Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal, J., allowed the petition and granted compensation for infringement of right to a speedy trial under Article 21 of the Constitution of India.

Background

The facts of the case are such that the petitioner herein has filed the instant writ petition stating inter alia that he remained in jail for commission of offence under Sections 420/34 and 120B of Penal Code, 1860 i.e. IPC from 14.5.2012 till the date of delivery of judgment i.e. 08.11.2016 i.e. 4 years, 6 months and 7 days, whereas he has been awarded sentence only for three years for offence under Section 420/34 of the IPC and three years for offence under Section 120B of the IPC and sentences have been directed to run concurrently, as such, it is a clear case where his constitutional right of speedy trial enshrined in Article 21 of the Constitution of India has admittedly been violated and for which he is entitled to appropriate compensation jointly and severally from the respondents.

Submissions

Counsel for the petitioner Ms Reena Singh submitted that that “right to speedy trial” is his fundamental right and on account of non-conclusion of trial within a reasonable time, the petitioner remained in jail for a period more than he has been sentenced now at the conclusion of trial, which is violative of his fundamental right as guaranteed under Article 21 of the Constitution of India and for which, he is entitled for compensation of ₹ 30 lacks for his said illegal detention for about 1 year, 6 months and 8 days jointly and severally from the respondents.

Counsel for the respondents Mr Jitendra Pali submitted that detention of the petitioner was judicial custody in accordance with law and the procedure established by law, as such, the same cannot be termed as illegal detention and the petitioner. It was further submitted that the petitioner is not entitled for any compensation as his fundamental right of speedy trial has not been violated and he remained in judicial custody till the date of judgment for commission of offence which have been found proved by the trial Court.

Mr Prasoon Agrawal (Amicus Curiae) relied on judgment P. Ramchandra Rao v. State of Karnataka, (2002) 4 SCC 578 submitted that “right to speedy trial” is a fundamental right of an accused under Article 21 of the Constitution of India.

Observations

  1. The court relied on “Common Cause” v. Union of India, (1996) 4 SCC 33 and observed that it has clearly been established that the right to speedy trial in criminal case is valuable and important right of the accused therein and its violation would result in denial of justice and that would result in grave miscarriage of justice.
  2. The Court relied on judgment Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 and wherein it was held ” Award of compensation in a proceeding under Article 32 by the Supreme Court or by the High Court under Article 226 is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection, of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention of the fundamental right.”

The Court thus observed that this Court in the exercise of jurisdiction under Article 226 of the Constitution of India under public law, can consider and grant compensation to the victim(s) who has suffered an infringement of fundamental right i.e. right to life and personal liberty guaranteed under Article 21 of the Constitution of India.

  1. Right to life is a fundamental right guaranteed under Article 21 of the Constitution of India and for its breach or violation, the petitioner is entitled to monetary compensation from the respondents who are responsible for its breach.
  2. The Court relied on judgment Vijay Kumar Gupta v. State, 2008 SCC OnLine Pat 568 has held that detention of a prisoner in custody in excess of the period that he has been sentenced infringes upon his fundamental right to life and liberty and as such, he is entitled for monetary compensation and further held that both the prosecuting authority and Court remained oblivious of his continuous detention for more than a period, the sentence for any of the offence would have carried.

The Court observed that following the principles of law and reverting to the facts of the present case, it is quite vivid that the petitioner remained in jail as undertrial for a period of 4 years, 6 months and 7 days, whereas he has been awarded punishment of 3 years for offences under Section 420/34 and Section 120B of the IPC (separately) and both sentences to run concurrently, as such, he remained in jail in excess (one year and six months) for more than the sentence awarded by concerned trial Magistrate, on account of delay in conducting the trial, despite twice this Court while hearing bail applications on 22.4.2013 and 24.6.2014 directed the trial Magistrate to conclude the trial expeditiously, which was not taken cognizance of by the learned trial Magistrate by which the petitioner continued in jail for a period more than the actual sentence awarded violating the petitioner’s right to speedy trial guaranteed under Article 21 of the Constitution of India and for which he is entitled for monetary compensation.

Decision

The Court held the petitioner will be entitled for ₹10,400×18=1,87,200/along with 6% interest from today till the date of payment jointly and severally which respondents No.2 and 4 will deposit within a period of 30 days from today.”

 [Nitin Aryan v. State of Chhattisgarh, Writ Petition (Cr.) No.629 of 2020, decided on 07-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Jharkhand High Court: Taking into consideration the reason of urgency i.e., acute surge in Covid-19 pandemic from which people are suffering and dire need of Oxygen, the Division Bench of Ravi Ranjan, C.J., and Sujit Narayan Prasad, J., directed to release Oxygen cylinders which were lying in judicial custody in connection with various cases.

The AG, Mr. Rajiv Ranjan, had preferred this interlocutory application in which urgency had been shown for passing appropriate order for utilization of Oxygen cylinders which are lying in judicial custody in different districts in connection with various cases for the purpose of using those Oxygen cylinders to the persons who are suffering from Covid-19 pandemic and who are in need of Oxygen. The AG had urged that such Oxygen cylinders may be directed to be released in favour of concerned District Health Committee and once the situation will be normalized or there will no need of such Oxygen cylinders, the same will be returned to the concerned police station.

Opining that Oxygen cylinders are of prime importance in saving life of persons suffering from Covid-19 pandemic and that number of such Oxygen cylinders are lying in judicial custody in connection with various cases and if it would be released after imposing appropriate condition, no prejudice would be caused to the parties to the lis rather it will be more beneficial for the people at large, who are suffering from Covid-19 pandemic and further the State Government will be in better position in facilitating the treatment of persons who are suffering from Covid-19 pandemic and are in dire need of Oxygen, the Bench ordered to release the Oxygen cylinder(s) without prejudicing the right of the parties on following conditions:

  1. The District Health Committee of concerned district shall furnish an affidavit with an undertaking before the concerned court for release of such Oxygen cylinder(s).
  2. The undertaking shall contain all details of cylinder viz. quantity of oxygen or its weight etc. and further with specific undertaking that such cylinder would be returned within a period of three months or even earlier if it will be required by the Court.
  3. The Courts, where cases are pending shall pass necessary order by recording such undertaking furnished by the District Health Committee.
  4. The District Health Committee was further directed to ensure identification of such cylinders before release and further secure return of such Cylinder on “as is where is” basis.

Further, it was also directed that the Deputy Commissioner-cum of the District Health Committee concerned shall with consultation of Civil Surgeon of the respective district ensure efficacy of such cylinder(s) and only after testing its perfection it may be used in order to avoid any casualty.

Additionally, taking note of media report regarding precarious condition of Sadar Hospital and death of five patients there due to interruption in supply of Oxygen, the Bench stated,

It is very unfortunate that in the Sadar Hospital at Ranchi, as reported that five patients, who were suffering from Covid-19, have died due to interruption in supply of oxygen

Accordingly, the State was directed to conduct a detailed enquiry on the issue and fix accountability upon the erring person(s) and submit its report. Further, the AG was directed to apprise the Court by filing affidavit with respect to the arrangement made in the Sadar Hospitals of each and every district of the State as also the arrangement made at Medical College, Dhanbad, containing therein the details of beds supported with Oxygen, number of the doctors and para-medical staffs as also the position of oxygen in the said hospitals.

[Suo Motu v. State of Jharkhand, 2021 SCC OnLine Jhar 368, order dated 08-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

For the Petitioner: Rajendra Krishna, Advocate

For the State: Rajiv Ranjan, AG and Sachin Kumar, AAG-II

For the U.O.I.: Rajiv Sinha, A.S.G.I.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Dipankar Datta, CJ., and G. S. Kulkarni, J. had addressed a suo motu case on the issue of alarming rise in COVID-19 cases in prisons of the State of Maharashtra.

