Case BriefsSupreme Court

Supreme Court: In a landmark case, the 3-judge Bench comprising of L. Nageswara Rao, B. R. Gavai and A.S. Bopanna, JJ., upheld sex workers right to identity and issued detailed directions for their protection and upliftment.

The directions ranged from prohibiting police actions against consenting sex workers, police and medical protections for sex workers being victim of sexual assault, holding media accountable for voyeurism on revealing identity of sex workers to directing UIDAI to issue Adhar Card for them without insisting on address proof.

The Court invoked Article 142 of the Constitution to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role. The Court remarked,

“The constitutional regard for human decency and dignity has been explicitly incorporated into Article 21 by this Court. Needless to say, this basic protection of human decency and dignity extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children.”

Constitution of Special Penal

By an order dated 19-07-2011, the Court had constituted a panel with Mr. Pradip Ghosh as the Chairman, Mr. Jayant Bhushan, Senior counsel, Usha Multipurpose Co-operative Society through its President/Secretary, Durbar Mahila Samanwaya Committee through its President/Secretary, and Roshni through Ms. Saima Hasan to assist and advise the Court for giving suitable directions in the matter. The terms of reference made to the panel were:

“(1) Prevention of trafficking,

(2) Rehabilitation of sex workers who wish to leave sex work, and

(3) Conditions conducive for sex workers who wish to continue working as sex workers with dignity.”

Later on, by an order dated 26-07-2012, the Court had modified the third term of reference to conditions conducive to sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution of India.

Penal Report and Recommendations

After conducting a detailed discussion with all the concerned stakeholders, the Panel submitted a comprehensive report and the recommendations made by the panel were considered by the Union Government and a draft legislation was published incorporating the recommendations so made. Thereafter, periodically adjournments were taken by the Union government on the ground that the Bill is on the anvil.

Noticeably, the panel had recommended in respect of the third term of reference in the following terms:

  • “When it is clear that the sex worker is an adult and is participating with consent, the police must refrain from interfering or taking any criminal action. The panel noted, There have been concerns that police view sex workers differently from others. When a sex worker makes a complaint of criminal/sexual/any other type of offence, the police must take it seriously and act in accordance with law.
  • Any sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault, including immediate medical assistance, in accordance with Section 357C of the CrPC, 1973 read with “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence”, Ministry of Health and Family Welfare (March, 2014).
  • Whenever there is a raid on any brothel, since voluntary sex work is not illegal and only running the brothel is unlawful, the sex workers concerned should not be arrested or penalised or harassed or victimised.
  • The State Governments may be directed to do a survey of all ITPA Protective Homes so that cases of adult women, who are detained against their will can be reviewed and processed for release in a time-bound manner.
  • Police should treat all sex workers with dignity and should not abuse them, both verbally and physically, subject them to violence or coerce them into any sexual activity.

“It has been noticed that the attitude of the police to sex workers is often brutal and violent. It is as if they are a class whose rights are not recognised. The police and other law enforcement agencies should be sensitised to the rights of sex workers who also enjoy all basic human rights and other rights guaranteed in the Constitution to all citizens.”

  • The Press Council of India should be urged to issue appropriate guidelines for the media to take utmost care not to reveal the identities of sex workers, during arrest, raid and rescue operations, whether as victims or accused and not to publish or telecast any photos that would result in disclosure of such identities.
  • The newly introduced Section 354C, IPC which makes voyeurism a criminal offence, should be strictly enforced against electronic media, in order to prohibit telecasting photos of sex workers with their clients in the garb of capturing the rescue operation.
  • Measures that sex workers employ for their health and safety (e.g., use of condoms, 12 etc.) must neither be construed as offences nor seen as evidence of commission of an offence.
  • The Central Government and the State Governments must involve the sex workers and/or their representatives in all decision-making processes, including planning, designing and implementing any policy or programme for the sex workers or formulating any change/reform in the laws relating to sex work.
  • The Central Government and the State Governments should carry out workshops for educating the sex workers abut their rights vis-a-vis the legality of sex work, rights and obligations of the police and what is permitted/prohibited under the law. Sex workers can also be informed as to how they can get access to the judicial system to enforce their rights and prevent unnecessary harassment at the hands of traffickers or police.
  • No child of a sex worker should be separated from the mother merely on the ground that she is in the sex trade. Further, if a minor is found living in a brothel or with sex workers, it should not be presumed that he/she has been trafficked. In case the sex worker claims that he/she is her son/daughter, tests can be done to determine if the claim is correct and if so, the minor should not be forcibly separated.”

Directions by the Court

Considering that no legislation has been made till date even though the recommendations were made by the Panel in the year 2016, the Court exercised its powers under Article 142 of the Constitution to implement the abovementioned recommendations. Accordingly, the State Governments/ UTs were directed to act in strict compliance of the recommendations by the panel. Similarly, the competent authorities under the Immoral Traffic (Prevention) Act, 1956 were directed to comply with the provisions of the Act while the Union Government was directed to file its response to the recommendations made by the panel within a period of six weeks. The Court added,

“It need not be gainsaid that notwithstanding the profession, every individual in this country has a right to a dignified life under Article 21 of the Constitution of India. The Constitutional protection that is given to all individuals in this country shall be kept in mind by the authorities who have a duty under Immoral Traffic (Prevention) Act,1956.”

Aadhaar Card for Sex Workers

With regard to non-issuance of Aadhaar Cards to sex workers as they were unable to produce proof of their residence, earlier, the Court had issued notice to UIDAI and sought its suggestions in respect of waiving the requirement of residence proof for the sex workers. The UIDAI had proposed that sex workers who are on NACO’s list can be issued Aadhar Cards without having to submit a residence proof, provided a ‘proforma certificate’ is submitted by a Gazetted Officer at NACO (National AIDS Control Organisation) or the State Health Department certifying the particulars of the applicant.

Some suggestions had been made by the organisations representing sex workers for the procedure to be followed by UIDAI; i.e. the procedure to obtain Adhar by sex workers should be publicize through outreach under the Targetted Intervention Programmes and issuance of the Adhar Cards should not be restricted to sex workers on the NACO list but also be extended to those who are identified by CBOs after verification. Since UIDAI had accepted the given suggestions, the Court directed that Aadhar Cards shall be issued to sex workers. The Court emphasized,

“There shall be no breach of confidentiality in the process, including assignment of any code in the Aadhar enrolment numbers that identify the card holder as a sex worker.”

The matter is listed on 27-07-2022 for further hearing.

[Budhadev Karmaskar v. State of W.B., Criminal Appeal No(s).135 of 2010, order dated 19-05-2022]


Kamini Sharma, Editorial Assistant has put this report together


Case BriefsHigh Courts

Punjab and Haryana High Court: Stating that, every citizen of the country is entitled to the protection of his life and liberty under the Constitution of India even though he may be a hardened criminal, Vinod S. Bhardwaj, J., held that protection of law cannot be denied to a person except where the rights of the person or his liberties are to be denied to him by operation of law.

High Court remarked that, Courts’ responsibility to uphold the principles of constitutional morality, there exists a parallel duty to not infringe upon the personal relationship between two free willed adults.

Petitioners approached this Court seeking protection of their life and personal liberty from private respondents 4 to 6.

Further, they contended that they were major, aged 18 and 27 years respectively. The petitioners contended that they had performed marriage against the wishes of their parents and apprehended threat to their lives and claimed that there is a constant danger of being implicated in a false case.

Analysis, Law and Decision

High Court expressed that the Supreme Court time and again observed that, it is not Court’s domain to intervene in the matters of choice or suitability of a marriage/relationship of an individual.

The relief of protection of life and liberty guaranteed under Article 21 of the Constitution of India cannot be denied to a citizen merely because he happens to commit an offence punishable under the Indian Penal Code.

