Patna High Court
Case BriefsHigh Courts

Patna High Court: The Division Bench of Sanjay Karol, CJ. and P.B. Bajanthri, J., took up a petition which following issues were into consideration:

  1. Is not the State under an obligation to make available all facilities, including blood, to patients who have the disability of Thalassemia?
  2. Is the refusal of blood on account of unavailability to patients suffering from Thalassemia a ground available to the State?
  3. Is the State obligated to pay compensation to the families of the patients suffering from Thalassemia who died due to the non availability of adequate medical facilities?

Petitioners herein were individuals directly or indirectly affected by Thalassemia, and they were all committed to working to better the people suffering from this disease. The petitioners have cited seven real-life instances from where an apparent lack of proper medication and blood has resulted in five fatalities. One common contention of all was the lack of medical resources and other essential equipment for treating Thalassemia patients. Some patients and their relatives have further contended that blood is being sold on the black market. The petitioners contend that each of these instances brings forth a chilling realization for the need to introspect. One issue that all patients face is the non availability of filters in hospitals which is considered indispensable during the treatment of Thalassemia. In addition to the lack of filters in hospitals, there is also a dearth of medicines that are neither available in hospitals nor in medical stores and can only be acquired through Thalassemia Societies.

As per reported statistics, 25% of all cases reported in India are from Bihar and Uttar Pradesh. As per the March of Dimes Global Report on Birth Defects, India has a prevalence of pathological hemoglobinopathies of 1.2 per 1000 live births.

Further, treatment of Thalassemia was part of India 12th Five Year Plan (2012-17) and, in light of its incurable nature, was recognized as a disability under the Right of Persons with Disabilities Act, 2016.

The Government, through the counter affidavit filed by Respondent, highlighted the action taken and further action proposed to be taken. Some of the initiatives which the Government has taken are as follows:-

  • Carrying out awareness, education and screening programmes in the community and schools
  • 2. Establishing labs to carry on screening for hemoglobinopathies.
  • Screening Pregnant Women and their husbands to prevent the birth of children with Thalassemia.
  • Establishing prenatal diagnostic centres in medical colleges.

The Court discussed the International obligations as per the UDHR, International Covenant on Economic Social and Cultural Rights, (1966), UN Convention on Rights of Persons with Disability, World Health Organization Constitution (1946) and reiterated numerous case laws decided by the Supreme Court of India one of them being Vikash Kumar v. Union Public Service Commission, (2021) 5 SCC 370 wherein Dr. Justice D.Y Chandrachud, elaborating upon the concept of “reasonable accommodation” and the Rights of Persons with Disabilities Act, 2016, had stated: “Intrinsic to its realization is recognizing the worth of every person as an equal member of society. Respect for the dignity of others and fostering conditions in which every individual can evolve according to their capacities are key elements of a legal order which protects respects and facilitates individual autonomy… The law does this by imposing a positive obligation on the State to secure the realization of rights. It does so by mandating that the State must create conditions in which the barriers posed by disability can be overcome. The creation of an appropriate environment in which the disabled can pursue the full range of entitlements which are encompassed within human liberty is enforceable at law.”

The Court further elaborating upon the Right to Health under the Constitution discussed the cases of Consumer Education & Research Centre v. Union of India, (1995) 3 SCC 42 and National Legal Services Authority v. Union of India, (2014) 5 SCC 438. The Court finally was constrained to direct the formation of an independent committee of doctors to take a survey of all the facilities present in the State, examine their readiness, availability, accessibility and quality, and submit a report on the same to the Chief Secretary, Government of Bihar within four months for taking appropriate action at all levels. Further directions were issued to the State:

  1. A committee comprising (i) Dr Chandra Mohan Kumar, Additional Professor, Paediatrics, AIIMS, Patna, (ii) Dr Ravikirti, Additional Professor, General Medicine, AIIMS, Patna, (iii) Dr Avinash Kumar Singh, Consultant Haematologist, Paras HMRI, Patna, (iv) Dr Bankim Das, Assistant Professor in Transfusion Medicine, AIIMS, Patna,, is constituted with a twofold mandate- (a) They shall inspect all the Institutions offering treatment to patients suffering from Thalassemia for examining their readiness, availability, accessibility and quality. (b) They shall also suggest suitable compensation for the five above named juvenile fatalities as reported by the petitioners. The report so prepared within four months to be submitted to Chief Secretary, Government of Bihar.
  2. The State is to extend all necessary help to this independent committee in the formation of this comprehensive report.
  3. The Chief Secretary, Government of Bihar, upon receipt of such report to take action. He will also take appropriate action concerning the compensation recommended by the Committee formed.
  4. The State must take all possible efforts to ensure that health-related needs, most importantly, as well as others, are met for those suffering from Thalassemia, and for vulnerable groups as a whole.
  5. For the two cases, namely Shubham (aged seven years) and Md. Talha Tanveer (aged three years) highlighted by petitioners, the Government is to appoint an officer to verify the details and provide all the assistance permissible under the law to ensure that the number of fatalities is not increased beyond what has already occurred.
  6. Government to explore the possibilities of appointing a nodal officer per district who shall be responsible for ensuring that needs of people belonging to vulnerable groups have their needs met, and take appropriate steps in that regard.
  7. Blood banks should be set up at the earliest in the two districts, i.e. Sheohar and Supaul, in which they are absent, and constructive steps should be taken to ensure the proper availability of blood throughout the State.
  8. The State to ensure that the second child of Shri Vijendra Yadav, as mentioned in paragraph 14(a) of the petition, is given proper care entitled to as per the authorities mentioned above in this order.
  9. Liberty reserved to the petitioners to move an application afresh if the need so arises subsequently.

[Amit Kumar Agarwal v. Union of India, 2021 SCC OnLine Pat 2777, decided on 01-11-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

For the Petitioner/s:    Mr Vishal Kumar Singh, Advocate

Mr Deepak Kumar Singh, Advocate

Mr Akash Keshav, Advocate

Ms Akanksha Malviya, Advocate

For the Respondent/s: Dr K. N. Singh (ASG)

Mr Kumar Priya Ranjan, CGC

Mr S.D. Yadav, AAG-9

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., constituted a committee to finalize the process in regard to the issuance of digital degree certificates for the students of Delhi University while directing the same Bench also observed that,

Obtaining a degree, which should have been a cause of celebration, has been turned into a complete nightmare for all these doctors who ought to have been busy rendering medical services during the pandemic.

Petitions filed were with the intent to reflect upon the sorry state of affairs at the Delhi University. Petitioners are all doctors and graduated their MBBS course in the year 2018 and 2019 and yet have been struggling to get their original degree certificates.

After failed approaches to the University, petitioners have reached out to the Court.

In an earlier petition, Court had observed that DU ought to make alternative arrangements during the COVID-19 pandemic for issuance of digital certificates, digital mark sheets and digital transcripts online along with digital signatures and security features.

Reason cited by DU for delay in issuance of the degree certificate was non-availability of paper and the fact that DU’s contract with the printer had expired.

Further, it was observed that Court was informed that steps were being taken for printing the degree certificates in an expedited manner. Despite this being the position, the tender for printing degree certificates was not finalized and it was only yesterday i.e., 3rd August, 2020 that the tender was opened. 

In an affidavit it has been informed to the Court that a Committee has been formed for looking after the security of sensitive data of academic awards, manpower requirement, University revenue, etc. 

“…looking at the urgency for the degree of the petitioners specially the medical doctors/professionals who have already completed their degree from University of Delhi and also other urgent specific cases, the University will initiate measures so that their degree can be delivered to them on priority basis and for that purpose the related data shall be given to the Digilocker to generate their digital degree.

Further, the University will develop a system to address such type of cases in a time bound manner so that degree certificate can be provided digitally.”