By an earlier order, the Bench had passed several directions to de-congest the correctional homes and to compel adherence to maintenance of COVID-19 protocol in such homes to ensure safety and well-being of the correctional home inmates as well as the staff.

Pursuant to the said order, a report had been submitted by the State asserting that sanitizers had been made available as well as appropriate briefing is given to the authorities for maintaining COVID-19 protocol inside the correctional homes. Additionally, only those staff, who are vaccinated, are being assigned duties and to interact with the inmates. The State had assured that urgent steps would be taken to ensure that the entire prison staff is vaccinated at the earliest.

Another major issue before the Court was, the particulars of medical officers as well as paramedical staff posted in the various central prisons and district prisons present a very dismal picture. In case of both medical officers and para-medical staff, nearly 1/3rd of the vacancies remain unfilled. That though Medical Officers belonging to Classes I, II and III are shown to have been posted at various correctional homes but the principle behind such posting had not been indicated in the brief note submitted by the state. Similarly, the Yerwada Central Prison was found not to have the service of a single Medical Officer Class I. The Bench asked the state how it proposes to deal with the problem of dearth of medical officers and para-medical staff at the various correctional homes. The state was directed to at least make efforts to fill up all the sanctioned posts and ensure zero vacancy qua such posts. The Bench said any omission or failure to deal with the concern at hand by the State in the near future may not be viewed lightly.

While noting the progress made in achieving compliance, the Bench further issued further directions:

  1. The authorities to whom the guidelines/ recommendations are issued by the High Power Committee in furtherance of the avowed object of reducing the problem of overcrowding in the correctional homes shall follow the same in letter and spirit.
  2. The second direction was with regard to devising ways and means to regulate the entry of staff in the correctional homes, since it was apprehended that such staff were the carriers of the virus and contributed to its spread among the inmates.
  3. It is revealed that pulse oximeter reading, temperature reading as well as tests for symptoms common to the infection in issue are required to be undergone by each staff. Such staff also has to wear appropriate masks, properly.
  4. The shall, as far as practicable, have all the prison staff vaccinated as early as possible.
  5. State shall not compel an inmate to obtain release either on interim bail or emergency parole, without his free will/volition.
  6. Ministry of Health and Family Welfare, Government of India has issued Standard Operating Procedure (SOP) on COVID-19 ~ Vaccination of Persons without Prescribed Identity Cards through CoWIN portal which stipulates that if a group of people is found not to have any of the 7 specified identity cards required for vaccination, such group of people may be registered on the CoWIN portal and further steps accordance with the SOP for vaccination. Accordingly, directions were issued to the State as well as the prison authorities not to insist on production of Aadhar Cards by correctional home inmates and to proceed for vaccination of those inmates, not having the specified identity cards, in the manner as laid down in the SOP without any delay.
  7. To ensure that the statutory mandate of the Maharashtra Prison (Prison Hospital) Rules, 2015 framed under the provisions of the Prison Act, 1894 are complied with as early as possible; also, if there be dearth of medical officers, a policy of rotation could be formulated and pressed into service.
  8. Noticing the news report regarding water shortage in Taloja correctional home, the Bench directed the authorities to take immediate steps to restore the water supply.

Lastly, observing the rising number of Covid positive inmates and jail staff, the Bench opined that much is required at the end of the prison authorities to arrest the spread of the pandemic in the correctional homes. Hence, the Court asked the state to take appropriate steps within the limits of its capacity.

[Suo Motu v. State of Maharashtra, 2021 SCC OnLine Bom 715, order dated 12-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Counsel for the State: Deepak Thakare and Akshay Shinde

Counsel for People’s Union for Civil Liberties (Intervenor): Mihir Desai with Vijay Hiremath, Devyani Kulkarni and Mihir Joshi

For Centre for Criminology and Justice (TISS): Professor Vijay Raghavan

Case BriefsHigh Courts

Bombay High Court: Observing that the situation about the supply of oxygen at the Goa Medical College is quite grim, the Division Bench of M.S. Sonak and Nitin W. Sambre, JJ. expressed that,

We have long passed the stage of determining whether patients are suffering from the lack of oxygen or not. The material placed before us establishes that patients are indeed suffering and even in some cases succumbing for want of the supply of oxygen, in the State of Goa.

Opining that the affidavit filed by Dr. Shivanand Bandekar, Medical Superintendent and the Dean of Goa Medical College would deserve greater credence than the affidavit filed by the Under Secretary (Health) since the Dean is monitoring the patients on day to day basis, the Bench taken noted of the said affidavit regarding details relating to deficit of oxygen supply. The affidavit revealed that, “hospitals were facing many interruptions in the supply of central oxygen on daily basis, leading to near critical fall in the oxygen saturations of patients en mass in the intensive care units. That though there is no problem with the availability and supply of Liquid Medical Oxygen, which is stored in the tank of 20,000 litres at the Super Specialty Block, this LMO cannot be directly used for the main GMC building, which is relying on the supply of oxygen via cylinders which are brought on trolleys and as loose cylinders there has been a problem with the supply of these trolleys and loose cylinders as a result of which there have been instances of a drop in supply of oxygen to the patients, which has resulted in casualties.

Noticing the abovementioned, the Bench said that the State Administration have to make further efforts, in addition to the efforts which they have already been making to ensure that Goa Medical College is supplied with the required amount of oxygen. The Bench emphasized, this is vital because the right to life is a fundamental right guaranteed by Article 21 of the Constitution.

There is, therefore, a corresponding duty cast on the State to ensure that this life is not extinguished on account of inability on the part of the State to supply oxygen to these unfortunate victims of the pandemic.

The duty of state can neither be avoided by pleading helplessness nor by putting forth logistical difficulties in sourcing and supplying oxygen. Such logistical problems must be got over at the earliest so that this tragedy of victims gasping for breath in the presence of their near and dear ones and in several cases even dying for want of necessary oxygen supply is arrested at the earliest. Therefore, the Bench directed the State to take all necessary steps to ensure that such logistical difficulties are overcome at the earliest and there are no casualties for want of a supply of oxygen to the pandemic victims.

Additionally, on the request of state the Bench waived the requirement of Covid negative certificate for entering in Goa to two drivers and one helper per goods vehicle making essential supplies of oxygen, medical drugs and equipments, milk, vegetables, food grains, etc. until further orders. However, the Bench made it clear that at each of the borders thermal scan of such persons would be necessary and if they display the symptoms, then, the police authorities or the other authorities should deny access to such persons within the State of Goa. The Bench clarified,

This limited waiver is not to be construed as a general license for permitting any persons to enter into the State of Goa, without having the Covid negative certificate.

The statistics suggest that the positivity rate in Goa is still high. The medical infrastructure is severely overstretched. The Doctors and nurses and the paramedical staff at the forefront of this fight against the epidemic are exhausted. Therefore all concerned must realize that there is no unnecessary insistence of waiver in the name of protecting the interests of the economy. Therefore, the waivers allowed were directed not to be misused by anyone to avoid further spread of the virus. The Bench expressed,

 No doubt, the importance of the economy can never be undermined, but at this stage at least, the priority and emphasis shall have to be on issues of health and survival. Ultimately, the economy is for the people and not the other way round.

Once the position improves, obviously the focus can and perhaps will have to shift on the economy. Accordingly the State administration was directed to focus maximum on improving the position of oxygen supply in the State and in particular at the GMC as the statistics indicate alarming number of deaths taking place in the State of Goa practically every day. Hence, this issue has to be given priority over other issues.

[Roshan Mathias V. State of Goa,2021 SCC OnLine Bom 708, order dated 12-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Counsels for the Petitioners: Nigel Da Costa Frias with Vishal Sawant and G. Malik

Counsels for the State: AG D.J. Pangam  with AAG Deep Shirodkar

For Scoop Industries Pvt. Ltd.: V. Rodrigues,

For Principal Secretary (Finance), State of Goa: Mr. Puneet Kumar Goel

For Secretary (Health), State of Goa: Mr. Ravi Dhawan,

Dr. Tariq Thomas, Secretary, Urban Development, State of Goa.