With regard to the question of protection to petitioners, it would be prudent to consider the opinion of the Supreme Court in Sunil Batra v. Delhi Admn., (1978) 4 SCC 494.

This Court found itself firmly tied down to the principle of individual autonomy, which cannot be hampered by societal expectations in a vibrant democracy. The State’s respect for individual independent choices has to be held high.

“Public Morality cannot be allowed to overshadow the constitutional morality, particularly when the legal tenability of the right to protection is paramount.”

Further, the Court added that, when the Right to life and liberty is even guaranteed to convicted criminals of serious offences, there can be no reasonable nexus to not grant the same protection to those in an “legal/illegal relationship”.

Without examining the question of legality and validity of the marriage and expressing any opinion thereon, the petition was disposed of with the directions to respondent 2-Superintendent of Police, Panipat to look into the grievances of the petitioners as set out in the petition.

However, it was clarified that, in case any criminal case was registered against the petitioner, nothing in this order shall be construed as a bar for taking appropriate action by the police authorities in accordance with law.

In view of the above, petition was disposed of. [Sunita v. State of Haryana, CRWP-3815-2022(O&M), decided on 26-4-2022]


Advocates before the Court:

Mr. Rajesh Duhan, Advocate for the petitioners.

Mr. Ashish Yadav, Additional AG Haryana.

Mr. R.K. Agnihotri, Advocate for the respondents 4 to 6

Case BriefsSupreme Court

Supreme Court: While addressing an appeal alleging solitary confinement of a death row convict, the 3-Judge Bench of Uday Umesh Lalit, S. Ravindra Bhat and P.S. Narasimha, JJ., directed local inspection by a District Judge to throw light on the ground situation.  

A appeal was filed before the Court alleging that the appellant had been placed in solitary confinement since 29-10-2006 contrary to the law laid down by the Supreme Court in Sunil Batra v. Delhi Administration, (1978) 4 SCC 494. The appellant had relied on the letter addressed by the Medical officer to the Superintendent of Prisons dated 06-11-2011 claiming that ‘the aforesaid prisoner is kept in solitary confinement since his admission to this prison on 29-10-2006’ and further that the petitioner was suffering from ‘psychosis with depression’.

Dr. Yug Mohit Chaudhry, counsel for the appellant stressed that the appellant was kept in solitary confinement right from the decision of the Sessions Court awarding him death sentence. To strengthen the argument the counsel submitted various documents including the Prison Manual in support of the submission that, as the petitioner was segregated and kept in a separate Cell that would amount to solitary confinement, in terms of the law laid down in Sunil Batra case (supra).

The State Government opposed the allegation of solitary confinement, however no specific reply was filed in the High Court controverting the basic allegations in the writ petition. The State had only requested that video conferencing be arranged to apprise the Court of the circumstances in which the petitioner had been lodged in a Cell.

The 3-judge Bench opined,

It is true that the Hon’ble Judges constituting the Bench in Sunil Batra’s case had visited the jail premises themselves in order to have first-hand knowledge about the conditions in which said petitioner was lodged. We may at this stage rely upon the local inspection to be conducted by the District Judge, Belgaum who also holds the charge as the Chairman of the District Legal Services Committee, Belgaum.”

Therefore, the Bench directed the District Judge, Belgaum to conduct a local inspection and place a report along with pictures as early as possible and latest by 25-04-2022, to enable the Court to have a clear understanding of the ground situation. To make sure the report deals with required details the Bench issued following additional directions:

  1. “The report shall concentrate on location of the barracks in which the cells of Death Row Convicts are situated.
  2. The inspection shall cover issues whether the inmates of the concerned cells are allowed to intermingle with fellow prisoners, the way the meals are served to them and the duration for which the inmates are allowed to come out of their individual cells. These are only illustrative pointers. What we want to gather is the typical life-style of Death Row Convicts and how their days are spent.”

However, the Bench clarified that the Cells which are close to the gallows and are used for keeping persons about to be executed, are different from the Cells for the Death Row Convicts.

With regard to status of Mercy Petition, the Bench directed the Registry to make copies of the file of Mercy Petition and return the same to the advocate on record concerned in a sealed cover. The matter is to be further heard on 26-04-2022.

[B.A. Umesh v. Union of India, Special Leave to Appeal (Crl.) No(s). 890 of 2022, decided on 21-04-2022]


Appearance by:

For Petitioner(s): AOR K. Paari Vendhan with Yug Mohit Chaudhry, Siddhartha Sharma, Prabu Ramasubramaniam, Payoshi Roy, Raghunatha Sethupathy B., Vishnu Unnikrishnan, Priya R, Advocates

For the Respondent(s): ASG K.M. Nataraj, AOR Arvind Kumar Sharma, AOR Shubhranshu Padhi, AAG Nikhil Goel, Sr. Advocate Sonia Mathur and Khushboo Aggarwal, Prerna Dhall, Simarjeet Singh Saluja, Shailesh Madiyal, Sanjay Kumar Tyagi, Ashish Yadav, Rakshit Jain, Vishal Banshal, Aditya K. Roy, Advocates


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Rajasthan High Court: The Division Bench of Farjand Ali and Sandeep Mehta, JJ. allowed the petition and granted parole after considering the religious philosophies, cultural, sociological and humanitarian aspects, coupled with the fundamental right guaranteed by the Constitution of India.

The facts of the case are such that the convict prisoner Nand Lal is serving the sentence awarded to him and has undergone imprisonment of around six years out of sentence of life imprisonment awarded to him including remission. Smt. Rekha, wife of the petitioner filed an application averring therein that conduct of his husband  had been exceedingly well in the jail premises and he was granted first parole by this Court for the period of 20 days which he availed satisfactorily and surrendered back to the prison on due date. It is averred in the application that she has not begotten any issue from their wedlock and thus, for want of progeny, she craves for 15 days emergent parole. The said application is pending consideration before the District Collector-cum-Chairman, District Parole Committee, Ajmer, however, no order has been passed therein till date. The instant writ petition has been preferred by convict prisoner Nand Lal through his wife Smt. Rekha seeking emergent parole under Rule 11 (1) (iii) of the Rajasthan Prisoners Release On Parole Rules, 2021 (hereinafter for short ‘the Rules of 2021’) on the ground of want of progeny.

The Court, however, instructed the police officials concerned to make an inquiry regarding family status of the convict-prisoner and place the report on record. The report stated that Smt. Rekha is legally wedded wife of the petitioner and she is residing at her matrimonial home along with her in-laws

The Court observed that having progeny for the purpose of preservation of lineage has been recognized through religious philosophies, the Indian culture and various judicial pronouncements. As mentioned above, the right of progeny can be performed by conjugal association; the same has an effect of normalizing the convict and also helps to alter the behavior of the convict prisoner. The purpose of parole is to let the convict to re-enter into the mainstream of the society peacefully after his release. The wife of the prisoner has been deprived of her right to have progeny whilst she has not committed any offence and is not under any punishment. Thus, denial to the convict-prisoner to perform conjugal relationship with his wife more particularly for the purpose of progeny would adversely affect the rights of his wife.

Right of Progeny 

  1. Religious Aspect:

As per Hindu philosophy, Garbhadhan, i.e. attaining the wealth of the womb is the first of the 16 sacraments. In Judaism, Christianity, and some other Abrahamic religions the cultural mandate includes the sentence “Be fruitful and multiply and fill the Earth.” The cultural mandate was given to Adam and Eve. The preservation of lineage is also greatly emphasized by the Islamic Shariah and the Cairo declaration of human rights in Islam also supported the protection of lineage in Islam.

