenue authorities. The lease was also granted by a competent authority.

For the purpose of strengthening the arguments, some cases were relied upon – U.P. Avas Evam Vikas Parishad v. Friends Cooperative Housing Society Ltd., 1995 Supp (3) SCC 456, para 8; State of Karnataka v. Narasimhamurthy, (1995) 5 SCC 524, Chameli Singh v. State of U.P., (1996) 2 SCC 549, and Ahmedabad Municipal Corpn. v. Nawab Khan Gulab Khan, (1997) 11 SCC 121. In all these cases, the Supreme Court held that right to shelter is a fundamental right, guaranteed under Articles 19 and 21 of the Constitution of India.

After observing the facts and circumstances of the case and the submissions of the parties, the Court held that – “Shelter for a human being, is not mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities. Right to life guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. Right to shelter is a fundamental right guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India”.

The court observed that the weaker section of the society like the poor and landless agricultural labourers have the right to basic human and constitutional rights to residence. Thus, it becomes the duty of the State to fulfill those. But gives no person the right to encroach and erect structures or otherwise on footpaths, pavement or public space or at any place reserved or earmarked for a public utility.

The Court after contemplating on the point that the petitioner had not shown his credential and is clearly visible that is his interest and his son’s alone in the filing of this petition. This indicates abuse of process of Court by the petitioner in filing the present PIL and suppression of material facts. Therefore, the exemplary cost is necessary to be imposed upon the petitioner as the view taken in the case of Punjab State Power Corpn. Ltd. v. Atma Singh Grewal, (2014) 13 SCC 666 and Dnyandeo Sabaji Naik v. Pradnya Prakash Khadekar, (2017) 5 SCC 496.

As the questions for determination were interlinked, the conclusion which comes out is that Right to Shelter is a fundamental right and the relief sought by the petitioner in this PIL is an attempt to infringe fundamental rights of the respondents. If the State authorities find it indispensable to remove the respondents they shall provide suitable accommodation to them.[Rajesh Yadav v. State of UP, 2019 SCC OnLine All 2555, decided on 01-07-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal: A Coram of Justice A.K. Goel (Chairperson), Justice S.P. Wangdi (Judicial Member), Justice K. Ramakrishnan (Judicial Member) and Dr Nagin Nanda (Expert Member) disposed of an application filed against Volkswagen India Private Ltd. after imposing a fine of Rs 500 crores on it.

This application had been filed before the Tribunal alleging that engines manufactured by Volkswagen have been found to be in violation of norms in USA and Europe on account of the employment of ‘cheat devices’, defeating the test of the actual state of affairs. This matter was famous by the name of ‘Volkswagen Emission Scandal’ globally. In September 2015, it came to light that Volkswagen had installed ‘cheat devices’ in engines of thousands of their vehicles since 2009. The software helped make the cars meet exhaust pollution standards when monitored in tests but in real, the emissions exceeded the limits. As per reports, the scandal has so far cost Volkswagen more than 26 billion Euros in fines, compensation and buyback.

The learned counsels for the applicant Sanjeev Ailawadi, Vipul Ganda and Preeti Nain brought to notice of the Tribunal various evidences which were relied upon by the applicant- “statement before the Lok Sabha on 11-04-2017, result of testing by Automotive Research Association of India (ARAI), notice issued by the US Environment Protection Agency (USEPA), news item dated 05-11-2015 in Business Standard under the heading “Volkswagen fails emission test in India”, news item dated 28-09-2015 in the Economic Times under the heading “Timeline of events in Volkswagen pollution cheating scandal” and statement on behalf of Ministry of Heavy Industries in the counter affidavit stand of the manufacturers”.

The learned counsels for the respondent  Pinaki Mishra, Bishwajit Dubey and Surbhi Khattar raised an objection to the application by saying “that the manufactures have been found to be compliant of the regulatory environmental norms. In view of this conclusion, there being no norms prescribed for on-road testing, manufacturers cannot be held to be noncompliant in any manner.” They further made reference to Notification dated 16-09-2016 issued by the Ministry of Road Transport and Highways under Section 212 of the Motor Vehicles Act, 1988 laying down that PEMS (Portable Emission Measurement System) can be used. It is submitted that this provision has been introduced for the first time on the said date. The same could not be applied in the present case prior to Notification.

After hearing both the sides, Tribunal observed that it cannot accept the objections to the report raised on behalf of the manufacturers. The report categorically finds the use of cheat device and violation of norms at the time of road testing. It has also been found that nitrogen oxides (NOx) emission in certain models of Volkswagen were higher than the other Indian vehicles tested using the same protocol which was corrected during the recall of vehicles under the supervision of ARAI.  It also observed that the ‘Precautionary Principle’ and ‘Sustainable Development’ principle are part of Article 21 of the Constitution of India and Section 20 of the National Green Tribunal Act, 2010. ‘Polluter Pays’ principle does not mean polluter can pollute and pay for it. It would include environmental cost as well as a direct cost to people. Thus, the Tribunal imposed a fine of Rs 500 crores on Volkswagen.[Saloni Ailawadi v. Volkswagen India (P) Ltd., 2019 SCC OnLine NGT 69, decided on 07-03-2019]