Dr. Shivanand Bandekar, Dean, Goa Medical College, Bambolim.

Dr. Viraj Khandeparkar, Nodal Officer, Goa Medical College,

Bambolim.

 

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

Delhi High Court: Jayant Nath, J., reiterated the consistent position of law that right to access to clean drinking water is a fundamental right.

Petitioners who have filed the instant case are veterans, decorated officers, war-widows and Armed Forces Personnel belonging to all the three wings who were allotted plots in question for residential tenements by respondent 1 pursuant to a scheme by respondent 1 in 1961.

It has been stated that they are legally authorized residents and must be recognized/acknowledged by every respondent. Allotment of plots was by the society formed by the Ministry of Defence which culminated into proper sale deeds registered with the office of sub-registrar.

Further, it was claimed that the petitioners have been paying tax to MCD at urban rates and that subsequently, this was acknowledged as residential in the Master Plan of Delhi 2021.

Petitioners grievance is that despite repeated attempts since last 30 years, MCD has failed to provide a single facility to the petitioners till date under the garb of the petitioners allegedly being unauthorised. It is pleaded that such a stand of the authorities is completely untenable, unjust and illegal.

Harassment faced by War Widows and Disabled/Decorated Ex-Servicemen

 It is stressed that ex-servicemen resettled under this very scheme in many other stations in the country are living peacefully since the last 45 years. It is only in Delhi that war-widows and disabled/decorated ex-servicemen resettled under the Government of India mooted scheme have been harassed and denied essential basic amenities of water, electricity, sewer, road, etc. for the last 55 years.

 Further, adding to the above agony, petitioners have also stated that the authorities including the local police do not allow the petitioners to repair/build their boundary walls. The petitioners’ colony roads have become a thoroughfare for tens of thousands of people living in adjoining areas. This has also affected the security and the lands are open to encroachment.

Court’s Analysis

First and foremost thing that strikes the Court was that the petition seemed to have completely ignored that the area in question was as per the stipulated regulations for agriculture purposes.

Delhi Jal Board’s affidavit had mentioned that the Defence Services Enclave is an unauthorized colony mentioned in Registration No. 453 in the list of total 1639 unauthorized colonies, which have been identified by Urban Development Department, Govt. of NCT of Delhi.

South Delhi Municipal Corporation also in its counter affidavit has stated that the Defence Services Enclave is an unauthorised colony and SDMC is not carrying out any development work pertaining to it. Similarly, Govt. of NCT of Delhi in its counter-affidavit also states that Defence Service Enclave is an unauthorised colony.

Bench stated that merely because the petitioners were allotted the plots cannot be a ground to insist that the area is for residential purposes.

As per Section 7 of the said Act, DDA has to prepare a Master Plan for Delhi which will indicate the manner in which the land in each zone is proposed to be used. Further, Zonal Development Plans are to be prepared which will indicate the aspects stated in Section 8 of the said Act. As per Section 14 of the said Act, no person shall use any land in a particular zone otherwise than in conformity with the plan.

 High Court noted that the petitioners are all retired defence personnel who have devoted the most productive period of their lives defending the nation’s borders and performing other dangerous and difficult tasks normally performed by defence service officers.

Bench requested Secretary, the Ministry of Defence/respondent 1 to convene a meeting of functionaries who can take a decision in terms of the directions of Division Bench of this Court in WP (C) 8276 of 2014.

Further, as far as drinking water is concerned, in the counter-affidavit of Delhi Jal Board it was stated that the development work like laying of water pipeline in the area in question could only be executed by the said respondent subject to clearance from the Urban Development Department, GNCTD.

As the colony in the instant case was unauthorised, permission for installation of 4 number tube wells has been given to the RWA and at present, water is being supplied for drinking purposes through the existing tube wells as an interim arrangement. The said arrangement is said to be maintained and regulated by the RWA.

“…an individual has a right to access to drinking water in quantum and quality equal to his basic needs.”

For the above, Court referred to the Supreme Court decision in A.P. Pollution Control Board II v. Prof. M.V. Nayudu, (2001) 2 SCC 62.

“Right to access to drinking water is fundamental to life and there is a duty of the State under Article 21 of the Constitution to provide clean drinking water to its citizens.”

Bench held that the petitioners cannot be deprived of a right to access to drinking water merely on the ground that it is an unauthorised colony. Petitioners were residing in the said area for the last 50 years and could not be continuously deprived of the said right to access to drinking and potable water.

Hence Delhi Jal Board is directed to make an appropriate scheme as per their normal procedure for supply of potable drinking water to the petitioners. The scheme shall be framed and implemented preferably within 9 months. [Delhi Sainik Cooperative Housing Building Society Ltd. (Regd.) v. Union of India,  2021 SCC OnLine Del 34, decided on 11-01-2021]


Advocates for the parties:

Petitioners: Dushyant Dave, Senior Advocate with Bahar U. Barqi, Advocate.

Respondents: Maninder Acharya, ASG with Anurag Ahluwalia, CGSC, Abhigyan Siddhant, and Sharuya Jain, Advocates for Union of India/R-1

Naushad Ahmed Khan, ASC(CIVIL), GNCTD

Puja Kalra, Standing Counsel and Virendra Singh, Advocate for SDMC

Ajay Verma, Senior Standing Counsel with Ruchi Chopra, Advocate for DDA.

Puja Kalra, Advocate for SDMC.

Sumeet Pushkarma, Standing Counsel with Devanshu Lohiya, Advocate for Delhi Jal Board and L.L. Meena (E.E.)

Case BriefsSupreme Court

Supreme Court: In a case where the Union of India was sitting over certain lands since 33 years without any authority, the bench of Indira Banerjee and S. Ravindra Bhat*, JJ directed the Union of India to hand back possession of the suit lands to the appellants, within three months.

“33 years (based upon cessation of the Union’s legal possession) is a long enough time, even in India, to be kept away from one’s property.”


Background of the Case


  • Requisitioning and Acquisition of Immovable properties Act, 1952 was brought into force on 15.03.1952 with the object to enable the Union to requisition or acquire immovable property if the competent authority was of the opinion that any property was necessary for a public purpose. By Section 1(3), the Requisitioning Act was to be in force for six years. Section 3 clothed the Union with the power to requisition properties for any public purpose; Section 7 provided the procedure to requisition (or acquire) lands. It also spelt-out the condition precedents for exercise of the power. Section 8 provided for compensation with regard to property. Section 8(2) laid out the principles applicable for determination of compensation for the property as a recurring one.
  • On 27.02.1958, the Requisitioning Act was amended and the period of its operation extended. In the meanwhile, the Defence of India Act, 1962 (DIA) was enacted by Parliament empowering the Central Government with powers akin to those enacted under the Requisitioning Act.
  • The Union invoked its powers under the DIA and requisitioned the three described properties which belonged to the predecessor of the appellants in 1963.
  • By Act 48 of 1963, Section 1(3) of the Requisitioning Act was amended, and the period of operation of the Requisitioning Act was extended till 14.03.1970. In the meanwhile, the DIA lapsed with effect from 10.01.1968. The Requisitioning Act was amended, incorporating Section 25, which enacted that the immovable property requisitioned under the DIA, which had not been released as on 10.01.1968 was deemed to have been requisitioned under the Requisition Act. It also continued the status quo with respect to determination of compensation completed under the DIA.
  • The Union’s occupation ceased to be lawful, with the lapse of the Requisitioning Act, in 1987.
  • Union asserted that it had acquired at least some parts of the suit lands; these were examined by the High Court on two occasions, and in arbitration proceedings under the Requisitioning Act, on three occasions. The High Court, while noticing that the Union’s claim had no merits (in both its appeal, which was dismissed, as well as in the impugned judgment, disposing of the writ petition), nevertheless refused to issue any direction for the release of the suit lands. The rationale given was that the adjoining areas had been acquired and were used by the Union for defense purposes. The impugned judgment granted indefinite time to the Union to take steps to acquire the suit lands. The Union has not chosen to do so these last 12 years.