Insofar as Digilocker is concerned, the Court is informed that DU has registered on Digilocker only yesterday i.e., 3-08-2020.

Bench observed that despite the sufficient time being made available to the Delhi University, it is clear that adequate steps have not yet been taken to set up the process for issuance of digital degree certificates.

There is a completely callous attitude being reflected towards the plight of students.

Further, an affidavit filed by DU is lacking in several respects – in the name of the portal, the link to the portal, the form to be filled for obtaining the digital degree-certificate and is not providing a sample of the degree certificate to be issued.

Obtaining a degree, which should have been a cause of celebration, has been turned into a complete nightmare for all these doctors who ought to have been busy rendering medical services during the pandemic.

Hence in view of the above, Court constituted a Committee, which shall finalise the following:

a) The online link on the DU portal where the students can put in applications for issuance of their digital degree certificates. Alternatively, an e-mail address shall be provided where the Petitioners and similarly placed candidates can write an e-mail to obtain their degree certificates;

b) The timeline after receipt of the said email for verification and issuance of the degree certificate with the digital signature;

c) Template for the degree certificate to be issued by email;

d) Official to be responsible for affixing the digital signature and issuance of the same;

e) A sample degree certificate in favour of one of the Petitioners, duly signed with the digital signature, shall also be generated;

f) Timelines for transmission of past data to Digilocker from DU;

g) Timelines for transmission of data periodically to Digilocker so that students can easily access their certificates, transcripts, mark sheets, awards, etc.

Status report to be submitted on 07-08-2020 and matter for hearing is to be listed on the same date. [Dr Akshita Khosla v. University of Delhi, 2020 SCC OnLine Del 926, decided on 04-08-2020]

Also Read:

Del HC | “No reason why DU should not adopt technically advanced methods”; Court suggests DU to issue degree certificates online through email

Hot Off The PressNews

Supreme Court: Bench of UU Lalit, MM Shantanagoudar, and Vineet Saran, JJ., refused to interfere with the Order passed by National Green Tribunal with regard to the Vizag Gas Leak incident.

The petition was filed by LG Polymers challenging the NGT Order wherein LG Polymers was directed to pay a compensation of Rs 50 Crores and a five-member fact-finding committee to inquire into the incident was constituted.

Tribunal had issued notice to Andhra Pradesh State PCB, District Magistrate, Vishakhapatnam, Central Pollution Control Board (CPCB), Ministry of Environment, Forests & Climate Change (MoEF&CC) and LG Polymers India Private Limited.

A 5-Member committee was also constituted by the tribunal to seek detailed report on the incident.

Further, LG Polymers India Private Limited is directed to deposit an initial amount of Rs 50 Crore with District Magistrate, Visakhapatnam.

Thus, the Court ordered the appellant to raise the concerns before the Tribunal and refused to stay its Order.

Also Read:

[Breaking] Vizag Gas Leak Incident | NGT |Leakage of hazardous gas at such a scale affects public health & environment, attracts principle of ‘Strict Liability’ against enterprise; LG Polymers directed to deposit Rs 50 Crore

Hot Off The PressNews

The Government has set up a five-member committee to examine the issues related to framing of a proper, structured scheme for providing of insurance cover to the advocates and also suggest modalities for the implementation of such scheme. Union Minister for Law & Justice has set-up the committee under the chairmanship of Secretary Legal Affairs. Other members of the committee will include a senior representative from the Department of Financial Services and representative of the Department of legal affairs. The committee will also have one representative each from Bar Council of India and State Bar Councils.

In an order to this effect, Mr Ravi Shankar Prasad has directed that the committee shall recommend a comprehensive insurance scheme for the welfare of the advocated all over India to address concerns relating to untimely death and medical insurance. It states that the committee should submit its reports within three months and if the need be the committee may take opinion from all stakeholders including the representatives of the insurance companies to devise the proposed scheme. The committee shall also suggest the modalities of administration of the insurance scheme under a high powered body with adequate representatives of all stakeholders.