  1. Social Aspect

There are four Purusharths, object of human pursuit which refer to four proper goals or aims of a human life. The four purushuarths are Dharma (righteousness, moral values) Artha (prosperity, economic values), Kama (pleasure, love, psychological values) and Moksha (liberation, spiritual values, self-actualization). When a convict is suffering to live in prison, he/she is deprived to perform the abovementioned purusharths, among them, 3 of four purusharths, i.e. Dharma, Artha and Moksha are to be performed alone, however, in order to perform/exercise/pursue the fourth Purushartha, i. e. Kama, the convict is dependent on his/her spouse in case he/she is married. At the same time, the innocent spouse of the convict is also deprived to pursue the same. In a case where the innocent spouse is a woman and she desires to become a mother, the responsibility of the State is more important as for a married woman, completion of womanhood requires giving birth to a child. Her womanhood gets magnified on her becoming a mother, her image gets glorified and becomes more respectful in the family as well in the society. She should not be deprived to live in a condition wherein she has to suffer living without her husband and then without having any children from her husband for no fault of her. Hindu philosophy also advocates the importance of pitra – rin, i.e. parental debt. Our lives are the consequence of the fact that ancestors have been carrying and forwarding the said pitra rin, it is because of this, life came to us and in order to maintain the continuity of life, we must pay off this debt.

  1. Legal Aspect

The Court relied on judgment Jasvir Singh v. State of Punjab, 2015, Cri LJ 2282 and observed that Article 21 of the Constitution guarantees that no person shall be deprived of his life and personal liberty except according to procedure established by law. It includes within its ambit the prisoners also.

The Court thus observed that the spouse of the prisoner is innocent and her sexual and emotional needs associated with marital lives are effected and in order to protect the same, the prisoner ought to have been awarded cohabitation period with his spouse.

The Court thus held “though there is no express provision in the Rajasthan Prisoners Release On Parole Rules, 2021 for releasing the prisoner on parole on the ground of his wife to have progeny; yet considering the religious philosophies, cultural, sociological and humanitarian aspects, coupled with the fundamental right guaranted by the Constitution of India and while exercising extra ordinary power vested in it, this Court deem it just and proper to allow the instant writ petition.”[Nand Lal v. State, 2022 SCC OnLine Raj 678, decided on 05-04-2022]


Appearances:

For Petitioner(s) : Mr. K.R. Bhati

For Respondent(s) : Mr. Anil Joshi


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Orissa High Court: Sashikant Mishra J. allowed the criminal petition and quashed the FIR and the criminal proceeding due to inordinate delay on the part of investigating authorities.

The facts of the case are such that an FIR was lodged against the present petitioner on by the then Tahasildar, Chhendipada before the Officer-in- Charge, Chhendipada Police Station leading to registration of case for the alleged commission of offence under Sections 447/379/188/294/535/506 of Penal Code, 1860 i.e. IPC. The said case is presently pending in the Court of J.M.F.C., Chhendipada. Final Report was submitted in the case after more than 15 years. The inaction of the investigating agency complied with inordinate delay was cited as a ground by the petitioner for quashment of the FIR and the consequential criminal proceedings in the present application filed under Section 482 Cr.P.C.

Counsel for the petitioner M/s. Anirudha Das, A Das,S.C. Mishra, A. Das and A. Sahoo submitted that that continuance of the case without Final Form being submitted for as long as 15 years by itself is an abuse of the process of Court. It is further argued that the petitioner is presently aged about 72 years and has been going through tremendous mental strain and anxiety because of pendency of the criminal case and the uncertainty attached to it. Since right to speedy trial is also a part of fundamental right under Article 21 of the Constitution of India, it was contended that inaction of the investigating agency for an inordinately long period of time directly violates such right, for which the proceedings need to be quashed.

Counsel for respondents Mr. P. K. Maharaj admitting that the Final Form was not filed for as long as 15 years, however, contends that no time limit being prescribed for conclusion of a criminal proceeding, mere delay in submission of Final Form or Final Report, as the case may be, cannot be a ground to quash the Proceedings.

The Court observed that this is a case of a man against whom an FIR was lodged and investigation continued for as long as 15 years to ultimately end in a Final Report being filed. One can only imagine the stress that the petitioner would have undergone during all these years with the “Sword of Damocles” hanging over his head.

The Court further observed that pendency of a criminal proceeding, irrespective of the nature of the offence alleged, are sufficient to cause concern, anxiety and apprehension in the mind of the accused not to speak of the expenses that he may have to incur in defending himself. What is a matter of greater concern to note is that there is no explanation whatsoever from the side of the investigating agency as to the reasons for non-completion of investigation for all these years.

The Court also took note of the fact that save and except the offence under Section 506, all the other offences alleged to have been committed by the accused namely, Sections 447/379/188/294/353 of IPC, are punishable with imprisonment for terms ranging from one year to three years at the most. So even if a Final Form had been submitted, the concerned Magistrate would have been hard put to take cognizance keeping in view the provisions under Section 468 of Cr.P.C. However, that is besides the point. The crux of the matter is inordinate delay in completion of the investigation.

The Court held that the inaction of the investigating agency to conclude the investigation for as long as 15 years, that too, without offering even a semblance of explanation is a direct affront to the cherished principle of right to speedy trial ingrained in the provisions of Article 21 of the Constitution of India.

The Court held this is a fit case to exercise its inherent powers under Section 482 of Cr.P.C. to put an end to the fiasco, once for all, moreso, as the investigation has ended in Final Report True being submitted.

The Court also observed that the higher police authorities should take note of such inaction on the part of the investigating officer (s) and pass appropriate orders to be followed by all concerned so as to prevent the same from recurring in future.[Binod Bihari Shetty v. State of Orissa, CrlMC No. 112 of 2020, decided on 03-01-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Experts CornerKapil Madan


Introduction


Terrorism is a global phenomenon, with varying forms of manifestation. It is a rampant crime that many organisations and unfortunately some countries thrive on. Hence, protection of one’s country and its citizen is an obligation of the Government and they do so through counter-terrorism laws.

 

The Unlawful Activities Prevention Act, 1967 (hereinafter referred to as “UAPA”) is one such legislation. Unlawful Activities (Prevention) Amendment Act was enacted in 1967, it gained particular prominence in the year 2008-2012 after the 26/11 Mumbai terror attacks. It is an upgraded version of the TADA (Terrorist and Disruptive Activities Prevention Act, 1987) and POTA (Prevention of Terrorism Act, 2002) which lapsed and was repealed in 1995 and 2004 respectively. Due to heinous nature of terrorism, UAPA provides special procedures to decide cases with respect to terrorism. The National Investigation Agency is the central law enforcement agency tasked to deal with instances of terrorism in India.

 

It defines terrorist activities under Section 15 and offences and punishments related to terrorism and in Chapter IV, Sections 15-23 and terrorist organisations are dealt within Chapter VI, Sections 35-40. This Act grants the Centre power to declare any act they deem to be unlawful to be declared so. An unlawful activity is an act by an individual or a group that incites feelings of disaffection, and disrupts, disclaims, questions, is intended to disrupt the territorial integrity and sovereignty of the country.[1]


What is unlawful activities?


Unlawful activities in literal terms mean any activity contrary to the lawful procedure established by the legislature. According to Section 2(1)(o) of UAPA Act, an “unlawful activity”, means any action taken by individuals or associations which can be done through words, visible representation or written publications:

(i) with the intention to cede or cause severance of any part of the territory of India from the Union, either done itself or by inciting any individual or group of individuals to cause such cession or severance;

(ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or

(iii) which causes or is intended to cause disaffection against India.

 

On a critical interpretation of this definition, it can be deduced that clauses (ii) and (iii)  of the definition are quite vague and open-ended. This gives surprisingly unlimited power to the Government to declare any kind of disclaim or questions as incitement as unlawful activities, at the garb of disruption to government’s sovereignty and territorial integrity. This can (or has already) led to prejudice to one of the most essential elements of a democracy i.e. constructive criticism of its Government.