Analysis


Legal effect of requisitioning immovable property

Temporarily- i.e. for the period the requisition order is in operation, the owner loses her possessory rights, even though the title remains undisturbed. Since the deprivation of possession is through authority of law, in keeping with fair procedure, the law provides for payment of compensation in accordance with predetermined principles.

“Yet, the taking of property by definition is finite: it cannot result in expropriation or deprivation of title altogether, unless another process for acquiring it, is initiated.”

Right to Property

Stating that it is not open to the state: in any of its forms (executive, state agencies, or legislature) to claim that the law – or the constitution can be ignored, or complied at its convenience, the Court noticed that although the right to property is not a fundamental right protected under Part III of the Constitution of India, it remains a valuable constitutional right. Though its pre-eminence as a fundamental right has been undermined, nevertheless, the essence of the rule of law protects it.

“The phrasing of Article 300-A is determinative and its resemblance with Articles 21 and 265 cannot be overlooked- they in effect, are a guarantee of the supremacy of the rule of law, no less. To permit the state: whether the Union or any state government to assert that it has an indefinite or overriding right to continue occupying one’s property (bereft of lawful sanction)– whatever be the pretext, is no less than condoning lawlessness.”

It was further stated that any condonation by the court is a validation of such unlawful executive behavior which it then can justify its conduct on the anvil of some loftier purpose, at any future time- aptly described as a “loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”

Discussion on facts

Union’s assertion that it had acquired at least some parts of the suit lands was examined by the High Court on two occasions, and in arbitration proceedings under the Requisitioning Act, on three occasions. Each time, the factual findings went against the Union.

“The Union’s occupation ceased to be lawful, with the lapse of the Requisitioning Act, in 1987. Yet, it has implacably refused to hand back possession, each time asserting that it has some manner of rights over it. These facts paint a stark, even sordid picture.”

The Court, hence, held that the impugned judgment of the Karnataka High Court committed an error in refusing relief to the appellants.

Directions

  • The Union of India is directed to hand back possession of the suit lands to the appellants, within three months.
  • It is open to the appellants to seek compensation based on fresh fixation of capital value and recurring annual value, based on the different five- year periods for the last 20 years. Such a claim shall be referred to arbitration, within four weeks of receipt of the reference. The arbitrator shall proceed to pronounce the award within six months of receipt of the reference. This is independent of the Union’s obligation to vacate and hand over peaceful possession of the suit lands within three months.
  • The appellants shall be paid costs, quantified at ₹ 75,000/-.

[BK Ravichandra v. Union of India, 2020 SCC OnLine SC 950, decided on 24.11.2020]


*Justice S. Ravindra Bhat has penned this judgment

For Appellant: Senior Advocate Mohan Parasaran

For Respondent: Additional Solicitor General K.M. Natraj

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of UU Lalit, Vineet Saran and Ajay Rastogi, JJ has allowed the 3 accused in the Dr. Payal Tadvi suicide case to complete their Post-Graduation from the same college.

“While balancing the competing claims, in our view, the Appellants must be allowed to go back to their courses of study otherwise the pendency of prosecution against them will add further penalty in the form of prejudicing their career. Any such adverse impact will negate their rights under Article 21 of the Constitution.”


Background of the case


Dr. Ankita Kailash Khandelwal, Dr. Hema Suresh Ahuja and Dr. Bhakti Arvind Mehare (the appellants), after completing MBBS course were pursuing Post Graduate Degree course (M.D.) in Gynaecology and Obstetrics in Topiwala National Medical College, Mumbai. Dr. Payal Tadvi was also student of Post Graduate Degree Course (M.D.) in Gynaecology and Obstetrics in the same college and was junior to the appellants. On 22.05.2019, Dr. Payal Tadvi committed suicide by hanging herself in her room and in the complaint lodged by her mother, it was stated that Dr. Payal Tadvi was harassed by the Appellants and that they were directly responsible for the suicide committed by her. Hence, a case was registered under Section 306 read with Section 34 IPC, under the provisions of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities), Act, 1989 and also under Section 4 of the Maharashtra Prohibition of Ragging Act, 1999, following which the Appellants were suspended by the Dean of the Hospital and the College. The Appellants were arrested on 29.05.2019.

“During the course of investigation, statements of more than 100 witnesses were recorded by the Crime Branch. After completion of investigation, charge sheet running into 1200 pages was filed and the matter is still at the stage of consideration whether the charges are required to be framed or not.”

In the present case, the Supreme Court was called upon to consider the competing claims in such a way that the individual rights of the Appellants to pursue their courses of study are secured and, at the same time, the conduct of prosecution also runs smoothly and without any interference and possibility of witnesses getting won over.


Key points considered by the Court


  1. The Appellants before have completed two years out of three years’ of course.
  2. The Appellants do not appear to be original residents of Mumbai and, as such, it cannot be said that they or their families have deep-rooted presence in Mumbai.
  3. As noticed in Sumit Mehta v. State (NCT of Delhi), (2013) 15 SCC 570 , if the law presumes an accused to be innocent till his guilt is proved, the Appellants as presumably innocent persons, are entitled to all the fundamental rights including the right to liberty guaranteed under Article 21 of the Constitution and are entitled to pursue their course of study so long as exercise of said right does not hamper smooth conduct and progress of the prosecution.
  4. The stand taken by the State through the affidavit filed by the Deputy Secretary, Medical Education and Drugs Department, Government of Maharashtra, is that the Appellants can complete their Post Graduate course in future after conclusion of the trial. The Court, however, found this stand incorrect and said that even a convict is allowed to have academic pursuits while undergoing sentence and develop his potential as a human being to the fullest.

“The State apparatus must facilitate such pursuits rather than hamper any attempts in that behalf. The Appellants, therefore, by any standard, are entitled to continue their courses of study subject to the caveat expressed earlier.”

  1. It is a matter of record that the statements of all material witnesses have been recorded under Section 164 of the Code. In fact, the High Court went to the extent of ensuring that such statements are recorded so that witnesses could not be won over by the Appellants after they were enlarged on bail. Therefore, the apprehension that the witnesses could be influenced is not quite correct.
  2. The majority of witnesses to be examined by the prosecution appear to be in permanent employment of the College and the Hospital. It will be difficult to imagine that three lady doctors who do not otherwise belong to Mumbai will be able to influence any such witnesses by their mere presence in the College and the Hospital.
  3. The Appellants require to put in the last year of their course and the actual period that they need to undergo by way of training is only nine months.

“It is, thus, a question of putting those nine months in one scale and see whether the other scale becomes so weighty that the request to allow them to pursue their courses must be rejected.”


Directions


Considering the matter in its entirety and especially when the Appellants have to undergo training under the same guide and in the same institution where they were registered, the Court was of the opinion that ends of justice would be met if the Appellants are permitted to go back to the College and the Hospital to pursue their studies, subject to the following conditions:-

  1. The Appellants shall not, in any manner, influence or even attempt to influence any of the witnesses.
  2. The Appellants shall present themselves on each of the dates that the matter gets posted before the Trial Court, unless their presence is specifically exempted.
  3. If it is permissible, and subject to the appropriate permission from the Dean of the College and the Hospital, the Appellants may not reside in the quarters allocated to the residents in the College and the Hospital. However, if the registration as Post Graduate students requires the Appellants to be full time residents in the College and the Hospital, then the Appellants shall do so.
  4. The Appellants shall avail study leave so that their actual period of stay inside the College and the Hospital gets reduced to the maximum possible level.
  5. If there be any holiday or vacation and it is permissible for the residents to be outside the College and the Hospital, the Appellants shall avail that and keep themselves away from the Hospital and the College.
  6. If there be any untoward incident or even likelihood of such incident, the concerned authorities shall immediately report to the Police Station of the area and ensure that the life and liberty of everyone including the Appellants are well protected.