Earlier this month a delegation of lawyers led, among others by Shri Manan Mishra, Senior Advocate, Supreme Court of India, and which included Members of Bar Council of India and office bearers of various Advocates Associations met the Union Law Minister, Shri Ravi Shankar Prasad in connection with their concerns and demands. Union Minister had promised the delegation that the union government would seriously consider setting up of a structured scheme providing the security of insurance cover needs to address the problem of untimely death and medical insurance cover. He said the scheme may include assistance from central and state governments as also the involvement of State Bar Councils and in the representatives operating lawyer’s welfare fund.

[Source: PIB]

Ministry Of Law & Justice

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Madan B. Lokur, S. Abdul Nazeer and Deepak Gupta, JJ., in an order stated that the critical problem of “solid waste management” in Delhi certainly requires the active cooperation and assistance of the residents of Delhi.

The Bench on a careful reading of the report prepared by Ragini Jain and Almitra H. Patel in five volumes and considering the present situation of Delhi in regard to the solid waste management requested the Lt. Governor of Delhi to constitute a committee that would be responsible to go through the in-depth aspects of solid waste management in Delhi along with the cleaning of the dumpsites in Gazipur, Bhalswa, and Okhla. Further, the Court asked for the formation of a workable and implementable policy for the stated purpose.

The Supreme Court while directing the formation of the stated committee by the Lt. Governor asked them to not rush into taking any decision as the matter is of considerable importance. Also, the Committee was asked to be collaborative while the decision-making process would take place and in a manner that the cleanup mission brings a forward step instead of any hurdles for the said issue.

The matter was further listed for 27-08-2018 while asking the amicus curiae to suggest 4 to 5 people from the civil society who could be the member of the Committee. [Outrage as Parents End Life After Childs Dengue, In Re,2018 SCC OnLine SC 1016, Order dated 17-8-2018]

Hot Off The PressNews

Pursuant to the order dated 26.04.2018 of Madras High Court in Writ Petitions Nos. 14232 and 17778 of 2017, University Grants Commission (UGC) has constituted a Committee consisting of Prof. R.C. Deka, Former Director, AIIMS, New Delhi (Chairman), Dr. O.P. Kalra, Vice-Chancellor Pt. B.D. Sharma University of Health Sciences Rohtak; Prof. (Ms.) Saroj Chooramani Gopal, Former VC, King George Medical University, Lucknow; Prof. Mahesh Verma Director, Maulana Azad Institute of Dental Sciences, New Delhi; Prof.  Dr. Ajay S. Chandanwale, Dean, Byramjee Jeejeebhoy Government Medical College & Sassoon General Hospitals, Pune; Shri S.K. Ray, Former Additional Secretary & Financial Advisor, MHRD and nominee of each of Ministry of Health & Family Welfare, Dental Council of India, Medical Council of India and Ministry of Human Resource Development to regulate the fees chargeable by self-financed Deemed to be Universities in Medical and Dental Courses.

Ministry of Human Resource Development

Hot Off The PressNews

The Ministry of Corporate Affairs (MCA) has constituted a 10 Member Committee, headed by the Secretary of Ministry of Corporate Affairs, for review of the penal provisions in the Companies Act, 2013 may be setup to examine ‘de-criminalisation’ of certain offences. The MCA seeks to review offences under the Companies Act, 2013 as some of the offences may be required to be decriminalised and handled in an in-house mechanism, where a penalty could be levied in instances of default. This would also allow the trial courts to pay more attention on offences of serious nature. Consequently, it has been decided that the existing compoundable offences in the Companies Act, 2013 viz. offences punishable with fine only or punishable with fine or imprisonment or both may be examined and a decision may be taken as to whether any of such offences may be considered as ‘civil wrongs’ or ‘defaults’ where a penalty by an adjudicating officer may be imposed in the first place and only consequent to further non-compliance of the order of such authority will it be categorised as an offence triable by a special court.