Significance of bail in criminal proceedings


The provision of bail goes back to the medieval times of Magna Carta which was drafted 800 years back and described as the keystone of individual liberty and has been consistently followed in India. Clause 39 of the Royal Charter of the Magna Carta provided that

“no free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled or deprived if his standing in any other way, nor will he be proceeded against with force, except by the lawful judgment of his equals or by the law of the land”.

 

The presumption of innocence is the cardinal rule of our criminal justice system and also finds its roots under Article 21 of the Constitution of India. The Supreme Court in several judgments have reiterated that “bail is the rule and jail is the exception”. Since presumption of innocence is attached to all the accused persons and as such they may be given the opportunity to look after and defend their own case. The Supreme Court in Sanjay Chandra v. CBI[2] has also echoed that the accused has a better chance to prepare and present his case while he is out on bail in the following words:

  1. 18. … It makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded in custody. And if public justice is to be promoted, mechanical detention should be demoted.…

 

Furthermore, the Supreme Court in Sanjay Chandra case[3] and State of U.P. v. Amarmani Tripathi[4], has observed that the following factors among others may be considered while deciding the bail application:

  • Nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
  • Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
  • Prima facie satisfaction of the court in support of the charge.

Legislative amendments in UAPA which specifically deals with stringent bail conditions


The UAPA has been amended a few times which has further strengthened the strict provisions of the Act. When it was first enacted it was meant to deal only with unlawful activities, whereby the Central Government was given the power to declare certain activities as unlawful. However, due to repeated amendments, the Act has converted itself into primary legislative enactment for “terrorist activities”. The amendments increased the powers of Central Investigating Agencies, especially the National Investigation Agency (NIA) with respect to prosecution of accused persons under the Act. Some of the amendments were introduced by the legislature in the years 2004, 2008, 2012 and 2019, wherein the 2008 amendment introduced stringent twin conditions to be applicable for grant of bail to the accused which are distinguishable from other special Acts such as Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) and Prevention of Money-Laundering Act, 2002 (PMLA). Such conditions are now contained in Section 43-D(5) of the UAPA Act which is reproduced herein-below for the sake of ease reference:

 

43-D. Modified application of certain provisions of the Code.(1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of Section 2 of the Code, and “cognizable case” as defined in that clause shall be construed accordingly.

*               *             *

 (5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:

 

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under Section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

 

A bare perusal of the aforementioned conditions envisaged under Section 43-D(5) of the Act shall makes it apparently clear that the regular bail provisions under the Act are distinct from other similar provisions in as much as the other special Acts require recording of an opinion by the Court that there are reasonable grounds for believing that the accused is “not guilty” of the alleged offence, UAPA requires recording of an opinion by the court deciding bail that there are reasonable grounds for believing that the accusation against such person is “prima facie” true.

 


Interpretation of stringent bail provisions under UAPA by various judicial forums


As already discussed above, the bail conditions in UAPA are not only stringent but are also distinct from various other special Acts enacted by the legislature in India. Therefore, it is extremely pertinent to look at the interpretation of such provisions by various judicial forums in India in order to understand its applicability in various scenarios.

 

In 2019, the landmark judgment passed by the Supreme Court of India in National Investigation Agency v. Zahoor Ahmad Shah Watali,[5] has made pertinent observations in regard to the nature of the burden on the accused and the evidence to be considered in order to reach a prima facie finding of guilt while hearing bail applications. The relevant excerpts of the judgment are reproduced hereinbelow:

 

  1. 23. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the court has to opine that the accusation is “prima facie true”, as compared to the opinion of the accused “not guilty” of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act.
  1. 24. A priori, the exercise to be undertaken by the Court at this stage—of giving reasons for grant or non-grant of bail—is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise.

 

From the above-mentioned observations it is evident that having a power, exercise of such power, and conditions of exercise of such power are three different things. Grant/denial of bail in terrorism-related offences under UAPA is a power of the designated court. Exercise of such power is bound by Section 43-D(5), which lays down a test of a lesser degree than the erstwhile TADA and POTA and other special Acts such as NDPS, PMLA. The Supreme Court has, however, released the grant of bail from this comfort by asking the court to “merely” record a finding on the basis of “broad probabilities regarding involvement in commission of a stated offence or otherwise”.

 

Further recently Delhi High Court in Asif Iqbal Tanha v. State of NCT of Delhi[6] has made it clear that prima facie burden as stated in Section 43-D(5) lies on the prosecution. Relevant excerpts of the judgment are reproduced hereinbelow for ease of convenience. Relevant excerpts of the judgment are reproduced hereinbelow for ease of reference:

  1. (l) In the statutory framework of the now repealed TADA and POTA, before allowing a bail plea, the court was required to assess whether the accused person was “not guilty” of the offence alleged; and therefore the burden was clearly on the defence to disprove the allegations on a prima facie basis. Correspondingly therefore, under Section 43D(5) of the UAPA, where, before allowing a bail plea, the court is required to assess if the accusation against an accused is prima facie true, the burden to demonstrate the prima facie veracity of the allegation must fall upon the prosecution. The requirement of being satisfied that an accused is “not guilty under TADA or POTA meant that the court must have reasons to prima facie exclude guilt; whereas the requirement of believing an accusation to be prima facie true” would mean that the court must have reason to prima facie accept guilt of the accused persons, even if on broad probabilities.

 

Thus it is clear that the bar for getting a bail under UAPA is on lighter footing when compared with other special Acts such as NDPS and PMLA. However, under the Act, bail can only be granted if the accused is able to prove that there does not, infact, exist a “prima facie” case against him.


Instances where judicial forums have granted bail to the accused under Act


In Union of India v. K.A. Najeeb[7], a three-Judge Bench of the Supreme Court headed by Chief Justice N.V. Ramana upheld the bail granted to the accused by the High Court of Kerala at Ernakulam under UAPA when the accused had undergone incarceration for a significant period even as it recognised that bail under UAPA was an exception.

  1. … courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.

 

Recently, the Bombay High Court in P.V. Varavara Rao v. National Investigation Agency[8] has  reiterated the principles expounded by the Supreme Court in K.A. Najeeb[9] judgment made pertinent observations on the interpretation of Section 43-D(5) of the Act. Relevant excerpts of the judgment are reproduced hereinbelow for ease of reference:

 

  1. As we have noted above, in a given case, the fundamental rights guaranteed in Part III of the Constitution of India to prisoners languishing in four walls of prisons could be asserted on the basis of appropriate material to show that to recognise such rights, particularly the right guaranteed under Article 21 of the Constitution of India, the walls of the prison would have to be breached, subject of course, to imposition of appropriate conditions. Imposition of conditions would be in the nature of a safety net to ensure that the undertrial/accused is made to face proceedings before the trial court. The Supreme Court in K.A. Najeeb[10], has categorically held in the context of sufferings of undertrials where the proceedings before the trial court take years to be completed, that the rigours of provisions pertaining to grant of bail found in special statutes like the UAPA will melt down where there is no likelihood of the trial being completed within a reasonable time. Therefore, such a position of law is now well recognised and it can be relied upon where on facts, the court comes to a conclusion that continued incarceration of an accused like the undertrial in the present case, would violate his right under Article 21 of the Constitution, considering the precarious health condition of such an accused. Even otherwise, in the present case also, the respondents have conceded that at least 200 witnesses will be examined by the prosecution. The charge-sheet itself runs into thousands of pages. The charge is not framed yet, and consequently, the trial is yet to commence and, even after commencement of trial, it may take a long time to complete since the prosecution intends to examine at least 200 witnesses.