Making clear that the Appellants shall be permitted to pursue their courses of study regardless of the Order of Suspension dated 27.05.2019, the Court directed that

“This Order shall come into effect at the beginning of the second term of academic session 2020-2021 and if such term has already begun, it shall come into effect from 12.10.2020.”

[Ankita Kailash Khandelwal v. State of Maharashtra, CRIMINAL APPEAL Nos.660-662 OF 2020, 11.10.2020]

Case BriefsHigh Courts

Punjab and Haryana High Court: Arun Monga, J., addressed a matter wherein, two girls were in a live-in relationship and were constantly receiving serious threats from their families, due to which they prayed for protection.

Petitioners sought directions to the official respondents to protect their life and liberty as they apprehended threat at the hands of private respondents 4 to 10.

Both the petitioners are girls and they are both major having mutual liking for each other. They both have been in live-in relationship for the past 6 months.

Petitioners counsel further contends that their relationship is not in the nature of marriage as they belong to same sex. They have been receiving serious threats from their family members.

Bench noted from the contents of the petition that both the petitioners have prompted to file the instant petition thinking that live in relationship between the same sex as a couple is not a criminality.

Social ethos, outlook and the philosophy appears to be evolving amongst gay couples so as to gather courage and openly come out of their closets, even though gay marriage is not yet legitimate as per the applicable marriage laws in the country. And, therefore, the live in relationships.

Court added that, What is perhaps coming in the way of petitioners is the social unacceptability of their relationship by their parents/family members, owing to which they are living under constant fear for the reasons stated in the petition which are not being repeated for the sake of privacy and brevity.

Petitioners are entitled to protection of their lives as envisaged under Article 21 of the Constitution of India, regardless of the relationship between them.

Legitimacy of their relationship with each other, is of no consequence viz-a-viz their right to life and liberty.

Court without commenting on the legality of the relationship between the petitioners or otherwise, directed the Senior Superintendent of police, Mohali to take necessary steps to grant protection of life and liberty to the petitioners. [Paramjit Kaur v. State of Punjab, 2020 SCC OnLine P&H 994 , decided on 20-07-2020]

COVID 19Hot Off The PressNews

Supreme Court:  The bench headed by CJI SA Bobde has slated for April 13 hearing on a public interest litigation seeking immediate direction for the payment of basic minimum wages to migrant workers, adversely affected by the COVID-19 lockdown.

During the hearing through videoconferencing, the bench said that it received the affidavit filed by the Central government this morning and slated the hearing for April 13.

The petition was filed by social activists Harsh Mander and Anjali Bhardwaj through senior advocate Prashant Bhushan. The Court asked the Bhushan to go through the affidavit in the meantime.

Bhushan told the court that more than four lakh migrant workers are living in shelter homes and are making a mockery of social distancing.

“If they’re kept in the shelter homes, even if one person has coronavirus they will all get infected,”

Adding that many people will die by Monday, Bhushan said,

“They should be allowed to go back to their own homes. Families need money for survival because they are dependant on the wages,”

Solicitor General Tushar Mehta said that the Central government is on the top of this situation and that it is looking into the complaints received. A call center had also been set up to address and resolve issues, he added. Mehta said that the Ministry of Home Affairs is monitoring the helpline daily.

The PIL sought an immediate direction to the Central government for payment of basic minimum wages to migrant workers and said that the lockdown, imposed in a bid to prevent the spread of coronavirus in the country, discriminated among the citizens.

Last week, the bench of L. Negeswara Rao and Deepak Gupta, JJ had issued a notice to the Central government on a petition seeking immediate direction for the payment of basic minimum wages to migrant workers, adversely affected by the COVID-19 lockdown.

(Source: ANI)

Case BriefsCOVID 19Supreme Court

“Having regard to the provisions of Article 21 of the Constitution of India, it has become imperative to ensure that the spread of the Corona Virus within the prisons is controlled.”

Supreme Court: Noticing that the issue of overcrowding of prisons is a matter of serious concern particularly in the present context of the pandemic of Corona Virus (COVID – 19), the 3-judge bench of SA Bobde, CJ and L. Nageswara Rao and Surya Kant, JJ has directed each State/Union Territory to constitute a High Powered Committee to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate.

The said committee would comprise of:

  • Chairman of the State Legal Services Committee,
  • Principal Secretary (Home/Prison) by whatever designation is known as,
  • Director General of Prison(s)

Giving example, the Court said that the State/Union Territory could consider the release of prisoners who have been convicted or are undertrial for offences for which prescribed punishment is up to 7 years or less, with or without fine and the prisoner has been convicted for a lesser number of years than the maximum.

The Court, however, left it open for the High Powered Committee to determine the category of prisoners who should be released as aforesaid, depending upon the nature of offence, the number of years to which he or she has been sentenced or the severity of the offence with which he/she is charged with and is facing trial or any other relevant factor, which the Committee may consider appropriate.

The Court, further, directed,

  • prison specific readiness and response plans must be developed in consultation with medical experts. “Interim guidance on Scaling-up COVID-19 Outbreak in Readiness and Response Operations in camps and camp like settings” jointly developed by the International Federation of Red Cross and Red Crescent (IFRC), International Organisation for Migration (IOM), United Nations High Commissioner for Refugees (UNHCR) and World Health Organisation (WHO), published by Inter-Agency Standing Committee of United Nations on 17 March, 2020 may be taken into consideration for similar circumstances.
  • monitoring team must be set up at the state level to ensure that the directives issued with regard to prison and remand homes are being complied with scrupulously.
  • the physical presence of all the undertrial prisoners before the Courts must be stopped forthwith and recourse to video conferencing must be taken for all purposes.

“Looking into the possible threat of transmission and fatal consequences, it is necessary that prisons must ensure maximum possible distancing among the prisoners including undertrials.”

  • the transfer of prisoners from one prison to another for routine reasons must not be resorted except for decongestion to ensure social distancing and medical assistance to an ill prisoner.
  • there should not be any delay in shifting sick person to a Nodal Medical Institution in case of any possibility of infection is seen.

[IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS,  2020 SCC OnLine SC 344, order dated 23.03.2020]


Also read:

Coronavirus (COVID-19)| No in-person hearings in SC till further notice; Extremely urgent matters to be heard via video conference

Coronavirus (COVID-19)| SC restricts it’s functioning to avoid mass gatherings in Courts; Only urgent matters to be heard

Coronavirus (COVID-19)| SC extends limitation period for filing petitions/applications/suits/appeals, etc.

COVID-19| SC takes suo motu cognisance of nonavailability of mid-day meals for children due to Coronavirus shutdown

COVID-19| SC takes suo motu cognisance of overcrowding and infrastructure of prisons in the wake of Coronavirus

Case BriefsHigh Courts

Bombay High Court: A Bench of Sunil B. Shukre and Pushpa V. Ganedliwal, JJ. quashed a preventive detention order passed against the petitioner and set him at liberty observing, inter alia, that he was deprived of his fundamental right under Article 21 of the Constitution of India.

The petitioner was preventively detained pursuant to the impugned order passed by the District Magistrate, Wardha.  Yogesh V. Nayyar, Advocate for the petitioner challenged the said order on various counts. Per contra, Nitin Rode, Additional Public Prosecutor supported the order of preventive detention.