It is also required to be seen as to whether any non-compoundable offences viz. offence punishable with imprisonment only, or punishable with imprisonment and also with fineunder the Companies Act, 2013 may be made compoundable. The Committee shall submit its report within thirty days to the Central Government for consideration of its recommendations.

The terms of reference of the Committee are as follows:

  1. To examine the nature of all ‘acts’ categorised as compoundable offences viz. offences punishable with fine only or punishable with fine or imprisonment or both under the CA-13 and recommend if any of such ‘acts’ may be re-categorised as ‘acts’ which attract civil liabilities wherein the company and its ‘officers in default’ are liable for penalty;
  2. To review the provisions relating to non-compoundable offences and recommend whether any such provisions need to be re-categorised as compoundable offence;
  3. To examine the existing mechanism of levy of penalty under the CA-13 and suggest any improvements thereon;
  4. To lay down the broad contours of an in-house adjudicatory mechanism where penalty may be levied in a MCA21 system driven manner so that discretion is minimised;
  5. To take necessary steps in formulation of draft changes in the law;
  6. Any other matter which may be relevant in this regard.

The Committee’s constitution, under the Chairmanship of Secretary, is the following:

(1) Secretary,  Ministry of Corporate Affairs Chairperson
(2) Shri T.K. Vishwanathan, Former Secretary General Lok Sabha and Chairman, BLRC Member
(3) Shri Uday Kotak, MD, Kotak Mahindra Bank Member
(4) Shri Shardul S Shroff, Executive  Chairman, Shardul Amarchand Mangaldas & Co. Member
(5) Shri Ajay Bahl, Founder Managing Partner, AZB & Partners Member
(6) Shri Amarjit Chopra, Senior Partner, GSA Associate Member
(7) Shri Arghya Sengupta, Vidhi Centre for Legal Policy Member
(8) Shri Sidharth Birla, Former President, FICCI Member
(9) Ms. Preeti Malhotra, Partner and Executive Director of Smart Group Member
(10) Joint Secretary (Policy), Ministry of Corporate Affairs Member-Secretary

Ministry of Corporate Affairs

Case BriefsSupreme Court

Supreme Court: In a case where the Niji Vyavasayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007′, the Admissions Rules, 2008 and the Madhya Pradesh Private Medical and Dental Post Graduate Courses Entrance Examination Rules, 2009, that regulate the admission of students in post graduate courses in private professional educational institutions and deal with fixation of fee and reservation of seats, the Court held that education is treated as a noble ‘occupation’ on ‘no profit no loss’ basis. Thus, those who establish and are managing the educational institutions are not expected to indulge in profiteering or commercialise this noble activity.

The constitutional bench comprising of Anil R Dave, Dr. A K Sikri, R K Agrawal, Adarsh K Goel and R Banumathi, JJ held that though the right to establish and administer an institution includes the right to admit students and to set up a reasonable fee structure, fixing of rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions. The State can forbid charging of capitation fee and profiteering. The object of setting up educational institution is not to make profit. There could, however, be a reasonable revenue surplus for development of education. Hence, it was held that the unitary CET will tackle the capitation fee and bring about transparency.

Holding that for admission, merit must play an important role, the Court held that such merit should be determined either by the marks that students obtained at qualifying examination or at the CET conducted by the institutions or in the case of professional colleges, by Government Agencies.

Considering the corruption in the MCI, the Court constituted and Oversight Committee to oversee the functioning of the MCI consisting of the following members:

  1. Justice R.M. Lodha, former Chief Justice of India
  2. (Dr.) Shiv Sareen, Director, Institute of Liver and Biliary Sciences
  3. Shri Vinod Rai, former Comptroller & Auditor General of India

It was hence said that to achieve fulfillment of twin objectives of transparency and merit the State is permitted to provide a procedure of holding a CET in the interest of securing fair and merit based admissions and preventing maladministration. [Modern Dental College and Research Centre v. State of Madhya Pradesh, 2016 SCC OnLine SC 373, decided on 02.05.2016]