 

A bare perusal of the above-mentioned case laws shall make it clear without an iota of doubt that although rigours of granting bail to the accused under the Act are strict, however in any circumstance whatsoever the same  cannot take shape of prohibition on grant of bail to the person accused of committing offences under the Act. The most recent interpretation of Section 43-D(5) by the Supreme Court in Zahoor Ahmad Shah Watali[11] contains two pertinent observation switches that support such a conclusion. Firstly Section 43-D(5) of the act is on lighter footing when compared with other special Acts such as NDPS and PMLA Act and secondly  there is no need to going into merits and demerits of the case at the stage of bail pertaining to offences under the Act. Further The Bombay High Court in P.V. Varavara Rao[12] has further made it clear that incarceration of the accused while he is under trial in a case where trial may not occur immediately is an express violation of the right guaranteed to him under Article 21 of the Indian Constitution. Thus in lieu of above the position of law is well settled and no longer per incuriam that there is no prohibition of grant of bail under the provisions of the Act and if the accused meets the criteria which has been explained above in detail, he is entitled to grant of bail under the Act.


 Applicability of Section 167(2) of CrPC 1973 pertaining to offences under the Act


Apart from abovementioned provisions of regular and anticipatory bail,  Section 167(2)(a) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Code”), grants the accused the right to be released on bail when investigation has not been completed within 90 days in case of offences punishable with death/life imprisonment or imprisonment for a term not less than 10 years, and 60 days in case of other offences. The abovesaid provisions reproduced herewith for the convenience of reference:

  1. 167.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that:

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,–

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that chapter.

 

However under the UAPA 1967 Section 43-D(2) of the Act  operates a special provision distinguishing the applicability of rights granted under Section 167(2)(a) of the Code. The provision is reproduced hereinbelow for ease of reference:

43-D. Modified application of certain provisions of the Code.

… (2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2),—

(a) the references to “fifteen days”, “ninety days” and “sixty days”, wherever they occur, shall be construed as references to “thirty days”, “ninety days” and “ninety days” respectively; and

(b) after the proviso, the following provisos shall be inserted, namely:

“Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days: Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody.

 

Thus a bare reading of the above-mentioned provision of the Act shall make it clear that there that the benefit of default bail shall be available to the accused person for the offences committed under the Act for where the investigation have not concluded within 90 days of arrest of the accused irrespective of the punishment of the alleged offences committed by him. However it is pertinent to note that the provision also gives right to the investigation agencies to seek for extension of investigation to a period of 180 days by filing a report of the Public Prosecutor indicating the progress of investigation along with specific reasons for detention of the accused.

 

Further the Supreme Court in Bikramjit Singh v. State of Punjab[13], has made pertinent observations with in regard to interpretation of grant of default bail to a person accused of commission of offences under the Act:

  1. A conspectus of the aforesaid decisions would show that so long as an application for grant of default bail is made on expiry of the period of 90 days (which application need not even be in writing) before a charge-sheet is filed, the right to default bail becomes complete. It is of no moment that the criminal court in question either does not dispose of such application before the charge-sheet is filed or disposes of such application wrongly before such charge-sheet is filed. So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted.

 

On a bare reading of the provision, the Supreme Court’s interpretation of the same , it can be perceived that the provision is fair and just to the accused as well as the investigation agencies as it tries to create a balance between  rights of an individual and a greater/larger interest of the State. However the interpretation of this provision is extremely critical in order to maintain such balance as if on one hand  the right have been granted to accused to seek default bail when investigation is not complete within stipulated time and on the other hand the investigation authorities are also entitled to seek for an extension of investigation by spelling out requisite grounds,which if allowed would disentitle the accused form obtaining default bail. Therefore there is a  high chance that the investigation authorities in a backhanded manner  may move the application for extension of time period of investigation, without notifying the accused, then the act of the court in allowing  and would deprive the accused of their statutory liberty.

 

Recently Karnataka High Court in Muzammil Pasha v. National Investigating Agency[14], has clarified the position of law on this aspect and have held that extending the time period for an investigation without hearing the accused person under the provisions of Section 43-D(2) is a gross violation of natural Justice, such an act is in grave contravention with the settled principles of law. The High Court has further gone on to hold that even if charge-sheet has been filed within the extended period of investigation , the accused cannot be deprived of his right to be released on statutory bail, as the same is a right established by procedure of law and is hence covered under the ambit of Article 21 of the Indian Constitution relevant excerpt of the judgment are reproduced hereinbelow:

 

  1. In my considered opinion, the judgment of the Supreme Court in Hitendra Vishnu Thakur v. State of Maharashtra[15] and in Sanjay Dutt v. State[16] would be applicable to the facts of the present case. Since the petitioners were not given an opportunity of being heard before passing an order on the application filed by the prosecution for extension of time for completion of the investigation and since the petitioners were not kept present before the court when the application filed by the prosecution for extension of time for completion of the investigation was being considered and Muzammil Pasha[17] since the petitioners were not notified that such an application filed by the prosecution was being considered by the court for the purpose of extending the time for completion of investigation, I am of the considered opinion that the order passed by the trial court on the application filed by the prosecution under the first proviso to Section 43-D(2)(b) of the Act of 1967 extending the time to complete the investigation is legally unsustainable and accordingly, Point 1 for consideration is answered in the negative.

*                        *                       *

 

  1. In the case on hand, immediately after completion of 90 days period prescribed under Section 167(2) of the Code for completion of the investigation, an application has been filed by the petitioners seeking statutory bail, which is also known as “default bail” on the ground that the prosecution had not completed the investigation and filed the charge-sheet. In view of the law laid down in Bikramjit Singh[18], merely for the reason that the charge-sheet Criminal Appeal No.699/2020 (arising out of SLP (Crl.) No.2333/2020) DD 26.10.2020 Muzammil Pasha[19] WP.1417/2021 C/W WP.637/2021, 640/21, 1299/21 & 1706/21 has now been filed, it will not take away the indefeasible right of the petitioners, if it has accrued in their favour. Therefore, there is no merit in the contentions of the learned ASG that the prayer made by the petitioners for grant of statutory bail under Section 167(2) of the Code cannot be considered having regard to the fact that the charge sheet has now been filed during the extended period for completion of the investigation.

35. The right to statutory bail has now been considered as a fundamental right under Article 21 of the Constitution of India, by the Supreme Court in Muzammil Pasha[20]and Bikramjit Singh[21]. Article 21 which guarantees the right to life and personal liberty is considered to be sacrosanct of our Constitution. The State has an obligation to follow fair, just and reasonable procedure prior to depriving any person this right guaranteed under Article 21.

Therefore its is imperative that the above provisions are interpreted in the light on principles of natural justice and in fair reasonable and just manner so that an accused is not deprived of his statutory rights in contravention of procedure established by law, which inturn is violative of the letter and spirit   under Article 21 of the Indian Constitution.


Conclusion


In lieu of provisions and judgments cited above , it is safe to conclude that the strict provision of bail under the Unlawful Activities Prevention Act, 1967, can in no circumstance whatsoever be interpreted as a prohibition on the grant of bail or a measure to incarcerate undertrial prisoners in cases where the trial may not commence shortly. It is also clear that in the cases pertaining to UAPA the burden of proving prima facie guilt rests on the prosecution which they need to prove on the basis of broad probabilities.  Further as far as statutory or default bail is concerned , same is also available to the accused under the Act subject to certain modifications, and the accused cannot be deprived of this right in abhorrence of principles of natural justice.  Thus it may not be wrong to say out of all the special Acts, Unlawful Activities Prevention Act, 1967 is an exception wherein higher burden lies on the prosecution to establish the prima facie guilt of the accused.


† Kapil Madan, Partner, KMA Attorneys.

†† Pulkit Pandey, Associate, KMA Attorneys.

[1] UAPA, 1967, S. 2(1)(o).

[2] (2012) 1 SCC 40.

[3] (2012) 1 SCC 40.