The High Court perused the record and was of the view that the impugned order became highly suspect in eyes of law as the DM, while passing the impugned order, took into consideration the fact that the petitioner was indulging himself in sale of liquor containing about 20.60% of ethyl alcohol. This, according to the Court, ought to be ignored in the facts and circumstances of the case at hand. Moreover, it was noted that the representation made by the petitioner under Section 10 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 was not considered by the Advisory Board. According to the Court, “This would mean that a valuable right available to the petitioner has been taken away from him. After all, right to liberty is a fundamental right enshrined in Article 21 of the Constitution of India and although this right is subject to reasonable restriction and can also be temporarily taken away in accordance with the procedure established by law, needless to say, the procedure has to be reasonable and the procedure prescribed for restricting this right has also to be followed in letter and spirit. If that is not done, there would be a deprivation of the fundamental right of the petitioner without following the procedure established by law. This is what has happened in the present case and, therefore, in our view, this is a compounding factor to what is seen by us already as an unjustifiable impugned order, making the impugned order as completely vulnerable in law.” Holding as such, the Court allowed the petition and set the petitioner at liberty. [Amir Khan Nasib Khan Pathan v. State of Maharashtra, 2019 SCC OnLine Bom 494, dated 15-03-2019]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Rajendra Menon, C.J. and V. Kameswar Rao, J. dismissed a petition filed by a practicing advocate, in public interest, challenging the government notification increasing the speed limit for plying motor vehicles on national highways.

The Notification impugned, dated 06-04-2018, was issued by Ministry of Road Transport and Highways, Government of India whereby speed limit was increased for motor vehicles from 100 kmph to 120 kmph. Further, speed limit for motorcycles was increased from 60 kmph to 80 kmph. The petition was filed on the ground that it violated the fundamental right to life available to citizens under Article 21 of the Constitution; the consequence of increasing the speed limit would be loss of life due to increase in number of accidents which may result due to indiscreet plying of vehicles.

The High Court was of the view that the question of permitting plying of vehicles at a particular speed on a particular road like national highway is an administrative action, an executive action, in fact, a policy decision taken by administrative authorities. Such decision is taken by the authorities after due consideration of various factors based on expert and scientific evaluation. The Court held that merely because there was a possibility of accident due to plying of vehicles on the road on a speed, which according to the petitioner was too high, was no reason to interfere into the matter. It was purely a  policy decision within the domain of legislative power of government; it is not for writ courts to interfere in such matters unless statutory provisions in doing so are found to be breached or violated. Therefore, the petition was dismissed. [Siddhartha Singh v. Union of India, 2018 SCC OnLine Del 11138, dated 05-09-2018]

Case BriefsHigh Courts

Calcutta High Court: While deciding the issue of granting compensation to a victim of trafficking, a Single Judge Bench comprising of Rajasekhar Mantha, J., held that the victim was entitled to compensation under W.B. Victim Compensation Scheme 2017 read with Section 357A CrPC.

The victim was identified, traced and brought back from Pune to W.B. Two out of four accused persons were arrested, while the other two remained absconding. The victim filed an application claiming compensation under the Scheme which was framed in pursuance to the mandate provided by Section 357A CrPC. The application was rejected by concerned District Legal Services Authority and the appeal preferred by the victim was also dismissed by State Legal Services Authority. The grounds of rejection being that for providing compensation, both the conditions as envisaged under sub-section (4) of 375A needs to be satisfied; namely, first, the accused not being traced or identified, and second, trial not having commenced. While rejecting the grounds, the High Court observed, if the accused have not been identified, a trial cannot commence anyway. The legislature could not have imposed an occurrence leading to the same result twice over, as a condition precedent. Any multiple conditions must be independent occurrences.

The High Court noted that the object and purpose of the Scheme is, inter alia, that victim of a serious crime, especially women, needs urgent and immediate attention and both physical and mental rehabilitation. Such rehabilitation, from the nature of the scheme and the section, is not dependent on the pace of either investigation or trial. Further, compensation is awarded under the scheme as formulated pursuant to Section 357A, as the fundamental right of the victim under Article 21 (of the Constitution) have been violated. Denial of compensation to such victim would continue such violation and perpetrate gross inhumanity on the victim in question. On the basis of discussion and observations as mentioned hereinabove, the Court held that the State Legal Services Authority was not right in rejecting victims claim. Therefore, the petition was allowed and the above-mentioned order was set aside. The matter was sent back to the State Legal Services Authority for fresh assessment to be completed within ten days. [ Serina Mondal v. State of W.B., 2018 SCC OnLine Cal 4238, dated 25-06-2018]

Case BriefsSupreme Court

Supreme Court:

“Why should I fear death?

If I am, then death is not.

If death is, then I am not.

Why should I fear that which

can only exist when I do not?” – Epicurus

This is one of the several profound quotes quoted by the Constitution Bench in its 538-page long verdict on the issue of Euthanasia.

In 4 separate but concurring opinions, the 5-judge Constitution Bench of Dipak Misra, CJ and AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ held that the right to die with dignity is a fundamental right as held in Gian Kaur v. State of Punjab, (1996) 2 SCC 648 and that ‘passive euthanasia’, both, voluntary and involuntary, is permissible. The Court said:

“the right to live with dignity also includes the smoothening of the process of dying in case of a terminally ill patient or a person in PVS with no hope of recovery. A failure to legally recognize advance medical directives may amount to non-facilitation of the right to smoothen the dying process and the right to live with dignity.”

CJI, for himself and Khanwilkar, J:

Explaining why only passive euthanasia is permissible and not active euthanasia, CJI, writing for himself and Khanwilkar, J, said that there is an inherent difference between active euthanasia and passive euthanasia as the former entails a positive affirmative act, while the latter relates to withdrawal of life support measures or withholding of medical treatment meant for artificially prolonging life. Withdrawal of treatment in an irreversible situation is different from not treating or attending to a patient and that once passive euthanasia is recognized in law regard being had to the right to die with dignity when life is ebbing out and when the prolongation is done sans purpose, neither the social morality nor the doctors‘ dilemma or fear will have any place.

Living Will versus Advance Medical Directive:

The Court also refrained from using the term ‘living will’ and said that the concept ‘advance medical directive’ should be applied in our country. To understand both the concepts, the Court also provided with the definitions:

The Black’s Law Dictionary defines an Advance Medical Directive as,

“a legal document explaining one’s wishes about medical treatment if one becomes incompetent or unable to communicate.”

A Living Will, on the other hand, is

“a document prescribing a person’s wishes regarding the medical treatment the person would want if he was unable to share his wishes with the health care provider.”

Advance Medical Directive:

Laying down detailed safeguards and directions with respect to Advance Medical Directive, the Court that:

  • the said document can be executed by an adult who is of a sound and healthy state of mind and in a position to communicate, relate and comprehend the purpose and consequences of executing the document. However, it should be voluntarily executed and without any coercion or inducement or compulsion and after having full knowledge or information and must have characteristics of an informed consent given without any undue influence or constraint.
  • The said document shall be in writing clearly stating as to when medical treatment may be withdrawn, or no specific medical treatment shall be given which will only have the effect of delaying the process of death that may otherwise cause him/her pain, anguish and suffering and further put him/her in a state of indignity.
  • It should be signed by the executor in the presence of two attesting witnesses, preferably independent, and countersigned by 173 the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the concerned District Judge.
  • If permission to withdraw medical treatment is refused by the Medical Board, it would be open to the executor of the Advance Directive or his family members or even the treating doctor or the hospital staff to approach the High Court by way of writ petition under Article 226 of the Constitution.
  • Also, an individual may withdraw or alter the Advance Directive at any time when he/she has the capacity to do so and by following the same procedure as provided for recording of Advance Directive. Withdrawal or revocation of an Advance Directive must be in writing.

Absence of Advance Medical Directive:

  • In cases where the patient is terminally ill and undergoing prolonged treatment in respect of ailment which is incurable or where there is no hope of being cured, the physician may inform the hospital which, in turn, shall constitute a Hospital Medical Board (HMB).
  • HMB, after discussing with the family physician and the family members of the patient, may form a preliminary opinion on whether or not to withdraw the treatment. The final decision, however, will be endorsed by JMFC after it has visited the patient, verified the medical reports, examined the condition of the patient and discussed with the family members of the patient.

Sikri, J:

It is an undisputed that Doctors’ primary duty is to provide treatment and save life but not in the case when a person has already expressed his desire of not being subjected to any kind of treatment. It is a common law right of people, of any civilized country, to refuse unwanted medical treatment and no person can force him/her to take any medical treatment which the person does not desire to continue with.

Chandrachud, J:

While upholding the legality of passive euthanasia (voluntary and nonvoluntary) and in recognising the importance of advance directives, the present judgment draws sustenance from the constitutional values of liberty, dignity, autonomy and privacy. In order to lend assurance to a decision taken by the treating doctor in good faith, this judgment has mandated the setting up of committees to exercise a supervisory role and function. Besides lending assurance to the decision of the treating doctors, the setting up of such committees and the processing of a proposed decision through the committee will protect the ultimate decision that is taken from an imputation of a lack of bona fides.

Bhushan, J:

In   cases   of incompetent patients who are unable to take an informed decision, “the best interests principle” be applied and such   decision   be   taken   by   specified   competent   medical experts   and   be   implemented   after   providing   a   cooling period to enable aggrieved person to approach the court of law.

Conclusion:

  • Right to die with dignity is a fundamental right.
  • an adult human being having mental capacity   to   take   an   informed   decision   has   right   to refuse medical treatment including withdrawal from life saving devices.
  • A person of competent mental faculty is entitled to execute an advance medical directive in accordance with safeguards.
  • In case of incompetent patients and absence of advance medical directive, “the best interest principle” is to be applied and decision is to be taken by competent experts.

The Court, however, made clear that the Advance Directives and the safeguards as mentioned in the judgment will remain in force till the Parliament makes legislation on this subject. [Common Cause v. Union of India, 2018 SCC OnLine SC 208, decided on 09.03.2018]

To read the background of the case, click here.

Hot Off The PressNews

On Day 4 of the Aadhaar hearing, the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ, heard submissions of Senior Advocate Shyam Divan who continued with discussing the various provisions of the Aadhaar Act, 2016. On Day 3 of the hearing, Shyam Divan had discussed the scope and applicability of the 9-judge bench Privacy verdict on the Aadhaar issue and was taking the Court through various provisions of the Aadhaar Act, 2016 when the Bench rose for the day. Below are the highlights from Day 4 of the hearing:

Discussion on Section 59 of the Aadhaar Act, 2016:

  • Shyam DivanSection 59 of the Aadhaar Act, which validates all acts of the UIDAI prior to the Act, applies only to central government actions, as per its text. This section does not control acts of private entities, like enrolment agencies. Their actions are not protected.
  • Sikri, J: Central Government appointed UIDAI in the pre-Act era, and all the acts flow from that.
  • Shyam Divan: The notification establishing the UIDAI might protect the actions of the Central Government in entering into the MoU, but doesn’t cover the actions of the registrars.
  • Chandrachud, J: Actions of the registrars are traced back to the MoU.
  • Shyam Divan: Enrollment agencies are not covered even under the MoUs. As for the Registrars, there actions are not the actions of the central government. Therefore, the enrollment prior to the Act are not validated by Section 59. In any case, you cannot have a retrospective validation of a fundamental right violation.
  • Chandrachud, J: Privacy judgment says that there must be a basis in law. Section 59 attempts to provide that by bringing about a legal fiction. It will have to be considered how you deal with data breaches prior to the Act.
  • Shyam Divan: Informed consent is crucial, and you can’t have a retrospective validation saying that there was always consent, prior to the Act. Even if this provision is to be upheld, it should be given the narrowest reasonable construction.

Heads of challenge to the Aadhaar Act as specified and explained by Shyam Divan :

  • Surveillance: 
    • The State is empowered to collect records over the course of an individual’s lifetime. On the basis of aggregation, over time, the State acquires a profile of an individual, a community, a segment of society. The Constitution does not permit a surveillance State.
    • Every electronic device linked to the internet has a unique number. In addition when the device is linked to CIDR, the devices exchange information.The device is assigned a number qua Aadhaar. A specific ID at the first interaction. Thereafter, the transmission will be recognised as emanating from that device.
    • A unique electronic path attaches to each transmission. This identifies the links through which the transmission is done. Each link is identifiable. It is technically possible to track every transaction. It is possible to track the location of every device in real time.
    • Discussion between Chandrachud, J and Shyam Divan:
      • Chandrachud, J: To what extent the Court can go into questions of technical evidence? There is also a distinction between the existence of a mechanism and its abuse. If the distinction between fingerprints on your iPhone and Aadhaar is only if degree. Should the Court second-guess the decision of the executive government, especially when no system in the world is secure?
      • Shyam Divan: These affidavits confirm that there is a complete mapping of the electronic path, which happens in real time, and that you can track the location.
      • Chandrachud, J: Aren’t we accepting Google Maps tracking us, and other private corporations?
      • Shyam Divan: When you are tracked by the State in real time, it is tantamount to a police State. The Constitution does not allow this. Google is not the Indian State, and the issue is one of consent.  Google, powerful though it is, is not as powerful as the State.
      • Chandrachud, J: I should have no objections to the State knowing whether I’m paying my taxes. So there should be a distinction between collecting data and using it. If the use of data is limited to its purpose, then what is the problem with collection. We live in times of terrorism and money laundering and welfare expenditure, and this has to be balanced. Surveillance is about how data is used, not collected.
      • Senior Advocate Kapil Sibal: The problem is of giving the State that kind of information. ‘Big brother’ will have the information. He may use it and you won’t know it. By the time you do, he will become a bigger brother.
      • Shyam Divan: The point of this whole case is to prevent that situation where ‘Big Brother’ is watching.
  • Violation of Privacy: Between 2010 and 2016, there was no law authorising the violation of privacy. Even after the Aadhaar Act, the violation continues. The citizen is compelled to report her activities to the State through the electronic footprint. Even for availing of subsidies, an alternative means of identification should be allowed. In a digital society, an individual has the right to protect herself by maintaining control over personal information
  • Limited Government: Constitution is not about the power of the State but about limits to that power. Aadhaar allows the State to dominate the individual through an architecture that enables profiling, and by the power to cause civil death by deactivating Aadhaar. Instead of the State being transparent to the individual, the individual is made transparent to the State.
  • Aadhaar Act being passed as a Money Bill
  • Violation of Articles 14 and 21 of the Constitution:
    • There is no informed consent. There is no opt-out option. UIDAI has no direct relationship with the collecting agencies. The data collected and stored lacks integrity.
    • Biometrics are untested, and probabilistic. The use of biometrics has led to exclusion from welfare schemes. If biometrics don’t work, then a flesh and blood individual ceases to exist. If your biometrics don’t match, you become a ghost. A citizen in a democratic society has the right and choice to identify herself in a reasonable manner. Mandating a single highly intrusive form of identity is inconsistent with democracy.
    • Authentication records include the time of authentication and the requesting entity. This can be stored for 2 + 5 years. This enables real-time surveillance.
    • Information about the specific details of the CIDR is not in the public domain because of natural security concerns. (Answering Chandrachud, J’s question as to who maintains the CIDR)
    • Private enrollment agencies cannot be entrusted with the crucial task of ensuring informed consent.
    • Definition of “resident” is arbitrary and has no verification magazine.
    • The individual has a right to remain free of monitoring as long as they have not violated any criminal law.
    • On cancellation of Aadhaar, the services will be disabled personally. You can just switch off a person.

The bench will now continue the hearing on 30.01.2018.

Also read the highlights from Day 1, Day 2 and Day 3 of the hearing.