[4]  (2005) 8 SCC 21.

[5] (2019) 5 SCC 1.

[6] 2021 SCC OnLine Del 3253.

[7] (2021) 3 SCC 713.

[8] 2021 SCC OnLine Bom 230.

[9] (2021) 3 SCC 713.

[10] (2021) 3 SCC 713.

[11] (2019) 5 SCC 1.

[12] 2021 SCC OnLine Bom 230.

[13]  (2020) 10 SCC 616.

[14] 2021 SCC OnLine Kar 12688.

[15] (1994) 4 SCC 602.

[16] (1994) 5 SCC 402.

[17] 2021 SCC OnLine Kar 12688.

[18] (2020) 10 SCC 616.

[19] 2021 SCC OnLine Kar 12688.

[20]   2021 SCC OnLine Kar 12688.

[21] (2020) 10 SCC 616.

Case BriefsHigh Courts

Bombay High Court: While noting the failure of State Machinery in securing the presence of a person for 13 years, Division Bench of V.K. Jadhav and Shrikant D. Kulkarni, JJ., expressed that,

Article 21 of the Constitution of India guarantees that no person shall be deprived of his life or personal liberty except according to a procedure established by law. Right to life and personal liberty is the primordial right which every human being everywhere at all times ought to have it.

Investigation lacked whole hearted efforts.

Petitioner was the wife of Gangadhar Patil, who was running a proprietary concern dealing with the business of cotton in addition to his profession as an agriculturist. It was stated that he used to purchase cotton from the farmers and sell it to respondent 8 and the said respondent was liable to pay the due of Rs 58,690 and hence the husband of the petitioner requested respondent 8 to pay the outstanding bill.

Respondent 8 threatened the petitioner’s husband to kill him if he demanded the outstanding bill.

Petitioner’s husband went missing and hence her apprehension was that respondents 8 and 9 might have detained her husband by joining hands with respondent 7. Though the police failed to trace out her husband.

In view of the above, the petitioner approached the Court.

Analysis, Law and Decision

High Court stated that it had issued notices to the respondents and the Superintendent of Police was directed to personally monitor the investigation by Court’s order, though the Court had expressed dissatisfaction with the manner in which the investigation had been made so far.

Failure of the State Machinery

Bench expressed that,

We cannot overlook the fact that the State machinery has failed to take effective and concrete steps to secure the presence of the petitioner’s husband.

Court found no satisfactory answer for the unsuccessful exercise to trace out the husband of the petitioner after registration of the crime.

Elaborating further, Bench opined that the investigation lacked the devotion to achieve the goal.

Mere paperwork of investigation seems on record.

For the last 13 years, the petitioner is fighting to secure presence of her husband. The State machinery has failed to produce the petitioner’s husband, even after a decade, it is a sad state of affairs on the part of State machinery.

 In case of Nilibati Behera Alias Lauta Behera v. State of Orissa, (1993) 2 SCC 746, the Supreme Court by exercising Article 32 and 142 was pleased to award compensation having regard to the facts of the case.

In case of D.K. Basu Vs. State of West Bengal, (1997) 1 SCC 416, the  Supreme Court was pleased to issue mandatory directions to the police authorities in respect of custodial violence, torture, etc. and monetary compensation.

In case of Rudul Sah v. State of Bihar, (1983) 4 SCC 141, the Supreme Court was pleased to award interim compensation of Rs 30,000/- to the petitioner.

In view of the High Court, petitioner made out a case to award exemplary costs.

Calling it a case of infringement of the right to life and personal liberty, Court expressed that it is very sad that the petitioner lady after a fight of 13 years also could not get fruits and there seems to be no chance of her securing her husband’s presence anymore.

Noting the long fight of wife for almost a decade to exercise a fundamental right guaranteed under the Constitution, Court granted Rs 50,000 to the petitioner.

Though the investigation is yet to be continued and should not be closed on account of disposal of this petition. [Kamalbai v. State of Maharashtra, 2021 SCC OnLine Bom 3694, decided on 28-10-2021]


Advocates before the Court:

P.P. Mandlik, Advocate for Petitioner

S.J. Salgare, A.P.P. for State/Respondents1 to 6 Mr S.S. Jadhavar, Advocate for Respondents 8 to 10

Case BriefsHigh Courts

Kerala High Court: The High Court of Kerala has once again advocated for animal rights and welfare as the Division Bench of A. K. Jayasankaran Nambiar and Gopinath P. JJ., held that stipulations in resident agreements prohibiting the residents from keeping pets of their choice in their individual apartments are unreasonable and unconstitutional. The Bench remarked,

“We believe the time has indeed come to nudge our citizenry into respecting the claims of other living beings that too have rights in our shared ecosystem. Compassion and empathy are the very essence of civilization and we must strive to preserve these values as part of our culture.”

The instant Public Interest Litigation was filed to challenge the stand of the office bearers of the resident association of the apartment complex of the petitioner. It was alleged that, by taking shelter under a clause in the bye-laws of the association that prohibits the residents from keeping pets of their choice in their individual apartments, the office bearers of the association had issued notices asking the residents to remove their pets from the premises.

The moot issue before the Bench was whether such stipulations in the bye-laws of resident associations or other agreements entered into by occupiers of residential apartments could withstand legal scrutiny under law?

Opining that the trajectory of animal rights jurisprudence in India had sadly been a retrograde one, the Bench stated that over the years we have virtually moved from an eco-centric worldview where animals, like humans were seen as living beings containing a life force and therefore morally worthy, to an anthropocentric one where humans alone are seen as morally worthy and privileged to enjoy the bounties that nature has to offer.

Prevention of Cruelty to Animals Act, 1960

In Animal Welfare Board of India v. A. Nagaraja,(2014) 7 SCC 547, the Supreme Court while deciding the legality of the practice of ‘Jallikattu’, had held that Prevention of Cruelty to Animals Act, 1960, is a welfare legislation, which has to be construed bearing in mind the purpose and object of the Act and the Directive Principles of State Policy. Since it is trite that welfare legislations have to be construed liberally in favour of the intended beneficiaries, it was found that any regulations or guidelines, whether statutory or otherwise, that purported to dilute or defeat the welfare legislation and the constitutional principles would need to be struck down by the courts so as to achieve the ultimate object and purpose of the welfare legislation. It was emphasized that the court has a duty under the doctrine of parens patriae to take care of the rights of animals, since they are unable to take care of themselves as against human beings.

In interpreting the provisions of the PCA Act, the Bench said,

“We have also to bear in mind the provisions of Article 48A of our Constitution that obliges the State to protect and make all endeavours to safeguard the forests and wildlife, as also Article 51A (g) of our Constitution that imposes a duty on every citizen of our country to protect and improve the natural environment and to have compassion for living creatures.”

Right to Rear Pets

Relying on Prakash v. State of Kerala, 2020 (2) KLT Online 1011, wherein the citizens’ choice to rear pets was held as traceable to their fundamental right to privacy under Article 21 of the Constitution, the Bench held that the impugned clauses in the bye-laws of resident associations, that seek to prevent owners/occupiers of residential apartments from keeping pet animals of their choice in the residential apartments owned/occupied by them, or accessing the elevators and common facilities in the apartment buildings, could not withstand legal and constitutional scrutiny.

Hence, holding that such clauses defeat the objectives of the PCA Act and the principles recognised under the Constitution, and have necessarily to be struck down as illegal and unconstitutional, the Bench expressed,
Fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they may come into operation in considering individual rights. They have been put there, as a matter of public policy and the doctrine of waiver can have no application to provisions of law, which have been enacted as a matter of constitutional policy.

Rights of Pet Owners and Competing Rights of Neighboring Residents

Opining that freedoms recognised in animals, and the co-relational right recognised in pet owners, is by no means absolute or unconditional and must necessarily be qualified by safeguards designed to protect the competing rights of others including the owners/residents of neighbouring apartments, the Bench clarified that to effectively prohibit the keeping and maintaining of pets in the residential apartments and appurtenant premises, the resident associations may stipulate reasonable conditions that must be adhered to by the owners/residents of individual apartments. The Bench also clarified that the judgment should be seen as one operating in rem.

Conclusion

In the backdrop of above, it was held that the impugned clauses should be treated as void and unenforceable in law. Consequently, resident owners’ associations and resident welfare associations were directed to desist from putting up notice boards and signposts prohibiting the keeping or entry of pets in their respective premises. [People for Animals v. State of Kerala, 2021 SCC OnLine Ker 4159, decided on 02-11-2021]


Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioners: Sri.K.S. Hariharaputhran, Sri.S.R. Prasanth, Smt. Bhanu Thilak and Smt.Sruthi K.

For Animal Welfare Board of India: Sri.Asok M.Cherian, Addl. Advocate General,

For the State of Kerala: Sri.Shyam Prasanth, Govt. Pleader,

For Respondents: Sri.Jaishankar V.Nair, Cgc, Adv.Smt.Sayujya By Adv.Sri.K.R.Rajeev Krishnan

Amicus Curiae: By Sri.Keertivas Giri

Case BriefsHigh Courts

Karnataka High Court: Krishna S. Dixit J. disposed off the petition and remarked “there is & shall be no cause of action against the foster parents in civil or criminal law concerning the alleged kidnapping of the child.”

The facts of the case involve rival claims for the custody of a toddler between a genetic mother and a foster mother; this child is christened by the genetic parents as “Master Mohammed Arhaan” and later named by the foster mother as “Adwik”.

Counsel for the foster mother submitted that she having fostered the child all these months abundant with love, affection & care and the genetic mother already has two children whereas the foster mother has none and hence a child well fostered for long cannot be parted away to the genetic mother without causing enormous violence to the foster mother. It was further submitted that in matters of custody, interest of the child is paramount and therefore the claims founded on genealogy has no merit.

Counsel for the genetic mother submitted that between a genetic mother and a foster one, the claim of the latter should be given preference as well as the agony which the genetic parents of the child have undergone since a year or so also highlights the difficulties of a lactating mother from whom the suckling infant is kept away; thus he seeks dismissal of the opposite claim.

International Convention on the Rights of the Child, 1989; Article 3 (1) of this Convention provides:

“…in all actions concerning children, whether undertaken by public or private social welfare institutions, court of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration . . .”

Similarly, Article 7(1) of the Convention says:

“The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents”. Article 8 (1) & (2) of the Convention provide for the State Parties to respect the right of child inter alia to preserve its identity, ‘name and family relations as recognized by law’. It also provides that where a child is illegally deprived of some or all of the elements of its identity, State Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily its identity.”

Article 8 (1) & (2) of the Convention provide for the State Parties to respect the right of child inter alia to preserve its identity, ‘name and family relations as recognized by law’. It also provides that where a child is illegally deprived of some or all of the elements of its identity, State Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily its identity.

Article 25 (2) of the Universal Declaration of Human Rights provides:

“Motherhood and childhood are entitled to special care and assistance…”

Article 24(1) of the International Covenant on Civil and Political Rights (ICCPR, 1966) recognizes right of the child to the measures of protection as are required by its status as a minor and the correlative duty resting on the shoulders of its family, society and the State. In October 1979 a Joint WHO/UNICEF Meeting on Infant & Young Child Feeding adopted the following statement: “Breastfeeding is an integral part of the reproductive process, the natural and ideal way of feeding the infant and unique biological and emotional basis for child development. … It is therefore a responsibility of society to promote breastfeeding and to protect pregnant and lactating mothers to many influences that would disrupt it”.

Further, Section 3(ix) of the Juvenile Justice (Care and Protection of Children) Act 2015 which enacts inter alia the above principle of paramount interest of the child reads as under:

“All decisions regarding the child shall be based on the primary consideration, that they are in the best interest of the child and to help the child to develop full potential.”

Section 2(9) of the said Act defines the term ‘the best interest of the child’ to mean – “…The basis for any decision taken regarding the child, to ensure fulfillment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development.”

The Court thus observed that breastfeeding needs to be recognized as an inalienable right of lactating mother; similarly, the right of the suckling infant for being breastfed too, has to be assimilated with mother’s right; arguably, it is a case of concurrent rights; this important attribute of motherhood, is protected under the umbrella of Fundamental Rights guaranteed under Article 21 of the Constitution of India.

On an analogy being drawn between Yashoda Maa and Devaki Maa the Court observed that unsubstantiated episodes from some history or mythology do not much guide the decision making process; ordinarily, scriptures cannot be cited as precedents or as instruments having force of law, notwithstanding the light they throw when the path we tread is shrouded in darkness; in matters like this, scriptural texts are not treated as edicts of law, unless they are legislated expressly or by necessary implication or otherwise recognized.

The Court on the argument of the foster mother  that she does not have any children whereas the genetic mother has already two at home and therefore, the custody of this child should be allowed to continue with his client remarked that its ludicrous and children are not chattel for being apportioned between their genetic mother and a stranger, on the basis of their numerical abundance; the principle of distributive justice which intends to bridge the gap between “haves and have nots” is not invocable, at least in this case

The Court remarked that having being convinced of the legitimacy and priority of the claim of the foster mother it was held that the foster mother “gracefully delivered the custody of the child to its genetic parents; the genetic mother too, with equal grace, states that the foster mother may see the child whenever her heart so desires; such kind gestures coming from two women hailing from two different religious backgrounds, are marked by their rarity, nowadays; thus, this legal battle for the custody of the pretty child is drawn to a close with a happy note, once for all.”[Husna Bano v. State of Karnataka, WP No. 16729 of 2021, decided on 24-09-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For petitioner: Mr. Sirajuddin Ahmed

For respondents: Mr. Vinod Kumar and Mr. S. Subramanya

Case BriefsHigh Courts

Rajasthan High Court: Pushpendra Singh Bhati J. disposed of the instant petition with a direction to the petitioners to appear before the Station House Officer, Police Station, Feench, Luni, District Jodhpur alongwith appropriate representation regarding their grievance. 

Facts

The facts of the present case are that petitioner is in live-in relationship with petitioner even when she was married with one. The petitioner 1 alleged in the petition that due to continuous harassment and violence, resulting out of her giving birth to a girl child, she had to make a choice of entering into a live-in relationship to live life with liberty and dignity. The present petition was filed to seek protection, as right to life is a fundamental right enshrined under Article 21 of the Constitution of India, and protection of right to life is imbibed in the same, and thus, such fundamental right cannot be done away with, except by due process of law.

Issues

The issues before this Court for consideration are:

(i) Whether the State ought to intervene in the personal relationships of adult citizens?

(ii) As to what would prevail, in case there is a conflict between law and morality; and

(iii) Whether the State, having a duty of protecting its citizens, is having any kind of restrictions, reservations or exception?

Observations

The Court relied on judgment Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 wherein it was observed that surrender of one’s autonomy to another must be willful, and their intimacy and privacy is a matter of their choice.

“64. The right to privacy enables an individual to exercise his or her autonomy, away from the glare of societal expectations. The realisation of the human personality is dependent on the autonomy of an individual. In a liberal democracy, recognition of the individual as an autonomous person is an acknowledgment of the State’s respect for the capacity of the individual to make independent choices.”

The Court relied on judgment in Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368 wherein it was observed:

“23. . . . . .The High Court has lost sight of the fact that she is a major, capable of taking her own decisions and is entitled to the right recognised by the Constitution to lead her life exactly as she pleases. Intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the state. Courts as upholders of constitutional freedoms must safeguard these freedoms. The cohesion and stability of our society depend on our syncretic culture.”