Source: twitter.com/gautambhatia88

Hot Off The PressNews

Supreme Court: The 5-judge Constitution bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ reserved the verdict on whether or not a terminally ill patient has a right to die with dignity.

The Court was hearing the reference of the 3-judge bench of P. Sathasivam, CJ, Ranjan Gogoi and Shiva Kirti Singh, JJ that has, in  Common Cause v. Union of India, (2014) 5 SCC 338, referred the matter relating to right to die or euthanasia to a Constitution Bench and noted:

“although the Constitution Bench in Gian Kaur v. State of Punjab, (1996) 2 SCC 648 upheld that the ‘right to live with dignity’ under Article 21 will be inclusive of ‘right to die with dignity’, the decision does not arrive at a conclusion for validity of euthanasia be it active or passive. So, the only judgment that holds the field in regard to euthanasia in India is Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454, which upholds the validity of passive euthanasia and lays down an elaborate procedure for executing the same on the wrong premise that the Constitution Bench in Gian Kaur had upheld the same.”

The bench had said that it was extremely important to have a clear enunciation of law on euthanasia and hence, invited the Constitution bench to lay down exhaustive guidelines in this regard.

Earlier, in Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 SCC 454, the bench of Markandey Katju and Gyan Sudha Misra, JJ, had refused to allow Aruna Shaunbaug, who had been the centre of the euthanasia debate as she spent 42 years of her life in a Permanent Vegetative State, to be euthanised but allowed terminally ill patients to choose to be passively euthanised. It was held that passive euthanasia can also only be allowed by the High Court and an application should be moved before it in this regard. Allowing passive euthanasia, the bench had said:

“if we leave it solely to the patient’s relatives or to the doctors or next friend to decide whether to withdraw the life support of an incompetent person there is always a risk in our country that this may be misused by some unscrupulous persons who wish to inherit or otherwise grab the property of the patient. Considering the low ethical levels prevailing in our society today and the rampant commercialisation and corruption, we cannot rule out the possibility that unscrupulous persons with the help of some unscrupulous doctors may fabricate material to show that it is a terminal case with no chance of recovery.”

The 5-judge bench heard the matter for 2 days continuously and will pronounce the verdict soon.

Case BriefsSupreme Court

Supreme Court: In the petition where directions for the rehabilitation of the widows of Vrindavan were sought so as to bring them to a stage where they can live with dignity, the bench of Madan B. Lokur and Deepak Gupta, JJ formed a 6-member Committee to study the 18 reports filed by  the National Commission for Women, the Ministry of Women and Child Development and the State of Uttar Pradesh among others and formulate an action plan within two months and in any case on or before 30th November, 2017.

The petition was filed based on the article “White Shadows of Vrindavan’ written by Atul Sethi and published in the New Delhi edition of the Times of India of 25.03.2007, which highlighted the pathetic and shocking conditions of the widows living in Vrindavan – begging in temples and then huddling together in hovels. It mentioned that the widows congregate in some ashrams or temples where they sing bhajans and are paid about Rs. 18 per day for about 7 to 8 hours of singing and that they were spending the rest of their time begging on the streets. Many of them are too old to look after themselves requiring others to pool in their resources to look after them.

Various reports were submitted before the Court after a Social Justice Bench was constituted by the Chief Justice of India in 2015. Solicitor General also submitted an Action Plan on 18.07.2017. The Court said that the effort put in by all concerned in the reports should not go waste and it must be gainfully utilized, being in a sense a gold mine of pragmatic and workable suggestions. The Committee constituted by the Court includes:

  1. Suneeta Dhar of NGO Jagori,
  2. Meera Khanna of Guild for Service
  3. Abha Singhal Joshi, Lawyer and activist
  4. A nominee of HelpAge India, an NGO that has rendered valuable assistance in this case,
  5. A nominee of Sulabh International, an NGO that has rendered valuable assistance in this case,
  6. Aparajita Singh, a lawyer practising in this Court to provideany assistance on legal issues.

The Court noticed that all that widows in some parts of the country are socially deprived and to an extent ostracized and perhaps this is the reason why many of them choose to come to Vrindavan and other ashrams where, unfortunately, they are not treated with the dignity they deserve and it is important to give voice to these hapless widows. In order to follow-up on the Agreed Action Plan submitted by the Solicitor General, the Court will take up the matter on 09.10.2017. [Environment and Consumer Protection Foundation v. Union of India, 2017 SCC OnLine SC 916, decided on 11.08.2017]

 

Case BriefsHigh Courts

Delhi High Court: Mr. R.P. Luthra,  a practising advocate had filed a writ petition before the Delhi High Court challenging the recommendation of four names by the Supreme Court Collegium in May, 2016 and certain other reliefs including a declaration that the judgments passed by the Supreme Court from time to time with regard to mechanism of appointment of judges are unconstitutional. The writ petition was dismissed by the Single bench stating that a High Court cannot declare Supreme Court’s judgment as per incuriam and that the question of suitability or merits of a candidate cannot be made the subject matter of judicial review in a writ proceeding.

Now, the petitioner had appealed against the order before Division Bench contending that the same had been passed without affording adequate opportunity to the petitioner to argue the matter. He also referred to the fact that the name of a practicing Advocate had been recommended by the Collegium by the impugned recommendation without considering the candidature of appellant and other similarly placed lawyers and therefore, contended that it was violative of Articles 14, 19 and 21 of the Constitution. He further submitted that the recommendation of the Collegium being an administrative act is open to judicial review under Article 226 referring to Centre for PIL v. Union of India, (2011) 4 SCC 1. The Division Bench rejected the contention stating that there is a basic difference between ‘eligibility’ and ‘suitability’ citing Mahesh Chandra Gupta v. Union of India, (2009) 8 SCC 273, in which it was held that the appointment of a Judge of the High Court/Supreme Court requires ‘consultation’ and fitness of a person to be appointed is evaluated in the consultation process. Therefore, the evaluation of the worth and merit of a person is a matter entirely different from eligibility of a candidate for elevation, the Bench held.

The advocate also contended that the Collegium should not have made the recommendation without finalising the Memorandum of Procedure for improvement of the Collegium System of appointment of Judges suggested by the Constitution Bench vide judgment dated 16.10.2015 in Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1. To this, the Court reverted that in the light of the order of the Constitution Bench in 2015 SCC OnLine SC 1224 dated 19.11.2015 in which while reserving the order, it was made clear that the process of appointment of Judges by the Collegium system need not remain on hold.  The appeal was dismissed accordingly. [RP Luthra v. Union of India, 2017 SCC OnLine Del 7239, decided on 01.03.2017]

 

Case BriefsHigh Courts

Gujarat High Court:A petition was filed under Article 226 of the Constitution praying to obtain a suitable writ for restraining the free public exhibition of the judgments and orders of the Court over internet by Google even if the cases are non-reportable. He pleaded that because of publication by the respondents the judgment is exhibited for free in public domain and is therefore, against the classification made by the Court.

It was also alleged that such an overzealous act of respondents is not just undisciplined and without authority, but also has had an adverse impact on personal and professional life of petitioner. The petitioner was accused in the impugned case that was published. Counsel for respondents simply pleaded that it was neither a proper nor a necessary party in the case as Google, being an automated search engine uses software known as ‘crawlers’ which would crawl the internet and find sites to add to its index and therefore, they were in no way connected to the publication on internet.

The Court observed that there are no specific provisions pointed out by the petitioner which have been violated by publication of the impugned judgment and as prayed by petitioner, it would not be covered under the ambit of Article 21 of the Constitution. It was clarified by the Court that reportable or non-reportable is the classification made for the reporting of a judgment in law-reporter and not its publication anywhere else while taking into consideration the important fact that High Court was a court of record. [Dharamraj Bhanushankar Dave v. State of Gujarat, 2015 SCC OnLine Guj 2019, decided on 19-01-2017]