The Court relied on judgment S.S. Ahluwalia v. Union of India, (2001) 4 SCC 452  wherein it was observed that “it is the duty of the State to create a climate where members of the society belonging to different faiths, caste and creed live together and, therefore, the State has a duty to protect their life, liberty, dignity and worth of an individual which should not be jeopardized or endangered.”

 The Court thus observed that it is well- settled that it is not in the Court’s domain to intrude upon an individual’s privacy. Any scrutiny or remark upon the so-called morality of an individual’s relationship and blanket statements of condemnation especially in matters where it is not called into question, to begin with, would simply bolster an intrusion upon one’s right to choice and condone acts of unwarranted moral policing by the society at large.

It was also observed that the sanctity and supremacy of law must be protected at all costs. Even the due process of law through which the fundamental rights of any person are taken away must conform with the principles of justice and fair play and has to be reasonably administered according to the circumstances of the case i.e. there must be a proportionality between the illegality of the act and the right taken away through the due process of law.

The Court held “the present petition is disposed of, with a direction to the petitioners to appear before the Station House Officer, Police Station, Feench, Luni, District Jodhpur alongwith appropriate representation regarding their grievance. The Station House Officer, Police Station, Feench, Luni, District Jodhpur shall in turn hear the grievance of the petitioners, and after analyzing the threat perceptions, if necessitated, may pass necessary orders to provide adequate security and protection to the petitioners.”

[Leela v. State of Rajasthan, S.B. Criminal Misc (Pet.) No. 5045/2021, decided on 15-09-2021]


Appearances

For Petitioner(s): Mr. Gajendra Panwar

For Respondent(s): Mr. Arun Kumar


Arunima Bose, Editorial Assistant has reported this brief. 

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.V. Gangapurwala and Shrikant D. Kulkarni, JJ., expressed that,

In a welfare State, statutory authorities are bound, not only to pay adequate compensation, but there is also a legal obligation upon them to rehabilitate such persons. The non-fulfilment of their obligations would tantamount to forcing the said uprooted persons to become vagabonds or to indulge in anti-national activities as such sentiments would be born in them on account of such ill-treatment.

Factual Matrix

Petitioners owned agricultural lands adjacent to a National Highway and on the said lands, they had their residential houses, wells, fruit trees, bore-well, etc. which were also adjacent to National Highway.

The said road came to be converted into State Highway without payment of any compensation while expansion of the same.

It has been submitted that, respondents are trying to take forcible possession of the lands of the petitioners and respondent authorities cautioned the petitioners to use police force while taking possession. Though petitioners made it clear that they are not opposing the road widening in question but the authority should acquire their respective lands for up-gradation of the roads as per the due procedure of law.

The said up-gradation is being done in phase wise manner and petitioners are concerned with the phase of Dhangar Pimpri to Wadigodri for which the authorities are attempting to take the forceful possession of their lands under the pretext of resolution regarding adjacent lands of road which need not require acquisition.

Further, it was added that the action initiated by the respondent-authorities thereby taking forcible possession of the lands belonging to the petitioners for road widening by showing the Government Resolution was contrary to the provision of Article 300-A of the Constitution of India.

Respondent authorities stand was that they are expending the road on the existing road of 30 meters. They are upgrading the same and there is no need to acquire the lands of the adjacent land holders as they won’t be affected by the same.

Analysis, Law and Decision

Width of the road – 12 or 30 metres?

As per standards, the width of the State Highway should be 30 meters. The road in question was a District Road. As per standard width of the District Road is 12 meters. By way of notification dated 19th April, 1967, the road in question was declared as State Highway in the year 1967. The question comes when District Road came to be declared as State Highway. How the width of the road is enhanced to 30 meters. Was there any acquisition of lands of adjacent land owners by way of proceedings under the old Land Acquisition Act of 1894? No record is forthcoming from both sides in order to clear the position.

Bench stated that merely, producing maps of certain villages and copies of road development plans, may not be helpful to arrive at a conclusion and record finding to that effect as the said would be an erroneous exercise. Further, it was noted by the Bench that at some places the width of the road of 30 meters and at some, it was less than 30 meters.

The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right in a welfare State, and a constitutional right under Article 300 A of the Constitution.

Article 300 A provides that no person shall be deprived of his property save by authority of law.

 Is there an obligation to pay compensation under Article 300 A?

High Court remarked that obligation to pay compensation, though may not expressly included in Article 300 A, can be inferred from that Article. To forcibly dispossess a person of his private property without following due process of law is certainly violative of human right and so also, constitutional right provided under Article 300 A of the Constitution.

Elaborating more, High Court held that depriving persons of their immovable properties, was a clear violation of Article 21 of the Constitution.

It is not permissible for any welfare State to uproot a person and deprive him of his fundamental/constitutional/human rights, under the garb of industrial development.

In view of the present facts of the case, High Court expressed that, respondents are the State authorities and Central authorities constructing National Highway. They are expected to be model litigants and are expected to respect the rights of petitioners and follow due procedure of law when property is likely to be acquired.

In a society governed by rule of law, there should not be arbitrariness in any decision.

In the instant case, there was no conclusive proof to establish the width of road to be 30 meters and no question of acquiring lands of petitioners.

Hence, there should be a joint measurement of road in presence of the petitioners and respondents under the supervision of District Collector, Jalna and if the width of the road at respective villages is found to be 30 meters, there shall not any question of acquisition of adjacent lands of the petitioners and if otherwise, then Centre and State shall follow due process of law in acquiring the same. [Bhagauji v. State of Maharashtra, 2021 SCC OnLine Bom 982, decided on 3-07-2021]


About the Bench:

JUSTICE SANJAY VIJAYKUMAR GANGAPURWALA

He was born on 24-05-1962.

Stood third in the order of merit in LL.B. examination. Started practice in the year 1985 and joined Chambers of advocate Shri S.N.Loya. Practiced in trial Court, High Court and Debt Recovery Tribunal. Was an advocate for Financial Institutions such as Central Bank of India, Bombay Mercantile Cooperative Bank, Jalgaon Janata Sahakari Bank, many Corporate bodies and Dr.Babasaheb Ambedkar Marathwada University. Also represented Government before Justice Mane Commission. Had privilege to be the advocate of the Hon’ble the Chief Justice of the Bombay High Court.

Extracurricular activities: Is a keen sportsman played lawn tennis at National level. Represented Dr. Babasaheb Ambedkar Marthwada University six times and captained it twice in All India University Tournament. Played Basketball at State level. He was the Honourary part-time lecturer in M.P.Law College since 1991 till date of elevation as Additional Judge of the Bombay High Court on 13-3-2010.

JUSTICE SHRIKANT DATTATRAY KULKARNI

Graduated in Commerce (Hons.) from G.A. College of Commerce, Sangli. Completed LL.B. in the year 1984 from N.S. Law College, Sangli. Did LL.M. from Bharti Vidyapeeth, Pune and Diploma in Cyber Law (D.I.C.L.) from Government Law College, Mumbai and enrolled as an Advocate with Bar Council of Maharashtra & Goa in the year 1985.

Practiced at various places in Sangli District and joined judiciary in the year 1990. Promoted as Addl.District Judge in the year 2002.

Worked as Registrar (Personnel) and Registrar (Judicial) at Principal seat Bombay from 2013 to 2015. Appointed as Principal District & Sessions Judge, Ahmednagar and worked from the year 2015 to 13th July 2017.

Worked as Member Secretary, Maharashtra State Legal Services Authority from 14th July 2017 to 13th January 2020.

Elevated as Judge of Bombay High Court on 14th January 2020.


SOURCE: Bombay High Court Website

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, 2021 SCC OnLine Chh 1636, 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]